International Journal of Legal Research 1 Volume 1 | Issue 1 | ISSN- 2349-8463 If I must choose between peace and righteousness, I choose righteousness. - Theodore Roosevelt* HUMAN RIGHTS V/S TORTURE: A CRITICAL STUDY OF CHANGING APPROACHES Mr. Nikhil Kashyap, Assistant Professor of law, Amity University, Noida Introduction Torture exists in every society and it is as old as the concept of civilization. Human Beings are made of two emotions one is good and other is evil. This is the reason that society has both the facets. Torture is always considered as evil by large part of society. History of Human Rights says that they were recognized after the Second World Wary the international community and right against torture was one of them. In this research paper, focus will be on the definition of Torture and three different views on justification of Torture. Before proceeding towards the changing approaches of torture we really need to understand what torture really means? The understanding of this concept will really help us to understand the different approaches taken by different jurists. „Torture‟ Defined ‗Torture‘ is originated from the Latin word tortura which means ‗to twist‘. In the third century, Jurist Ulpian defined torture as: ―By quaestio (torture) we are to understand the torment and suffering of the body in order to elicit the truth. Neither interrogation by itself, nor lightly inspired fear correctly International Journal of Legal Research 2 Volume 1 | Issue 1 | ISSN- 2349-8463 pertains to this edict. Since, quaestio is to understand as force and torment, these are thins that determine its meaning.‖1 Similar efforts were done to define torture in different centuries. In 20th century after Second World War, there was a sudden shift for the human rights in the whole world. There were various conventions were passed to codify human rights. In those conventions one of the rights was right against torture.2 In year 1987, U.N. passed anew convention specifically dealing with right against torture. The convention is known as U.N. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment3 or Punishment. In this convention4, ‗Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions‘. * was the 26th President of the United States of America (1901–1909). 1 As quoted in Edward Peters, Torture 1, university of Pennsylvania press, 1999. 2 Universal Declaration of Human Rights, 1948 gave a right under Article 5, which reads ―No one shall be subject torture or to cruel, inhuman or degrading treatment or punishment.‖ In International Covenant on Civil and Political Rights 1966, Article 7 defines right against torture which reads as: ―No one shall be subject torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without free consent to medical or scientific experimentation.‖ 3 Adopted and opened for signature, ratification and accession by General Assembly resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1) 4 Article 1 clause (1) of the convention International Journal of Legal Research 3 Volume 1 | Issue 1 | ISSN- 2349-8463 On analyzing the definition stated above, these are the three reasons for doing torture: To obtain confession or information. To punish a person who is a suspect of committing an offence. To coerce or intimidate with a person so that he can act in that way. Michael Davis adds two more reasons to the definition for torture provided in the convention. They are ―to destroy opponents without killing them (what we may call ―disabling torture‖) and to please the torturer or others (―recreational torture‖). Recreational torture is not, of course, something government is likely to engage in, but individuals are, especially if government declares certain individuals or groups beyond its protection. On conclusion it can be said that basic purpose of torture is to break the ‗will‘ of the tortured person. Accordingly, we arrive at the following definition. Torture is (a) The intentional infliction of extreme physical pain suffering on some non- consenting, defenseless person; (b) the intentional, substantial curtailment of the exercise of the persons autonomy (archived by means of (a)); (c) in general, undertaken of breaking the victim‘s will.5 Reasons for the shift in the notion of „Torture‟ Torture was considered as morally wrong, an act that could never be justified under any circumstances, but there has been a shift in the past two decades in justifying torture in few circumstances. The first writing that was written was in 1990 by Tibor Machan in which he has supported the 5 Quoted from Torture available at www.Stanord encyclopedia of Philosophy.com International Journal of Legal Research 4 Volume 1 | Issue 1 | ISSN- 2349-8463 justification of torture in few circumstances.6 After the 2002 terrorist attack on twin towers the shift is really visible. Terrorism is one of the major factors that brought the change in the notion related to torture. Globalization of terrorism has really made few jurists to think that can there be any justification for torture? Not only justification rather it can be legalized or institutionalized? There are three views: First talks about that torture cannot be morally justified; Second view suggests that it can be legalized and institutionalized; Third view is the balanced view that torture is justified in few circumstances. First View: „Torture‟ can‟t be morally justified Torture can‘t be morally justified as it involves intentional infliction of severe physical suffering. When a person intentionally causes somebody severe pain for may be for any reason how can it be morally justified. We define Morals as good values. They cannot even allow thinking that torture of a fellow human being can be justified under any circumstance including terrorism. The major scholars that support this view are David Luban7, Jeremy Waldron8, and Michael Davis9 etc. Torture is considered as real evil of all times and cannot be morally justified in any circumstances. Many Jurists have compared torture and murder or killing and have given the conclusion that Torture is greater evil than murder or killing. As Michael Davis says that ―Both torture and 6 Machan, Tibor ― Exploring Extreme Violence (Torture)" journal of Social Philosophy vol. xxi no.1 1990 7 Professor o Law at Georgetown University school of Law, USA. Luban , David 2005― Liberalism and unpleasant question of Torture‖; Virginia Law Review, Vol. 91, No.6, pp 1425-61 8 Professor of Law and Philosophy at the New York University School of Law. Waldron Jeremy, 2005, ―Torture and Positive Law: Jurisprudence or the white house,‖ Columbia Law Review, vol.105, no.6, pp105-18 9 Davis, Michael, 2005, ―The Moral Justification of Torture by and other Cruel, Inhuman, or Degrading Treatment‖, International Journal of Applied Philosophy p. 161-78 International Journal of Legal Research 5 Volume 1 | Issue 1 | ISSN- 2349-8463 (premature) death are great evils but, if one is a greater evil than the other, it is certainly torture.‖10 The conclusion to be drawn from these considerations is that torture is necessarily morally worse than killing, though in some instances it may not well be. Killing is an infringement of the right to life and the right to autonomy.11 Torture is an infringement of the right to autonomy, but not necessarily of the right to life. Moreover, torture is consistent with the retrieval of the victim's autonomy, whereas killing is not. On the other hand, the period during which the victim is being tortured is surely worse than not being alive during that time and torture can in principle extend for the duration of the remainder of a person's life.12 Many Jurists often describe the situations in which Torture can be morally justified like Tickling Bomb Case etc. The basic aim or purpose of torture is to obtain the confession or information from the person who is being tortured by breaking his will. In this particular situation Michael Davis has criticized how this justification fails in the said circumstances ―The problem is that such circumstances may be sufficiently distant from our experience that an intuition with respect to them tells us nothing about how our judgment would stand up to appropriate experience. We might, for example, no longer feel torture justified in the imagined example if our experience of even a few actual examples was that those tortured often gave misleading information, making the torture in fact useless; or that torture seldom broke the fanatic in time (or at all); or that the ―fanatic bomber‖ often proved to be a ―crazy hoaxer‖ hoping for publicity even at the price of torture; or simply 10 Ibid 11 www.stanfordencyclopediaofphilosophy.com , from Torture visited on 12.11.2009 12 ibid International Journal of Legal Research 6 Volume 1 | Issue 1 | ISSN- 2349-8463 that, having saved Paris, we nonetheless felt that we had wronged the bomber.‖13 These are the major reasons and concerns which show that torture cannot be morally justified ever.