As indicated by Ryan Goodman in a recent Just Security post, the report, “People on War: Perspectives from 16 Countries,” by the International Committee of the Red Cross, provides an important and very sobering assessment of global opinion concerning the law and conflict. As ICRC President Peter Maurer notes, the “findings are both reassuring and troubling.” Nowhere are the troubling aspects of this report more evident than in its discussion of torture. As the report notes only two-thirds of all those asked say torture is wrong, and 27 percent see it as a “part of war.” It is particularly problematic that the percentage of respondents who think a captured enemy combatant cannot be tortured to obtain important military information has dropped from 66 percent in 1999 to 48 percent in 2016. Of those surveyed, 36 percent believe “that an enemy combatant can be tortured for information”. Further, even after being informed that torture is prohibited by law, nearly 60 percent of those surveyed who had previously indicated it was allowed to torture enemy combatants continued to believe it is sometimes, or always acceptable. As a military lawyer I was involved in the aftermath of Canadian soldiers having tortured and killed a young Somali, Shidane Arone, during a 1993 United Nations mandated peace enforcement operation. The “Somalia Affair” highlighted the degree to which the torture and abuse of detainees held in the custody of a military force can call into question its ethos, discipline, and leadership. While the ICRC survey demonstrates there can be a degree of acceptance in the minds of the general public regarding torture there is no room for such views in the military or civilian security forces of a State.
If there can be a positive spin placed on these results it is that the rise in support for torturing enemy combatants to obtain information has only increased from 28 percent to 36 percent over the past 17 years, which of course includes the post 9/11 period. Further, 16 percent of respondents either did not know if it was OK to torture, or preferred not to answer. It would be hard to see this last result as ambivalence toward the subject of torture. Rather it suggests confusion, or at least uncertainty regarding its use. That uncertainty rose a full 10 percentage points from 1999.
Further, concerns regarding the issue of torture being used to obtain information arise when the results of the survey are broken down by country. The highest support for torture in this context is reported to be in Nigeria (70 percent), Israel (50 percent), the United States (46 percent), Iraq (41 percent) and Afghanistan (39 percent). The highest percentage of those reporting that they don’t know, or prefer not to answer, are in the Ukraine (27 percent), South Sudan (26 percent), Israel (25 percent), the United Kingdom (24 percent) and the United States (24 percent).
In some respects, these States make strange bedfellows. They do share a common experience of participation in complex asymmetric conflicts, and having to confront transnational terrorism. However, they also represent vastly different situations in terms of some being traditional, well established liberal democracies (e.g. the United States and the United Kingdom), as opposed to other countries that have experienced exceptionally destructive conflict on their own territory, and that are still struggling to exhibit good governance (e.g. South Sudan, Iraq and Afghanistan). The ICRC’s Director General has raised the spectre of the infamous “ticking time bomb” situation as a possible explanation for why a significant number of respondents in the United States and the United Kingdom support torturing enemy combatants to obtain information. Another recent Just Security post involving social science research indicates that American support for torture turns on prejudice toward suspects. However, overall it is hard to fully explain the similarities across these diverse country conditions.
Given recent events such as the United Kingdom’s Brexit referendum, the peace referendum in Columbia, and the U.S. presidential election, one might be excused for reaching the conclusion that polls such as these are simply too inaccurate to be taken seriously. Yet what is striking in this instance is the exceptional gulf between the absolute legal ban on torture, and the attitudes of what Goodman describes as an “astounding number of people (17,000 respondents) in 16 countries.”
There can be no doubt torture is banned by law, whether one looks at the 1949 Geneva Conventions, their 1977 Additional Protocols, the 1984 United Nations Convention against Torture, international human rights law, or the domestic laws in different countries. Further, what is often lost in this discussion is that it is not only torture that is banned. The Third Geneva Convention requires with respect to interrogation:
No physical or mental torture, nor any other form of coercion, may be inflicted on prisoners of war to secure from them information of any kind whatsoever. Prisoners of war who refuse to answer may not be threatened, insulted, or exposed to unpleasant or disadvantageous treatment of any kind.
