The Legality Of Torture

The decision to use torture raises a complicated set of moral and legal questions that are not easily resolved, say Tufts experts.

Medford/Somerville, Mass. [02.03.05] Often hidden from the public eye, the torture of military prisoners made international headlines following the Abu Ghraib prison scandal, which broke after photographs surfaced of American troops torturing and humiliating Iraqi detainees. The story touched off a military investigation and prompted a probing discussion among scholars, officials and citizens about the ethics of torture.

“If you've caught someone and you know that person has information, then torture for tactical information is justifiable. But if it cannot produce useful information, it is morally reprehensible,” Alfred Rubin, professor of international law professor at The Fletcher School, told The Boston Globe Magazine.

Rubin, who debated the controversial issue in the Globe with Charles Knight of the Project on Defense Alternatives at the Commonwealth Institute in Cambridge, believes that the decision to torture comes at the individual level.

“It's a moral evaluation made by the person who's doing the torturing,” he explained in the Globe. “A sadist who wants to torture is going to torture. People make up their own minds whether or not to torture.”

However, there are laws governing torture that are mandated by international charter. Individual nations are responsible for their enforcement.

“The enforcement of law is multifaceted, and the violation of law is serious,” explained Rubin. “The 1949 Geneva Conventions don't actually forbid torture; they require states to forbid it, which we do, and the same with the U.N. Convention Against Torture.”

With the Abu Ghraib scandal, however, the laws were broken. Some observers believe that the United States tacitly approved of the torture taking place there.

“Those laws have been violated in Abu Ghraib, where we were trying to keep it a secret,” Rubin told the Globe. “Those laws should be enforced.”

However, Rubin adds, the 2004 election results may indicate the American population has accepted secret government affairs like the Abu Ghraib torture scandal.

“I think a lot of [Americans] are prepared to say that power to keep secrecy belongs with the federal government, and they fool themselves into thinking they need not live with the consequences of secrecy and torture,” he said.

But a Fletcher colleague, international law professor Hurst Hannum, says the general population is not totally accepting of the government’s actions.

"There are two issues that are bothersome to people here," Hannum told The Christian Science Monitor. "One is the administration's early suggestion that torture might have been OK. The second is that the administration seems to be trying to leave itself total discretion to take what actions it needs when confronted with terrorists."

Hannum is also concerned with who is being held accountable for the acts of torture committed at Abu Ghraib.

“It seems extremely unlikely that anyone higher up is going to be prosecuted or that any disciplinary action will be taken that hasn’t already been taken,” he told the International Herald Tribune. “The good news is that they’re prosecuting and convicting people for obvious ill treatment. The bad news is, it seems to be a small number.”