1. HUMAN RIGHTS IN INTERNATIONAL SOCIETY – COURSEWORK ASSIGNMENT
Is the absolute prohibition on torture morally defensible?
The relationship between international society and international law is a particular political
phenomenon in the way that the former is characterised by a horizontal, rather than a vertical,
legal structure. This stems from the origin of the international state system and the creation of
the sovereign state to rule over its own jurisdiction, and to not intervene in the governing of
other sovereign states. In practice, this means that international society is without hierarchy
and without a leviathan to enforce international law, thus taking on a consent-driven character.
Since the end of World War II, states have come together to further develop an International
Legal Order – ILO – not just to regulate interaction between states, but to examine and
prescribe the relationship between a state and its citizens, namely the state’s responsibilities
and obligations to the latter. This is the human rights project, a remarkable legal edifice that
has a tangible impact on the way international society works; though the extent is hotly
contested.
The right to not be tortured is, in legal terms, of jus cogens character due to its acceptance as
custom and its prominence in key human rights texts (Gross 2005). Torture is absolutely
prohibited no matter what the circumstances: the Universal Declaration of Human Rights
forbids torture as well as cruel, inhuman or degrading treatment; the International Covenant on
Civil and Political Rights enshrines this declaration into treaty; regional treaties employ similar
language to these two crucial texts; and the United Nations Convention Against Torture,
addressing the issue of state-inflicted torture, says in no uncertain terms that torture is
prohibited at all times (Alston and Goodman 2012 p.241). It would be a mistake to give
exclusive credit to the human rights project for the outlawing of torture due to European state
practice in the 19th century, but the significance of the right to not be tortured and its position
as perhaps the most heavily protected right on paper should not be taken lightly (Langbein
2005). Alas, we must confront the ‘paradox’ (Almond in Wisnewski 2010 p.ix) that torture is
widespread and globally practiced, even seen as a necessity in nations that would typically be
associated with positive human rights records (Dorfman 2005). How do we explain this
paradox, given that; ‘No other practice except slavery is so universally and unanimously
condemned in law and human convention’ (Shue 2005 p.47)?
There are highly complex moral judgements regarding torture that have arguably taken
on a new relevance in the post 9/11 world (Alston and Goodman 2012). The heart of the matter
is the postulation that there may be circumstances that torture is morally justified, thus bringing
into question the moral justice of the absolute prohibition. This essay seeks to demonstrate that
the absolute prohibition on torture is morally defensible in specific and general terms.
Specifically, we will engage with the primary argument to which proponents of torture refer:
the Ticking Bomb Scenario – TBS – as a mitigating circumstance to justify torture and the
overlap between this particular thought experiment and the wider positions which conclude

2. that the absolute prohibition can be found morally wanting. Generally, we will examine how
these arguments represent a wider debate between legality and morality and the points that they
both intersect and diverge. What will become clear is that when we thoroughly explore the
implicit and explicit ramifications of torturing a person, no matter the circumstance, torture is
profoundly wrong and consequentially troubling. It is important to stress that the moral
argument at the heart of the question is not: is torture bad?, as it has a unique and almost
universal despicability (Wisnewski 2010 p.50); it is through understanding this uniqueness that
we will come to support the absolute prohibition. This will be further underlined by the moral
value of law generally, especially with such a clear-cut legal stance on torture, as opposed to
particular moral judgements that, although earnest, would lead to injustice. Torture is always a
tragedy. An argument to torture is one that takes a tragic situation and mistakes an illegal act
with an unjust one: it is for this reason why the absolute prohibition is legitimate.
A primary response to any stance of moral absolutism is the potential existence of
circumstances that question this morality. There are two broad and not mutually exclusive
justifications for torture in exceptional circumstances: occasions in which there are mitigating
circumstances and/or occasions in which torture is warranted, perhaps with a punitive
dimension (Wisnewski 2010 p.92). Although there is significant overlap, this essay focusses
primarily on the notion of mitigating circumstances that call into question the absolute
prohibition’s moral worth, for which we turn to the famous thought experiment: the Ticking
Bomb Scenario – TBS. In short, the premise of TBS is that a terrorist, in custody, knows the
location of a time-bomb that will later explode and kill many innocent civilians. Therefore, is
it morally justifiable to torture the terrorist, extract information about the bomb, and save the
lives of all those people (Ginbar 2010)? This leads to a consequentialist position, drawing on
concepts of utilitarian thinking, that to torture this person would be the lesser of two evils as
the crime of potentially letting innocent civilians die is far more morally repugnant than the
torturing of one person (Ginbar 2010). This thinking thus calls into question the limitations of
the absolute prohibition on torture, as to rule it out in all circumstances, even in one as
seemingly compelling as the TBS, can show a lack of appreciation of the importance of the
loss of human life that is likely to occur as a direct result of not engaging in torture. What would
therefore be more appropriate, according to this thinking, would be to overlook rare instances
like the TBS because of their compelling legitimacy. Although there are flaws in the logical
premises of the TBS in its assumptions that torture is the only effective option, to scrutinise it
in detail would be to lose sight of the purpose of the thought experiment: it is a useful starting
point to challenge the convictions of an absolutist morality (Wisnewski 2010).
A further dimension of this stance is to consider the obligation upon our political leaders
to engage in illegal practice for the benefit of our continued well-being. This is of moral value,
and takes on a particular relevance in the post 9/11 policy of enhanced interrogation; our leaders
are obliged to dirty their hands in order to achieve something that is morally beneficial to their
citizens (Walzer 2005 pp.105-107). This idea indicates our leaders have the onus to do the right
thing, even though in this case it is to torture. Although this would be illegal, the real injustice
would be for political leaders to rank their ‘moral purity’ above their obligations to their own
citizens. The course we ought to take is to combine; ‘normative condemnation of torture with
appropriate consequentialist considerations’ (Elshtain 2005 p.87). This all clearly brings into