Torture and “inhumane treatment” is a grave breach of that Convention (art. 130). Under Additional Protocol I the protection extends to “outrages upon personal dignity, in particular humiliating and degrading treatment” (art. 75(2)(b). Similarly, Article 16 of the Torture Convention indicates “[e]ach State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman or degrading treatment or punishment that do not amount to torture….” There are numerous other legal references to the ban being against the abuse of detainees. As President Barack Obama noted in the recently released Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations, U.S. military practices are consistent with the 1977 Additional Protocol I & II prohibitions against violence to the life, health, and physical or mental wellbeing of persons. Indeed, a discussion regarding interrogation is wrongly situated if it begins with the subject of torture. Simple abuse, mental or physical, is prohibited. When those obligations are met, the need to discuss torture does not even arise.
Should we be surprised there is not a universal public condemnation of torture, or that such uncertainty should exist regarding its use to extract information? Perhaps not. In many countries, including those that are geographically far from areas of “active hostilities,” the media is replete with TV shows and movies indicating that torture works. Whether it is the United States series “24,” the Israeli show “Fauda,” or the movie “Zero Dark Thirty,” government agents are seen to commit torture in situations that suggest such illegal activity to obtain information either directly, or indirectly can lead to operational success and lives saved. This “entertainment” is offered in a context where there are already elevated levels of fear and anxiety being felt by the audience in their everyday lives. Even though countries like the United States, the United Kingdom and Canada are geographically far removed from the worst of the violence, their citizens have experienced the reality and the continuing threat of transnational terrorism. However, while the media provides edge-of-the-seat entertainment, it also reflects deep in the gut immorality and flagrantly illegal activity.
The level of uncertainty in the United States as reported in the ICRC survey has undoubtedly been made worse by senior lawyers in the Bush administration justifying “enhanced interrogation techniques” such as waterboarding, an activity subsequently acknowledged by the president and a Senate committee to have constituted torture. Questions remain about accountability with groups such as the American Civil Liberties Union demanding more be done to investigate and punish criminal wrongdoing. The U.S. government has acted over the past eight years to revoke the previous direction, ensuring compliance by all government authorities (e.g. employees, agents) with the U.S. Army manual on interrogation, and clearly prohibiting the torture and abuse of detainees regardless of how heinous their crimes. That said, U.S. citizens are now faced with President-elect Donald Trump, who, during his successful election campaign, embraced the concept of using waterboarding — “and more than that” — on people detained by U.S. government agents. This position appears to have been calculated to play on the very fears terrorism hopes to create. It also highlights that legal interpretation and policy decisions at times appear to be far too “political administration” dependent. No wonder there is uncertainty about the legality of torture.
To the extent that the United States wants to set an example for the rest of the world it may end up being entirely the wrong one. The disturbing pronouncements made during the presidential campaign indicate there may yet be an attempt to turn the page back to a darker, and more morally challenging period. Ultimately, the rest of the world will simply have to wait and see. Recent suggestions that Mr. Trump may be abandoning this campaign rhetoric are unlikely to carry much weight. To an already skeptical international audience, the actions of the new Trump administration will ultimately speak far louder than soundbites or tweets.
This is what makes the recent Obama administration report on its legal and policy approaches toward terrorism so important. It provides a clear record of the existing U.S. position on this issue. That record will serve as a benchmark against which the actions of a new administration can be assessed. Undoubtedly, that was part of the reason why the report was prepared.
Morality and Law
The subject of torture presents difficult moral and legal questions for ordinary citizens who feel threatened by terrorism, and want to see the threat removed. It is important to consider the difference between morality and the law when dealing with the torture issue. Oppenhiem’s International Law: A Treatise (7th ed. 1948) (p. 8) notes that morality and law both lay down rules, and to a considerable extent the same rules, for the guidance of human conduct. However, one characteristic of the rules of morality is that they apply to conscience and to conscience only, while the rules of law are enforced differently. In this regard the law is “a body of rules for human conduct within a community which by common consent of this community shall be enforced by external power” (p. 10).Thus, while people may have different views on whether torture should be used, the law provides a communal resolution on this issue, and rules to guide subsequent action. In this respect, the communal decision both internationally and domestically is to outright ban the use of torture, and the abuse of detainees.
