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David Matas

 
David Matas: Terror and Torture

(Talk delivered to the Rohr Jewish Learning Institute, Winnipeg, 15 February 2018)

By David Matas, February 15, 2018

                                                                                               

Does the war on terror justify use of torture?  My answer is no, not in any circumstances.  I will say a bit about the law on this subject, but then I want to explain why practically, in combatting terror, the use of torture makes no sense.

 

I personally have been legally involved in this issue in the case of Suresh[1], intervening in the Supreme Court of Canada for the Canadian Bar Association.  The Government wanted to deport Suresh to Sri Lanka where he faced a risk of torture.  The reason for the deportation was that he had been a fundraiser in Canada for the LTTE, identified as a terrorist organization.  Both the Federal Court and the Federal Court of Appeal held that removal to Sri Lanka was permissible.

 

The UN Refugee Convention allows deportation of refugees who are security risks.[2]  The UN Convention against Torture prohibits removal to danger of torture.[3]  The Federal Court of Appeal held that the Refugee Convention provision prevailed. The Supreme Court of Canada disagreed.  The prohibition against removal to danger of torture in the Convention against Torture was absolute and had a higher status in international law than the permission to remove security risks to torture in the Refugee Convention.

 

The Suresh case revolved more directly around what the Canadian Charter of Rights and Freedoms required.  Suresh argued that the right to security of person in the Charter[4] prohibited removal to danger of torture. The Court held, not always, that the Charter allowed removal to danger of torture in exceptional circumstances. The Court did not say what those exceptional circumstances were, but said that the case of Suresh did not present those circumstances.

 

In the case of Nlandu-Nsoki[5] in 2005, Mr. Justice Shore in the Federal Court found that exceptional circumstances existed, justifying removal to risk of torture  in Angola.  The circumstances included a finding that Pedro Nlandu-Nsoki had been found to be complicit in acts of terror and crimes against humanity.  This case was neither appealed nor followed.

 

In Israel, the High Court in 1999 issued a judgement on the interrogation methods applied by the Israeli general security service[6]. The judgment addressed the question: what forms of interrogation are permissible under the Israeli law of interrogation?  The Court held unanimously that torture is not a permissible form of interrogation under the law of interrogation.  The Court added that an interrogator criminally accused of torture may be able to plead a defence of necessity where the torture was inflicted to save a life.  However, the Court differentiated between the availability of that defense and a general authorization to inflict torture.

 

The war on terror should be, like wars between international armed forces, subject to principle. The Geneva Conventions on the Laws of War prohibit torture of soldiers on the opposing side absolutely, without exception. [7]

 

That is all I want to say about the law. There a number of reasons why I would say that torture is never justifiable to combat terrorism.  The typical argument in favour was put forward by the Israel High Court in its judgment. The judgement hypothesized this situation:

          "a bomb is known to have been placed in a public area and will undoubtedly explode causing immeasurable human tragedy if its location is not revealed at once."

 

There are also examples where torture was used and produced information that helped save someone. The materials circulated today give the US example of a kidnapper Jean Leon forced to reveal the whereabouts of Louis Gachelin in order to save his life.

 

There are a number of difficulties with this ticking time bomb hypothesis. First, it hypothesizes foresight.  Hindsight is twenty twenty. Infallibility is not a human capacity.  Foresight is always probabilistic.  The ticking time bomb hypothesis is that the bomb will undoubtedly explode. But nothing in the future is undoubted. 

 

Second, the reality of torture is that the victim typically says what the torturer wants to hear. What the victim thinks the torturer wants to hear may be real but may not be.  Evidence elicited through torture is inadmissible in court, in part, because of its unreliability.

 

The hypothetical ticking bomb situation, aside from hypothesizing that the bomb will explode, also hypothesizes that the information elicited through torture will be accurate. However, that is not the typical experience. In general, evidence elicited through torture is unreliable.