3. question the absolute prohibition on torture, although we must appreciate that to take this stance
as the advocacy of a general practice of torture, rather than its actual function to question
absolute moral convictions, would be to construct a straw man and fail to defend the absolute
prohibition. In order to appropriately respond, we must examine explicit and implicit issues at
play in a TBS context. As well as pointing out the fundamental wrongs of torture, we will see
that the notion of ‘appropriate consequentialist considerations’ mentioned above paints an
incomplete picture of consequentialism, as when we escape the instinctive reactions to TBS-
like instances we see the ramifications of exceptional torture to be in conflict with the idea of
a lesser of two evils.
For the explicit ramifications of allowing ourselves to deviate from the absolute prohibition
under mitigating circumstances, we refer to a deontological position. The essence of this is to
understand the inherent wrong that is to torture a person which can only be articulated by
examining why torture is so abhorrent. Without this appropriate starting point, any judgement
of the potential merits of torture would be misguided (Wisnewski 2010). For the person being
tortured, the experience is inescapable due to the permanence of the pain inflicted upon a
person’s body, and in turn their very agency, along with ‘the reminder of one’s utter humiliation
and dehumanisation at the hands of another’, which culminates in the immediate and long-term
severance from society (Wiznewski 2010 p. 81-82). We ought not to forget the process has
upon those who are tasked with torturing themselves or on wider society (Gross 2005). Torture
is a unique wrong. At the moment we begin to turn to practical considerations on when to
torture, the contextual certainties, or lack of, make this appeal to the lesser of two evils an
unconvincing one. The extent to which a suspect may or may not be guilty, the yield of
information from this suspect, the actual use of this information, the suspect’s response to pain;
none of these are likely to be clear-cut (Wisnewski 2010 p.130). With an appreciation for the
evil of the action of torture, the appeal to a ‘greater good’ becomes unconvincing. Even if we
turn to a particular set of circumstances akin to a TBS and cast these uncertainties aside, the
claimed ‘benefits’ and hence moral worth of torturing a person depends upon consequential
success of torture. At this stage, this argument implicitly advocates ‘the institutionalisation of
the profession of torturer’ (Brecher in Wisnewski 2010 p.139). Such a striking notion is morally
deplorable: this exemplifies why it is so important when examining the morality of torture and
referring to mitigating circumstances to factor the actual torturing process into our judgements.
The moral defence for the absolute prohibition on torture is based upon thinking beyond
our basic instinctive response, or intuitions (Wisnewski 2005). It is unfair to say that this
position cares not for the potential loss of human life in a TBS, as being faced the choice
between torturing and not torturing is fundamentally a tragic failure of conventional, and less
morally troubling, intelligence strategies aimed at preventing a time-sensitive attack. The
danger of a moral position that deals in exceptions is that it often causes us to fail to situate the
action of torture in the real world, meaning we lose sight of its inherent evils, doubts, and
ramifications. There are issues with a notion of ‘hand-dirtying’ on what may be a hunch, with
torture being very morally dirty, if the perceived right thing has ostensibly negative
consequences; the notion that the threat terrorism has been heightened by the use of torture and
that this escalation has had a destabilising effect on predominantly Muslim states (Wisnewski
2005 p.107). The absolute prohibition on torture is, in earnest, a moral commitment which is

