Jump to ContentJump to Main Navigation
Why Not Torture Terrorists?Moral, Practical, and Legal Aspects of the "Ticking Bomb" Justification for Torture$

Yuval Ginbar

Print publication date: 2008

Print ISBN-13: 9780199540914

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199540914.001.0001

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (www.oxfordscholarship.com). (c) Copyright Oxford University Press, 2019. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.  Subscriber: null; date: 17 September 2019

Part I—Introduction

Part I—Introduction

Chapter:
(p.3) 1 Part I—Introduction
Source:
Why Not Torture Terrorists?
Author(s):

Yuval Ginbar

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199540914.003.0001

Abstract and Keywords

This chapter introduces the methodology and structure of Part I, which addresses the question of whether it is morally justifiable for an individual to torture a terrorist when it is the only way to obtain information that would save many innocent lives. This scenario — the ticking bomb situation (TBS) — is to be discussed in a ‘pure’ form, free from factual doubts and society-wide or long term consequences. The chapter outlines the parameters for discussing the question, and defines the features of the presumed situation. It explains the methodological approach to be adopted in this Part: the scope is to be kept limited; positions put forward are required to maintain strict logical form; a dialogic, conversational style is to be used; and an open, eclectic approach to content is to be maintained.

Keywords:   moral philosophy, morality, consequentialism/utilitarianism, deontology, ticking bomb situation, torture, moral issues, terrorism prevention, moral agent

A. The Problem Defined

Ethica,1 a private individual, has just captured and bound a terrorist, Vicious, who has planted a time-bomb in a crowded marketplace, or has just sent a fellow terrorist, consciously and intentionally, on a suicide bombing mission there.2 The bomb is set, or planned, to explode in a few hours, and kill many innocent civilians. Is it morally justifiable for Ethica to torture Vicious, if this is the only way to get him to reveal the location of the bomb (or the suicide bomber), and thereby save the lives of all those people?

This example, in one version or another,3 has been widely used by philosophers, to the extent that it was described as ‘a standard philosopher's example’4 by one writer, and as ‘a particular kind of hackneyed modern example’5 by another. It has also been invoked in several legal cases and materials, almost all of them in Israel.6 Since the attacks on the USA on 11 September 2001, it has been the subject of a much wider debate.

In discussing this question, in addition to the above scenario, I will presume as given (ie if and only if), a string of descriptions and definitions, moral convictions, and facts relating to it. These will be necessary to keep the discussion as clear and simple as is possible; to maintain its focus, by avoiding going into issues not essential to this discussion; to protect as far as is possible the ‘purity’ of the case; and to ensure, the above notwithstanding, a smooth transition from the ‘pure’ private and theoretical case to the messy, public and practical—and eventually legal—cases in subsequent Parts.

(p.4) B. Descriptions and Definitions

As a general rule, I will stick to definitions and descriptions which are of an undisputed, non-contentious, ‘hard core of settled meaning’7 type.

Ethica’ ‘Ethica’ (E) is a private individual, namely one not acting in any official capacity, with any authority or under any instructions for such situations. Ethica is a moral agent—she is a sane adult, possessing a conception of good and a sense of justice, and capable of bringing those to bear in the circumstances. What we believe she should or should not do is what we believe every person should or should not do under similar circumstances.8 The extreme situation notwithstanding, she has enough strength of character to make a proper moral choice. As noted above, however, we do not expect her, with the time-bomb ticking away, to make complex long-term and wide-ranging moral considerations. In the words of Justice Holmes:

Detached reflection cannot be demanded in the presence of an uplifted knife.9

E's moral considerations will thus, by and large, be confined to the here and now, to those who would be immediately affected by her decision: Vicious, the innocent civilians, and herself.10

While the ‘innocent civilians’ (see below) would probably, but not neces-sarily, be her fellow-citizens, E is not worried that any of those near and dear to her may be harmed by the bomb. Nor is she in any personal danger. In other words, we assume E is not acting under anything that could be construed as ‘diminished mental capacity’ or duress (owing to personal, hence emotional involvement) and that her motivation in trying to save the innocent civilians is altruistic in the wider sense of the word.

Terrorism, terrorist’ ‘Terrorism, terrorist’ means here a policy of, or (respectively) a person wilfully engaged in, attacks deliberately targeting civilians, men (p.5) women and children, whose only ‘culpability’ is, say, their perceived ethnic, religious or national identity, in an effort to kill them to forward some political or ideological aim, the nature—or, for that matter, the morality—of which is irrelevant here. This is, again, a deliberately ‘hard core of settled meaning’ definition, aimed at facilitating the negative ‘moral conviction’ regarding it below, by excluding ‘grey areas’ concerning the morality of which there may not be wide agreement.11

Vicious’ ‘Vicious’ (V) is a terrorist, as defined above. He is a sane adult who, by planting the bomb, or sending his fellow-terrorist, consciously seeks to kill as many of the innocent civilians as possible for some political aim.

