A Study on the Prohibition of Torture as an Interrogation Method
Date Issued
2011
Date
2011
Author(s)
Lu, Hung-Chih
Abstract
My thesis is about the prohibition of torture as an interrogation method. It can be divided into four parts. First of all, Article 3 of the European Convention on Human Rights is an important standard. It states that no one shall be subjected to torture, inhuman or degrading treatment or punishment. The European Court of Human Rights in Aksoy v. Turkey and Selmouni v. France cases imposed the requirement to thoroughly investigate the possibility of torture. Due to the fundamental importance of the prohibition on torture, the Court imposed an obligation under Article 13 of the European Convention to conduct thorough and effective investigations of incidents of torture. Article 3 enshrines one of the most fundamental values of democratic society. Even when States face the difficulties of protecting their communities from terrorist violence, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct.
However, in the war against terror this kind of absolute prohibition is subjected to derogation, especially after the 911 incident. Between 2001 and 2009, the U. S. Government committed the same abhorrent practices of torture which it has consistently opposed when committed by other states. What is astonishing is that such practices were initiated at the highest level of government. The practices of torture became official policy and were carried out by the U. S. military, CIA, and private contractors in territory under U. S. control, in secret prisons abroad called “black sites”, with the connivance of other governments under the euphemism of “extraordinary rendition”.
Besides, the prohibition of torture also faces the challenge of “salvation-oriented torture” or “Rettungsfolter”. Even though it is our right as human beings not to be subjected to torture or to other cruel, inhuman, or degrading treatment or punishment, should this human right be set aside in an extreme emergency to allow such acts as means of extracting information from terrorists or kidnappers? It is a traditional debate by “Ticking-Bomb scenario”. I will dicuss this question both on law and moral aspects, and I will explain why even in this emergency we still have to maintain the fundamental value of the prohibition of torture.
Finally, the thesis turns back to the Taiwan situation. Recently in Taiwan there are lots of well-known torture cases. This means that our country still have not made a thorough self-examination. Since Taiwan has ratified The International Covenant on Civil and Political Rights in 2009, we can directly apply the article 7 of The International Covenant on Civil and Political Rights, which prohibits torture and inhuman and degrading treatment, and punishment. It is one of the few absolute rights in ICCPR, and no restrictions are permitted. As to native laws, although we can not find any specific independent right against torture on Constitutional law, we have to ensure this kind of right through the explanation of Constitution.
Subjects
Torture
Art.3 of ECHR
inhuman and degrading treatment or punishment
Art.7 of ICCPR
UNCAT
salvation-oriented torture
Rettungsfolter
utilism
torture terrorists
ticking-bomb scenario
extraordinary rendition
black sites
waterboarding
coercive interrogation
SDGs
Type
thesis
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