4. specifically defensible due to its appreciation of the explicit evils in the procedure of torturing
and implicit troubles as a result of a decision to torture. It is by forbidding torture whatsoever
the circumstances that we safeguard ourselves against potential future institutional abuse by
governments, with the example of torture warrants being issued for exceptional straying from
the legal status quo (Gross 2005 p.236). If we rule out a position saying it is morally worthwhile
to torture, or that it was necessary, as was rejected by the Israeli Supreme Court, perhaps we
create a conscientious offender. This is somebody acting in good faith to save lives, but who
still faces trial for an illegal act; though it is ‘a small price to pay for a ban on torture’ (Ignatieff
2005 p.25). To focus exclusively on the decision to torture is to stray from the heart of the
matter, as is to fall upon instinctive moral responses. When we engage fully with the specifics
of torture, both the act and the decision, the legitimacy of the absolute prohibition becomes
evident as it is a defence of a commitment to preventing unjust practices in tragic circumstances
that result in unjust outcomes.
When we talk about the absolute prohibition on torture, we refer to the negative human right
to not be tortured that is found in principle human rights texts; the exclusive subject of the
United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment
or Punishment. The Convention (1984) says in no uncertain terms, in Article 2,2; ‘No
exceptional circumstances whatsoever, whether a state of war or a threat of war, internal
political instability or any other public emergency, may be invoked as a justification of torture’.
Given the moral argument of exceptional mitigating circumstances for torture that we have
explored, this alludes to a more general debate on the relationship between law (the human
right not to be tortured) and justice (the conflicting moral claims that there are mitigating
circumstances to justify torture against the legitimacy of the absolute prohibition). In this
instance, with the former moral claim being directly contradictory to international law, we can
ask the question: are human rights and justice distinct from one another?
Human rights often represent a starting point for thoughts about international justice,
and certain moral standpoints can view them as having instrumental and/or intrinsic value to
questions of justice. Pogge (2002) shows an example of where human rights have instrumental
moral value and share common ground in talking about ‘moral universalism’: the ending of
violations of human rights principles related to poverty are shown to be directly related to a
claim about global justice. But how ought we react when there is a moral claim that is not just
unarticulated in human rights law, but is in direct contradiction to it? To answer this, we can
turn to a Pluralist interpretation of international society: one that commits itself to the authority
of law in domestic and international spheres. We can agree with the notion of shared ideological
beliefs, be they religious in origin or exemplary of other value systems, having the capacity to
bind members of a community together. However, to achieve this social cohesion in a context
where such ideological standards vary greatly, such as in a Pluralist international society, we
ought to defer to the authority of (international) law (Nardin 1992). This ultimately leads to the
conclusion that there is an intrinsic moral value to international human rights law, an edifice
driven by state consent, as ‘an interpretation of common morality in the circumstances of
international affairs’ (Nardin 1992 p.12). Legitimacy is therefore an expression of the shared
ground between law and moral judgements, thus indicating that ‘extra systemic moral
principles’ represent the decay of the rule of law (Nardin 2000 pp.106-107). This serves to

5. defend the moral worth of the absolute legal prohibition as an illustration of prevailing common
international values as opposed to an abstract moral judgement.
This consensus-driven character of international law forms a key component of the
general defence of the absolute prohibition. It does not have a retributive character as this is
contrary to the design of human rights law. Article 17 of the Convention (1984) stipulates the
creation of a monitoring Committee Against Torture, whose function is to report on, and work
with states regarding, the administration of the Convention. There is no retributive or
enforcement dimension to this human rights text, as it would starkly detract from the aims of
the human rights project. This mission is the creation of a human rights respecting culture that
trickles down from international law, to regional mechanisms and institutions, then to the state
level where they are administrated to finally manifest as a right to a human being. In addition,
there would be no state consensus: states would arguably not come together to articulate human
rights law if it were to become an instrument with which they could be undermined in future.
This illustrates the moral character of international law as a means to achieving the clear moral
goal in this instance: the minimising of torture practice in frequency and prevalence. This goal
is undermined by particular moral judgements that go against the legal and moral stance on the
absolute prohibition on torture that is so unambiguously enshrined and celebrated in
international law (Hathaway 2005 p.199).
In conclusion, it has been shown that when we engage thoroughly with torture, thus moving
beyond instinctive moral judgements, we are best equipped to defend morality of the legal
absolute prohibition. If the ramifications of the act of torturing a person – for the tortured, the
torturer, and humanity – are not fully appreciated, we risk forgetting that torture is so uniquely
wrong and morally unjustifiable, no matter the circumstances. In the wider context of legality
and legitimacy, it is also important to note the danger of being selective with our morality and
failing to embrace the distinct moral character of consent-driven international law. Moral
absolutism should not be confused with moral laziness. The moral defence for the absolute
prohibition on torture reflects scrupulous moral thinking about a fundamentally evil act;
international law both enshrines and propagates this moral position across humanity. To hope
that the absolute prohibition might eventually eradicate torture would be misguided, just as
domestic law fails to eradicate crime. However, to understand the legitimacy of the prohibition
of torture whatsoever the circumstances is to take a crucial step towards curtailing a widespread
phenomenon. This may equally be true of the greater human rights project; abuses of human
rights, including torture, have not been wiped out by the creation of a legal edifice of rights;
nor would they be if there were enforcement mechanisms built into the human rights legal
framework. What this framework has done is provide us with effective legal and moral
vocabulary with which we might better describe and understand evil occurrences across the
world.

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