Innocent civilians’ The ‘innocent civilians’ (IC) are men, women and children who have been selected by V at random. V does not know the identity of any of those people, and is targeting them because he assumes that, in the place and time chosen, there will be many of them, and that they would generally belong to, say, the ethnic group he considers as enemies, or wishes to terrorize, or the killing of whom would best serve his purpose etc. By ‘innocent’ is meant that no pertinent moral blame can be attached to these people.12

The crowded marketplace‘ ‘The crowded marketplace’ was similarly selected by V solely because it serves his terrorist purposes best: it is crowded at that particular time, the bomb could be hidden well (or the suicide bomber would blend in with the crowd well), escape routes exist, and so on. It has no characteristics that would provide any possible justification for the act, other than the terrorist ones. Obviously, ‘marketplace’ is perfectly interchangeable with ‘railway station,’ ‘city centre,’ ‘skyscraper’, and so on.

Torture’ ‘Torture’ means ‘any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person', in our case for the purpose of ‘obtaining from him information’. This definition is taken from Art 1(1) of the UN Convention against Torture and Other Cruel, Inhuman or Degrading (p.6) Treatment or Punishment.13 For the purposes of this part of the discussion, however, the requirement of official involvement included therein has been omitted. This definition, while from a legal source, is I believe unproblematic, as it sits quite easily with philosophers' definitions of ‘torture’ in the core sense of the word.14

Justifiable’ ‘Justifiable’ is used to clarify two points. One concerns the question of whether E ‘ought to’ torture V or torture in this case is (if at all) merely ‘permissible’.15 I believe that imposing a moral duty to torture seems far reaching, and addressing the general question of how much a person is morally bound to take upon him/herself for the sake of others is not essential to the issue on hand. ‘Justifiable’ indicates vindication, rightness, even praiseworthiness of an act, but does not go so far as to impose a duty to act, and here we are thus content with finding out whether the ‘softer’ requirement of permissibility is fulfilled.16 In other words, the question of whether for E to torture V is justifiable, therefore morally permissible, will be addressed, while the question of whether it is E's moral duty to torture V will not. Rather (this is admittedly determined in anticipation of likely arguments), it will be up to the ‘opposition’ to claim that such torture is un justifiable, therefore im permissible.

Secondly, ‘justifiable’ indicates that it would be right for any moral agent to act in a given way in the given situation, the aim being to exclude any personal or particular factors that would move us to forgive, or in legal terms to ‘excuse’ E for having made a morally wrong decision.17

C. Moral Convictions

Torture (as defined above) is an immoral act, at least under most circumstances. Even those who would justify it in a TBS would consider it only a necessary, or (p.7) lesser, evil in those circumstances rather than an act which would be acceptable, say, to force V to disclose where he has hidden E's stolen car.

The act of terrorism (as defined above) is morally wrong at least under most circumstances. It is immaterial, for our purposes, whether we consider it wrong because we believe any such act to be wrong, or merely that this particular act is wrong. It follows that preventing that act, at least under most circumstances, is morally right, if the means to do so are.

D. Facts

E is capable of torturing V in a way that would ‘extract’ the vital information out of him. Now this is one quality of E that is not morally straightforward. Should a ‘moral agent’ have that capacity? Can a person with that capacity be a moral agent? These questions will form part of the discussion.

E knows with absolute certainty, or conversely must, under the circumstances accept as a given, that unless she tortures V, the bomb will explode, and the IC would die or be injured. She similarly knows or must assume with absolute certainty that if she does torture him, he will give the life-saving information, the bomb will be diffused or the bomber neutralized, and those lives saved.

To sum up, the discussion presumes that V, a terrorist, has intentionally embarked on what we consider to be an immoral and unjustifiable act of mass murder. The only, and (it must be assumed) certain, way to prevent it from happening would be for E, a moral agent, to commit an act which, at least in most other cases, we consider an evil too—namely to torture him. The question then is whether it would be morally justifiable, in the circumstances, for her to do so.

The question posed here may be complex, as may be the various ways of addressing it, but E's answer must, eventually, be a simple yes or no.

