The prohibition against torture and its pragmatic effects
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Author: PILPG
This blog post looks at the horrific crime of torture that is being committed by Russia in its war in Ukraine and explains the pragmatic reasoning for its prohibition and its legal application to Russia’s use of torture. The prohibition against torture exists as a fundamental principle of international relations, a sound political decision, an effective interrogation strategy, and a well-grounded moral obligation. For these reasons, while it is evident that Russia has failed to uphold its duties and obligations in maintaining the prohibition against torture, Ukraine is urged to continue to uphold its commitments under this legal principle.
Introduction
Torture is widely understood to be an abhorrent practice under a range of lenses: legal, political, practical, and moral. Despite this, torture has continued to be used by states such as Russia, who claim that the torture is necessary to obtain information or use war crimes like torture and execution to punish individuals that the state brands as “terrorists.” Russia’s use of torture not only has no legal justification but it is also gravely immoral and ineffective.
There is little doubt that Russia has violated the prohibition against torture in its war in Ukraine. A March 2023 United Nations Report by the Independent International Commission of Inquiry on Ukraine detailed a “widespread pattern” of torture and inhuman treatment committed by Russian authorities against individuals detained by Russian authorities within Ukraine as well as within Russia. This blogpost explores the reasons for the prohibition against torture, focusing on its prohibition under international law, the political harm it creates for international relations, its lack of practical value in providing reliable intelligence, and the moral ramifications of the use of torture.
The illegality of torture under international law
The prohibition on torture exists in international law as a “jus cogens”norm. As a jus cogens norm, the prohibition on torture is considered to be a fundamental principle of international law from which no derogation is permitted. The fundamental nature of the prohibition against torture is demonstrated through its links with the early history of the United Nations. In 1948, the United Nations General Assembly adopted the Universal Declaration of Human Rights, which expressly states that “[n]o one shall be subject to torture or to cruel, inhuman or degrading treatment or punishment.”
International law is replete with definitions of torture, both in international conventions and international law jurisprudence. While the exact contours of what constitutes torture invariably vary amongst sources and remain a subject for academic debate,[1] for general purposes, the International Justice Resource Center has helpfully noted that the right to freedom from torture includes the following three aspects:
(i) the right of individuals to be protected by the state from torture by its agent;
(ii) the state’s duty to prosecute torturers; and
(iii) the right of individuals not to be returned or extradited to another state where they may face the danger of torture.
Through the course of its war in Ukraine, Russia appears to have derogated from all three aspects: (i) Russia is using its own agents to conduct torture against individuals; (ii) Russia is failing its duty to prosecute torturers, and instead, appears to be condoning and encouraging torture by its agents; and (iii) Russia is relocating individuals across state borders, from Ukraine and into Russia, where they may face the danger of torture.
The ineffectiveness of torture as a political tool
The use of torture is not only illegal, but also damages the reputation and credibility of a state on the international stage. The use of torture sends a message to other states that the torturing state is willing to derogate from basic norms and resort to extreme measures to achieve its goals, regardless of the cost to human dignity and rights. The resulting damage to the torturing state’s reputation is long-lasting and can have an impact on both international and domestic relations.
The United States’ use of torture techniques, such as waterboarding and confinement boxes, after September 11, 2001, resulted in a spate of continuing criticism both on the international and domestic stage. As Russia continues to engage in war crimes, such as torture, in Ukraine, it suffers massive reputational loss on the global stage. In April 2022, the UN General Assembly adopted a resolution calling for Russia to be suspended from the Human Rights Council. In April 2023, news that Russia would chair the UN Security Council (a position that rotates through the members of the Security Council on a monthly basis) was met with widespread criticism and comments on the “absurdity” that Russia could appropriately maintain international peace and security in light of its ongoing war crimes in Ukraine.
The practical ineffectiveness of torture as an interrogation tool
In addition to being illegal and politically ineffective, torture also has little to no demonstrated effectiveness as an interrogation tool. Rather, torture is generally understood to produce unreliable information and encourage false confessions from its victims. In practice, the stress that torture places on its victims is shown to cause gaps in their memories. As a result, even if a tortured individual genuinely desires to recall accurate information, the extreme stress of torture is likely to limit their ability to do so.
The information provided by a tortured individual is also likely to be heavily influenced by the information that the tortured person believes might stop the suffering imposed. In other words, even if an individual has no accurate information to share, the stress of torture may lead them to make false statements simply to stop the pain. Best practice interrogation techniques have no reason to include torture as a tool. Rather, interrogation is more likely to result in meaningful information if positive rapport and relationships are built between the interrogator and individual.
The moral damage caused by torture
The moral damage caused by torture is evident through its lack of justification. Due to its practical ineffectiveness as an interrogation technique, torture serves only as an act of violence that is done to cause suffering to another human being.
On a higher-level, a state that commits torture bears the moral wrong of having committed violence without justification. On the ground level, the individual that commits the torture or is witness to the torture bears the moral damage of torturing another individual. For military personnel that are asked to conduct such acts, the moral wrongs of the torture have an impact on their psychology and morale. One former Russian senior lieutenant who had witnessed several acts of torture conducted by Russian military against Ukrainian prisoners of war highlighted the clear moral wrong of bearing witness to Russian military actions in Ukraine in a statement that: “I don’t even have the moral right to ask for forgiveness from the Ukrainians. I can’t forgive myself, so I can’t expect them to forgive me.”
In contrast, despite the brutality of Russia’s aggressive war, Ukraine has repeatedly committed itself to upholding the rule of law and maintained the moral high ground. Ukraine is commended for committing to investigate allegations of its military personnel conducting torture against Russian military and urged to continue to maintain this position.
Conclusion
In sum, torture has no place nor justification for its use. It is forbidden under international law, politically damaging, practically ineffective, and immoral. Ukrainian authorities should continue to uphold their commitment to the rule of law and morality by preventing and prosecuting instances of torture. Russia’s use of torture is yet another way in which it hurts itself on the international stage and the international community should continue to condemn and criticize Russia for this.
[1] Several academic scholars have explored the definition of torture in depth. See, e.g., an article by Professor Nigel S. Rodley, here. See also, an article by Professor Oona Hathaway, here.