None of this suggests that torture is not a difficult and controversial issue even in a legal context. This is evident in Jens David Ohlin and Larry May’s thoughtful new book, Necessity in International Law (Oxford, 2016) where they look at international criminal law, and discuss torture and the defence of necessity in both an American and Israeli context (pp. 147-54). What is clear is that the necessity defence cannot be used to create an ex ante policy authorizing torture. Although necessity may provide a justification, they emphasize that, “it always requires ex post consideration of the particular facts giving rise to the lesser-evils dilemma faced by the defendant” (p. 151). When necessity is claimed as a valid affirmative defense to an allegation of torture, it is restricted to truly extreme situations. In this regard, the broad nature of the prohibition against torture, reflected in Article 2 of the Convention on Torture, calls into question what circumstances might ever justify its use.
What the narrow, after-the-fact possibility of claiming a necessity defense does not change is that no State policy, or direction advocating torture can be justified. Ultimately, the prohibition on the torture or other abuse of detainees requires clear unequivocal direction banning the practice. Here the importance of a strong military and civilian leadership who reinforces the categorical invalidity of torture is crucial. This leadership is required to ensure security forces do not fall down an incredibly slippery slope toward immorality and strategic operational failure. The United States and Israel are not the only Western countries that have had to confront the issue of detainee abuse. This is evident from the 2003 death of Baha Mousa in Iraq at the hands of British soldiers who had violently abused the detainee, and the Canadian experience with its own “Somalia Affair” a decade before. The latter episode resulted in military and public inquiries, and the prosecution of military personnel. It ultimately contributed to the disbandment of the Canadian Airborne Regiment.
The Somalia experience prompted the development of Code of Conduct training based on Soldier’s Rules summarizing law of armed conflict obligations. These rules were adapted from ICRC work in this area. The rules were subsequently put directly into the “pockets” of the soldiers, sailors, airmen and airwomen deployed on every international mission. One of those rules specifically addressed the treatment of detainees and the issue of torture. The Third Geneva Convention standard was to be applied to detainees regardless of how the mission was characterized (e.g. international armed conflict, non-international armed conflict, or United Nations-mandated):
Treat All Detained Persons Humanely In Accordance With The Standard Set by the Third Geneva Convention. Any Form of Abuse, Including Torture, is Prohibited.
I was responsible for the development of these rules and the training. At that time, I received feedback from some Canadian military personnel who felt it was not necessary for torture to be specifically mentioned. They believed it was self-evident such activity was banned. However, the response to their concerns was straightforward. Given what had happened in Somalia, it was clear that some of their fellow soldiers simply needed to be told and re-told that torture is wrong.
The 2004 Abu Ghraib scandal provided further confirmation that diligence, clear messaging and a commitment to accountability is required. The U.S. military has long had a world leading law of armed conflict training program. However, even with the commitment that military has demonstrated toward conducting lawful operations, the moral challenges arising from the asymmetric conflicts of the post 9/11 world; poor civilian and military leadership; and individuals simply willing to break the law resulted in the systematic abuse of detainees.
Here lies the answer to the results of the ICRC survey regarding torture. Vigilance and constant reinforcement of the message that torture is wrong and illegal is needed. Given the fear caused by terrorism, the conflicting messages by some government leaders, reliance on “time bomb” scenarios and false claims of effectiveness, as well as the media treatment of torture as a form of entertainment, it should be expected that there’s a certain level of uncertainty, or misunderstanding about torture. It is for that reason leaders must double down and make clear that the torture and abuse of detainees for any reason will not be tolerated. In this regard one need look no further than Article 16 of the 1863 Lieber Code to reinforce the fundamental, indeed foundational, nature of this obligation for military personnel:
Military necessity does not admit of cruelty — that is, the infliction of suffering for the sake of suffering or for revenge, nor of maiming or wounding except in fight, nor of torture to extort confessions.