E. Methodology

In discussing the question posed in the title of this Part and putting forward my response to it, the scope will be kept limited; positions put forward will be required to maintain strict logical form; a dialogic, conversational style will be used; and an open, eclectic approach to content will be adopted. This choice will now be briefly defended, the subsequent discussion itself providing the full defence. The full explanation of the concepts of ‘minimal absolutism’ and ‘slippery surface’ which are introduced here, will also wait for that discussion.

As to scope, I will describe, but refrain from offering solutions to, one of moral philosophy's great ethical debates and the one most relevant to our topic—consequentialism (or utilitarianism) versus deontology—limiting the discussion to those issues that need to be addressed in order to answer the question on hand, (p.8) and then offering the narrowest moral position (‘minimal absolutism’) needed to defend a negative answer.

As to form, there is little need to explain that a moral position must be logically sound, that is, it must be consistent and avoid untenable inner tensions, contradictions and absurdities. I will attack the torture-justifying view for such flaws, point to the actual scope of their position (through what I call ‘slippery surface’ arguments) and defend the minimal absolutist idea in general, and the view that, within it, torture is the ideal candidate for an absolute moral prohibition in particular, as logically flawless.

However, while formal—in the case in point legal—aspects of the torture in a TBS question are discussed at length, in Parts III and IV, this study was largely motivated by the miserable failure of ‘form’ to lay the question it poses to rest. The fact that there is a formal (legal) prohibition on torture which, as will be shown here too, is clearly and unequivocally absolute, and the fact that human rights lawyers can display an impressive, indeed impeccable, array of treaties, provisions, customary rules and case-law to prove this, have simply not been enough to uphold the prohibition—not even in principle, let alone in practice. Not least, in my view, because many—including members of the government, academics and the wider public—support a general ban on torture, but are not convinced that this ban should be absolute, and specifically, in the context of twenty-first century international terrorism, that it should extend to ‘ticking bomb’ situations.

As to style, I believe that the failure just referred to dictates a discussion which, while remaining academic and not compromising on formal requirements, is able, at least potentially, to reach as many as possible of those unconvinced (or not sufficiently convinced) by formal argument. I have therefore opted, in this Part, and to a lesser extent in those which follow, to use a dialogic, conversational style of writing, which addresses the reader not only as a consumer of academic material, but as a full human being: a son or daughter, a parent, a friend, a potential victim of terrorist attacks, a potential torturer and a potential victim of torture. Hence, for instance, the extensive use of examples, detailed accounts of terrorist attacks and of torture, rhetorical questions and real-life dilemmas, as well as the use of ‘I’-the first person singular, rather than the passive form or terms such as ‘the present author’. This must not be confused with a ‘keep it simple’ style, which the subject matter simply does not allow.

As to content, and in tandem with the above, I have adopted an open, eclectic, ‘anything goes’ approach, to what is a valid moral argument. The last expression is not to be understood literally, of course—the illogical, the purely emotive, the incontrovertibly atrocious are deemed inadmissible here, save when their presence is used to show a weakness in an argument. However, I will not attempt to establish an elaborate structure within which all arguments and examples fit like pieces in a puzzle to create a perfect whole. Instead, I will allow as arguments everything that will, or may, persuade a reasonable person, a moral agent, of the morality (or immorality) of views discussed or put forward within this debate. My (p.9) approach to content may therefore be described as ‘intuitionist’ in the Rawlsian sense or in an even looser one, but it is justified, I believe, by a combination of the tempering effect produced by the logical framework to which it must conform, and the aforementioned failure of exclusive reliance on the formal.

Finally, the words of John Rawls, at the outset of his momentous work, express the nature of my own invitation to a dialogue within this much more modest undertaking:

For the purposes of this book, the views of the author and the reader are the only ones that count. The opinions of others are used only to clear our own heads.18

Notes:

(1) All terms italicized in this paragraph are defined or explained below.

(2) There is no moral (or for that matter legal) distinction between the culpability of a person who plants a bomb and one who consciously and intentionally sends another to plant (or explode with) one.

(3) See the Annex for some examples of ‘ticking bomb’ scenarios. The most important variations, ie the ‘ticking bomb’ being nuclear, and the person whose torture is required being innocent, will be discussed later in this Part, as well as (in the case of the former variation), in the conclusions of Part II.

(4) H Shue, ‘Torture’ 7 Philosophy and Public Affairs 124 (1978) 141. This article was reproduced in S Levinson (ed), Torture: A Collection (Oxford: OUP, 2004) 47–60.

(5) Lincoln Allison, ‘The Utilitarian Ethics of Punishment and Torture’ in Lincoln Allison (ed), The Utilitarian Response: The Contemporary Viability of Utilitarian Political Philosophy (London: Sage, 1990) 9–29, 23.

