The public outcry over Professor Mirko Bagaric’s condoning of torture has been visceral and instinctive. Bagaric, who compares it unfavourably to the rational debate being undertaken in the United States, derides this “alarmist and reflexive response”. Yet it is the very intuitive nature of our response that we should celebrate. That so many find the arguments to be abhorrent to a fundamental moral code reflects well on the state of our society and, indirectly, on the strength of the prohibition against torture as a binding and universal norm.
For commentators who propose lifting the absolute prohibition, torture can be justified in order to save innocent lives. This argument poses hypothetical scenarios in which the State, perhaps after receiving the stamp of authority of a judge, can be certain that torturing a particular person will prevent a terrorist attack. It is basic utilitarianism: Actions can be justified and individual rights can be limited, in the name of a greater public good.
According to these theories, terrorism is a unique historical circumstance - a new context within which their reasoning operates with even greater force. The rules of international law can and must be re-written in its shadow - from the laws of war to international human rights protections. Similarly, Australian politicians and their administrators have used the rhetoric of terror to justify derogating from previously accepted norms. As Robert Cornall of the Attorney General’s Department asserted recently, in a more dangerous world, individual rights need to give way to community rights.
This utilitarian argument - the balancing of the public good against the individual’s right to security of person - is the stuff of “Ethics 101”. Most people who have taken such a course will be familiar with the ways in which the calculation breaks down. To put it crudely, the teacher might ask students how many children they would be willing to rape in order to save a certain number of lives. Invariably the response is, “none”.
Unlike the ticking-bomb analogy used by proponents of State-sanctioned torture, the rape of children in such circumstances is far from theoretical. Anyone who has worked with refugees will have come across men, women and children who have been raped, mutilated and otherwise abused in the name of preventing terrorism. Once we step down the path of rationalisation of torture for the greater good, such acts are not just logically justifiable, they are inevitable - either because of the inability of the State to control persons responsible for torture, or because the State itself gives its implicit imprimatur. Those commentators who believe they can introduce ways to stop this slippery slope from operating need to read more human rights reports, and meet more victims of torture.
It is incredible that so many American, and now also Australian, academics and policy-makers, should rationalise torture (and other relaxations of human rights protections) as a novel and borne out necessity in the “Age of Terror”. Nothing could be further from the truth. The arguments are inherently medieval in origin. Terror merely gives them a new guise.
To argue, as Robert Cornall has, that our rights were created in the absence of threats to our community, is to misunderstand history. Human rights law is a produce of bitter and tragic experiences, not least of which were the atrocities committed during the last century’s world wars. And as many commentators and judges have pointed out, the most fundamental of these laws were created exactly for times such as these. In this sense, Robert Cornall misunderstands Australian history. It is not that Australians have too many individual rights because we have never had to face threats to our society. Rather, because the Constitution’s framers could not envisage a time when individual rights might come under the sort of threat that such crises engender, we have no entrenched rights.
By contrast, the American framers were all too aware of how individual rights become dispensable when the going gets tough. It is for this reason, as well as a general distrust in government that is somewhat alien to our shores, that they instituted a Bill of Rights into their Constitution - to protect them against their own new and promising government in the future.
Nor were the Americans alone in their experience of oppression. The absolute prohibition against torture arose, in many respects, as a result of a lengthy, brutal and failed, worldwide experiment in which State-sanctioned and controlled torture was considered necessary to pre-empt perceived threats to society. That threats were often more imagined than real, and many innocent lives were lost or ruined in the process, did not undermine the basic rationalisation process driving adherents of torture. Our modern commentators are no different, arguing that while some innocent people may indeed be tortured, the calculation of public benefit still holds -when we get the right people.
That the historical experiment failed is reflected in the fact that the prohibition against torture is so universally accepted as a norm of international law, binding on all States, regardless of whether they are signatories to relevant international treaties. This prohibition is based on at least three lessons of history.
First, at the purely practical level, torture almost always failed in its objective of obtaining reliable evidence. This is even more relevant today. Terrorist organisations know all about torture, and prepare for it by ensuring that no single operative knows all the facts about an operation or organisation. Furthermore, a torture victim will say almost anything - usually whatever their torturers want them to say. Given the abysmal record of our intelligence agencies in being able to determine the worth and credibility of the information at their disposal, torture-derived evidence hardly promises to be the panacea to information failures of the recent past.
Second, the modern polity is founded on the principle of limiting the power of the State. Again, this core principle of liberal thought arose not just in the social philosopher’s chair but in the living history of abuses of power. To grant to the State the ultimate power to destroy the body of a citizen through torture invites the greatest abuse of all. The American revolutionaries knew this, and therefore entrenched the prohibition into their fledgling Constitution with the Bill of Rights. In Australia, we rely primarily upon a fragile common law, and the workings of responsible government, to protect us against the abuse of basic rights. And while the High Court at one time indicated that the separation of powers doctrine might act as a human rights guarantor, the current bench is much more deferential to the principle of parliamentary sovereignty, as the recent cases approving indefinite detention of aliens indicated.