Importantly, the ICRC survey indicates 81 percent of respondents believe that military leaders exert a very strong or strong influence on the behavior of combatants in times of war. Frequently it is the military that has been the most vocal about the immorality and ineffectiveness of torture. Chairman of the Joint Chiefs of Staff, Gen.Joe Dunford, has stated that waterboarding is inconsistent with national values. Trump’s nominee for defense secretary, retired Gen. James Mattis, is reported to have surprised Trump when he told him that he didn’t think torture was “useful.” Trump said he found that answer to be “very impressive,” but said it hadn’t changed his mind yet. Certainly, the leadership of the U.S. military is all too aware of the negative strategic and tactical impact that the 2004 Abu Ghraib abuse of detainees had on its operations in Iraq. Added to this chorus are the views of Sen. John McCain, who himself experienced the horrors of torture as a downed flyer in Vietnam. Military leaders also know that instituting a policy of torture and abuse will adversely impact the ability of the U.S. military to operate with allied military forces. This is a fight that requires a coalition effort.
Of course, the issue of torture is not simply a military challenge. The use of CIA “black sites” and the enhanced interrogation techniques made that abundantly clear. What needs to be remembered is that torture is normally discussed in the context of a State that is being poorly governed. As Iaon Grillo notes in his recent book Gangster Warlords: Drug Dollars, Killing Fields, and the New Politics of Latin America (Bloomsbury Press, 2016) (p. 339), the use of torture and “disappearing people” is emblematic of dictatorships operating in Central and South America in the twentieth century.
Importantly, it is the civilian leadership of a country that is responsible for developing “high strategy” with a goal of bringing about victory during armed conflict. In this regard, the United States and its coalition partners are engaged in a “long war” involving a unique transnational insurgency. The threat is not one simply of terrorism. The Salafi jihadists are a resilient, well organized, genocidal, and ideologically motivated enemy. They must be defeated. This will not be an easy task, and it is one that should not be made harder by having to constantly relearn the lessons of history. Torture undermines the political and military effort to defeat an insurgency. Our technically savvy enemy is all too ready to take advantage of our mistakes. They will use the allegations of torture, and leverage the impact of such immoral and illegal activity with a goal of influencing both foreign and domestic audiences. As counterinsurgency is fundamentally a battle for the “people,” the adverse impact on foreign audiences, including those in the territory where the insurgency is occurring, is bad enough. However, as the ICRC survey clearly demonstrates torture can be a divisive issue within the populations of liberal democracies. As Gil Merom notes in his book, How Democracies Lose Small Wars (Cambridge, 2003)(p. 230) “excessive brutality lends credit to and strengthens the moral criticism of the war.” That criticism will not be only external to the State. The result can be a shift in the center of gravity from the foreign battlefield to the home front. The abuse of fundamental principles by the State underlying democratic life “inadvertently supplies the anti-war opposition with a winning card”.
The war against Salafi jihadism is as much a war of ideas and ideals, as it is about drone strikes and intelligence-led raids. The issue of torture, and the degree to which our societies accept their governments are acting morally and legally, represents a clear “center of gravity” in this fight. The ICRC survey should act as a warning that democratic countries are in danger of degrading their ability to strategically defeat this enemy. Rather than adding to the existing uncertainty people have about torture, the political and military leadership in this generational fight should be seeking to fill the glass by reinforcing there is a ban on torture, rather than drain that vessel and be left with the dregs. There should be no doubt where we stand morally, legally, militarily, or politically. There must entail clear, unwavering direction from the highest levels of the political and military leadership that neither the torture nor abuse of detainees is acceptable, and it will not be tolerated.
Image: Torture in a Sicilian prison in Monreale. Wood engraving. Iconographic Collections – CC BY 4.0 Wikicommons