(6) See below, especially Part III.

(7) HLA Hart, ‘Positivism and the Separation of Law and Morals’ in RM Dworkin (ed), The Philosophy of Law (Oxford: OUP, 1977) 17–37, passim, eg 29. A philosopher, Bernard Williams, equated legal and ethical premises on this point: ‘… [in legal debates] there has to be a shared understanding of some core or central cases to make these disputes about hard cases possible. To some extent this must be equally so within the less formal structures of ethical discussions …’ (idem, Ethics and the Limits of Philosophy (London: Fontana, 1985) 96).

(8) Daniel Statman writes: ‘An agent in a moral dilemma, searching for the right answer, is not just deliberating about what he or she will do, but about what ought to be done (probably by any agent in similar circumstances), on the basis of moral principles and values.’ See idem, ‘Hard Cases and Moral Dilemmas’ 15 Law and Philosophy 117 (1996) 119. For a discussion of what a ‘moral agent’ is, or the qualities such a person should possess, see eg T Regan, ‘Introduction’ in idem (ed), Matters of Life and Death (3rd edn, New York: McGraw-Hill, 1993) 1–29, 8–11; J Rawls, A Theory of Justice (revised edn, Oxford: OUP, 1999) eg 11–12, 17. I have generally followed the latter here.

(9) Brown v US, 256 US 335 (1921) 343.

(10) I am aware that even the discussion here assumes much more time and mental composure than could be reasonably expected from a person in a real emergency.

(11) According to the Terrorism Research Centre (<http://www.terrorism.com>, accessed 28 May 2002), the FBI defines terrorism as ‘… the unlawful use of force or violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives’. This is somewhat too wide for our purposes, and includes the notion of ‘unlawfulness’, which is unsuitable here. For other definitions of terrorism and discussions thereof see eg C Greaty (ed), Terrorism (Aldershot, Hants: Dartmouth, 1996) Part I; M Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations (New York: Basic Books, 1997) 197–8; C Walker, The Prevention of Terrorism in British Law (Manchester: Manchester University Press, 1992) 7–10. For a discussion of attempts to define ‘terrorism’ in international law see eg H Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge: CUP, 2005) 18–41. At the time this study was prepared for publication, in mid-2007, there was still no internationally agreed definition of terrorism.

(12) The random nature of the attack may result in individuals to whom ‘pertinent moral blame’ may be attached (say, soldiers in a vicious occupying army) also becoming its victims, but such coincidence would not, for that very reason, alter the picture meaningfully.

(13) UNGA res 39/46, 10 December 1984, entered into force 26 June 1987. For text of human rights treaties see eg Office of the United Nations High Commissioner for Human Rights, Human Rights: A Compilation of International Instruments, vol 1 (First Part) (New York: UN 2002) and the Office's website <http://www.ohchr.org>. The question of what constitutes torture under international law is discussed in Part IV, Ch 18.

(14) B Paskins, ‘What's Wrong with Torture?’ 2 Brit J Int'l Studies 138 (1976), 146. Compare, for instance, Paskins' own ‘core’ definition: ‘Torture is the systematic and deliberate infliction of acute pain in any form by one person on another, or on a third person, in order to accomplish the purpose of the first against the will or interest of the second’ (ibid, 139). By Paskins' own admission, this definition was ‘adapted from’ Amnesty International, Report on Torture (2nd edn, London: Duckworth, 1975) 31.

(15) The distinction between the two is at the heart of Judith Jarvis Thomson's forceful argument in ‘A Defence of Abortion’ in P Singer (ed), Applied Ethics (Oxford: OUP, 1986) 37–56. Discussing a TBS, Daniel Statman takes the approach I am following here (idem, ‘The Absoluteness of the Prohibition Against Torture’ [Hebrew] 4 Mishpat u-Mimshal 161 (1997), n 26, p 172).

(26) Immanuel Kant, The Moral Law: Groundwork for the Metaphysics of Morals, trans HJ Paton (2nd edn, London: Routledge, 1991) 57/xiii (here, and henceforth, the first page number denotes the number in Paton's translation, the second the number in the second edition of Kant's original work—in this case in Kant's preface).

(16) This is in line with Charles Fried's concept of ‘right’: ‘When something is said to be right, this does not mean invariably that it must be done, but perhaps only that it may be done, that is, that it is not wrong’ (idem, Right and Wrong (Cambridge, Mass: Harvard University Press, 1978) 9).

(17) The legal issue of justification and excuse will be discussed in Part IV, Ch 19.

(18) Rawls, supra n 8, 42. For Rawls' discussion of intuitionism see ibid, 30–40.