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Torture is defined as any act that involves inflicting severe mental or physical pain on an individual by a state official for the purposes of punishment, obtaining information, intimidation, or discrimination (Office of the United Nations High Commissioner for Human Rights, 1984). It is universally prohibited in international law; Article 5 of the United Nations Universal Declaration of Human Rights expressly prohibits torture, as does Article 7 of the International Covenant on Civil and Political Rights, the Convention against Torture or Other Cruel, Inhuman or Degrading Treatment or Punishment, and the European Convention for the Protection of Human Rights and Fundamental Freedoms, among many others. The ban on torture is generally accepted as an international peremptory norm (or jus cogens), meaning that it cannot be broken under any circumstance by any state, whether or not they have ratified a specific convention banning it.
Despite this clear international legal basis for the prohibition of torture, it is still widely practised. Examples include a 2005 UN report which found torture to be widespread in China, with tactics like immersion in sewage and ripping out fingernails frequently employed by the police; claims by lawyers from Reprieve who have accused the United States of practising torture in Guantanamo Bay, as well as on special “floating prisons” where it could be practised in secret; and claims by the human right organisation B'Tselem that the majority of Palestinian detainees in Israel were subject to torture. Another high-profile example was the torture of Islam Umarpashaev that took place between 2009-2010 in the Chechen Republic of Russia, reported on by Human Rights Watch in 2011. All of these cases pose the question, can torture ever be morally justified?
It is widely accepted that torture for the purposes of punishment, intimidation, and discrimination is very difficult to defend or justify, and is normally accepted as an inhumane tool of suppression. Practising torture for the purpose of gaining information, on the other hand, presents a significantly more contentious moral debate. The first argument in favour of torture is a simple act-utilitarian one, based on concepts proposed by Bentham. This is simply that torture is justified when it is done to save civilian lives, when more are saved as a result of the use of torture than if it was not used, and when the torturer is sure that the victim has the information needed to save lives. However, the significant drawback to this approach is its vagueness; as Bellamy (2006) illustrates, it fails to specify how many civilians need to be at risk to justify torture, which leads to a dangerous slippery slope of torture being used not just out of necessity, but out of efficiency.
A more sophisticated attempt to morally justify torture comes in the form of the “ticking-time-bomb” hypothetical. It is a modified version of the act-utilitarian defence, that justifies torture when officials have knowledge of an immediate threat (like a time bomb), that will kill large numbers of civilians, but do not know its location, and they have custody of a conspirator who knows where this threat is but will have to be tortured to tell them. This justification has been popularised by American lawyer and professor Alan Dershowitz, but has also been made widely by academics, like Himma (2007). It is feasible to concede that this situation does in fact justify torture, but that is because that is what it was specifically designed to do; if a situation existed in which authorities were certain a subject knew where this bomb was and were certain that torture would get the information from them, then torture may be justified. However, a significantly problematic implication of this is that it requires us to deviate from the absolute protection that human rights are currently given under international law and accept that countries can violate human rights when deemed necessary, a monumental divergence from a key pillar of current international law. Another key drawback of this defence is that it is completely detached from reality. Bellamy (2006) notes that the evidence of torture working is at best mixed - there is not even consensus within the US security services over its effectiveness - and it would therefore be impossible for an official to be fully certain that it would be effective in a certain situation, meaning that there is a high chance that in a ticking bomb scenario torture could be used and not bring any benefits to the torturer. The second problem with this scenario is that there has only been one case in history – in Algeria in 1957 - of a situation that actually resembles the hypothetical ticking-bomb scenario. According to Bellamy, the only recorded case of the ticking bomb scenario occurred in 1957 in Algeria, when an insurgent was caught planting a bomb by the police, who suspected him of having also planted another bomb in a gasworks that would kill thousands of civilians if it exploded (it is worth noting that in this case the victim was not tortured, and the bomb never detonated). Whilst the discussion of ticking bomb terrorists is common in academic literature, its occurrence in reality is incredibly limited, and to use such a fringe case to justify challenging the universal nature of human rights is extreme at best.
Therefore, we can conclude that the ticking bomb scenario occurs incredibly rarely, and ambiguity over the actual effectiveness of torture means that torture in a ticking bomb scenario can never be morally justified in reality. On top of this, a more general right to torture remains morally unjustifiable, which although a potentially obvious conclusion, is nonetheless comforting.
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