Why the rules that prohibit torture are so vital now

Why the rules that prohibit torture are so vital now
By Cherie Booth
Published: March 2 2006 02:00 | Last updated: March 2 2006 02:00. Copyright by the Financial Times

Do the rules prohibiting torture really matter? My answer is emphatically "yes". Consider the media frenzy around the pictures of Abu Ghraib prison that prompted action from US officials to stamp out such incidents. Importantly, this can be attributed to the actions of a member of the military police who recognised that there had been a breach of the impressive body of jurisprudence - including the US Army field manual and the US Code of Military Conduct - that unequivocally prohibits the torture of detainees. The rules that underpin this jurisprudence are perhaps more vital than ever. They matter not only for those who suffer at the hands of others, but for all who call themselves dignified and civilised.

I speak of torture in the sense defined in the 1984 United Nations Convention against Torture and not the wider concept, which also embraces inhuman or degrading treatment. Today, the rules reflect such an impressive consensus that it is difficult to take seriously attempts to undermine them, or to construe them narrowly. The convention, to which the UK, the US and 125 other states are party, frames the prohibition in absolute terms: there can be no derogation from this commitment, even in times of war and threats to national security.

It is obvious to me that the basic reason for prohibiting torture is concern for the dignity and worth of individuals. With the exception of terrorism, it is difficult to think of a practice that more egregiously impacts on the dignity of human beings. Torture may be said to be the terrorism of the state, usually practised for the same reasons that terrorists use violence: to break the will of those they cannot persuade by lawful means.

By observing the rules against torture, and demanding their observance by others, a state also tries to ensure that other states will protect its soldiers and civilians from torture. This is the reason the senator John McCain, who was himself tortured in Vietnam, has consistently fought for the US to continue to respect the Geneva Conventions in its "war on terror".

Torture serves the powerful, but with few tangible benefits. Our own troubled history in Northern Ireland is a bitter lesson; consider the Guildford Four who, on the strength of confessions extracted by force, served 15 years in prison before their wrongful convictions were overturned. Desperate people will say whatever the torturer wants them to say, true or not.

Yet, in the real world, the absolutist position is tempered by reality. The House of Lords has recognised the difficult moral and philosophical arguments for and against torture in the oft-cited example of a "ticking bomb", and concluded that in an imperfect world the situation is not black and white. Those who argue that it has diluted the absolute prohibition on torture ignore the fact that in the real world there are few absolutes. The lords have enabled the evidence of torture to be examined on a case-by-case basis, which is the only way these matters can be resolved. The judges act as guardians against executive overreach.

It is important to be reminded of this in the context of the "war on terror". One way to ensure that the prohibition on torture is observed by the states that have agreed to it is to allow independent monitoring of prisoners. The UK government was the second of only five countries to sign up to the optional protocol to the torture convention, which allows for on-site visits by the UN Committee against Torture. If more countries became parties to the protocol it would be harder for them to continue to use torture.

At a time when the world is threatened by forces that do not accept democracy and human rights, and that think killing civilians is justified, we need a blueprint of legality and proportionality. These rules have the moral force and robustness to preserve our civilised values in the face of the new situation post-September 11 2001. We need an open debate about how to respond to these challenges while not losing sight of what makes our society worthwhile. From those who question the methods used in the fight against terror, we need recognition of the good faith of those who are democratically accountable and focused on preserving life. From our elected representatives, we need a willingness to accept a culture of justification and openness that allows an informed debate. We have everything to gain by dialogue and everything to lose by polarisation.

The writer is a human rights lawyer at Matrix Chambers. This article is based on a speech to Chatham House yesterday for the launch of the Human Rights Watch book Torture: Does It Make Us Safer? Is It Ever OK?