 

A third hypothesis built into the ticking bomb scenario is that there is no alternative source of information, at least not one that can be accessed as quickly.  However, that hypothesis disintegrates if the first instinct of the torture victim is to lie. If that is the case, an alternative form of investigation may well be quicker.

 

A fourth problem with the ticking bomb hypothesis is the example it gives.  Investigations as a form of police work are relatively recent and relatively contained.  Most police work historically and most police work in many countries even today is not investigation. It is rather rounding up a suspect based on accusations or stereotypes or politics and torturing the suspect into a confession. 

 

Every one of these tortures has some form of ticking bomb hypothesis to justify it. A ticking bomb hypothesis becomes a licence to torture globally. One can say, in any particular case, that the hypothesis has been abused. But it is a lot simpler, more effective and more convincing to say, do not torture.

 

A fourth problem with torture is the effect on the torturer. Torture dehumanizes and brutalizes the torturer. When we use torture to combat terror, we lose allies in the fight against terrorism, by losing the humanity of the persons who inflict torture.  Is there a net gain if, through torture, we save the life of one person from terrorism and lose the soul of another?  Through torture, we create zombies in our midst, the living dead.

 

A fifth problem with the ticking bomb hypothesis is the decontextualization.  Terror is not an isolated event.  It is part of a campaign.  To combat terror we have to ask not how we combat one particular impending terrorist act, but how we combat a particular terrorist campaign.

 

To step terrorism, we have to stop the terrorists.  Stopping one act does nothing to stop terrorists. If one does not succeed, they just move on to another.

 

In Canada, terrorist attacks are rare. In Israel they are common. Stop one attack and the terrorists try another. Stopping one attack does little or nothing to combat the overall threat of terrorism.

 

To get at systemic threats of terrorist attacks, there must be systemic responses. Justifying torture to combat the terrorist threat means justifying torture systematically.  The ticking time bomb hypothesis proposes to suggest an exception, not a rule. However, as we can see, terrorism is not just one bomb.  It is many.

 

The problem with torture is not only blanks and false positives, torturing people who know nothing or who provide false information.  The problem also is that torture inflames rather than damps down terrorism.

 

Combatting terrorism is a form of counter-insurgency.  The most effective counter insurgency strategy is not one that bombs the village from which the insurgents are getting food or shelter. It is rather winning over the villagers through social support, cooperation with elders, by winning hearts and minds.   Torture does not win hearts and minds. It has the opposite effective, driving the undecided into the camp of the terrorists.

 

We have to combat terrorism through combating advocacy and promotion of terrorism, through standing against counselling of terrorism, through opposing glorification of terrorism, through prohibiting incitement to terrorism.  We can not credibly do all that and advocate torture, promote torture, or counsel torture.

 

The pool of terrorists is not fixed.  On the contrary, terrorists recruit as they terrorize. Torture makes martyrs of terrorists and becomes an aid in recruitment.

 

The combat against terrorism is not our group against theirs. It is our values against theirs. In this combat, torture is a self-inflicted wound, contradicting the values for which we are supposedly fighting by the means with which we fight.

 

There is no situation where terrorism is right. There are no exceptional circumstances which justify terrorism. The same must also be true about the use of torture in combating terrorism.

 

One argument against capital punishment, which I also oppose is, don't kill people who kill people to show that killing people is wrong.  I would also say don't torture people who terrorize people to show that terrorizing people is wrong. Torture does not help the anti-terrorism campaign. It undermines it.

......................................................................................................................................

David Matas is senior honorary counsel to B’nai Brith Canada.

 

    [1] Suresh v. Canada (Minister of Citizenship and Immigration), [2000] 2 FC 592

    [2] Article 33(2)

    [3] Article 3(1)

    [4] Article 7

    [5] Nlandu-Nsoki v. Canada (Minister of Citizenship and Immigration), 2005 FC 17

    [6] 6th of September, 1999,

 http://www.derechos.org/human-rights/mena/doc/torture.html

    [7] Geneva Convention relative to the Protection of Civilian Persons in Time of War Article 3(1)(a)

 
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