The Legality and Morality of Torture, Extraordinary Rendition, and Targeted Killing of Terrorists in Countering Global Terrorism

International human rights organizations and advocates have claimed that since the start of the United States' "global war on terror," there have been numerous targeted killings, detentions without charge, acts of torture, and renditions of people thought to be terrorists. These actions are expressly prohibited by national and international human rights legislation and principles, but they have nonetheless been carried out. Due to the potential for countries to use religion as a general justification, the reality that the majority of these practices are directed at Muslim minorities or groups makes this issue important for social justice among them the United States, to commit grave social injustices against otherwise innocent people. In this paper, I support the thesis that based on strict interpretation of international law principles and norms, unlawful detention, torture, extraordinary rendition, and targeted killing of local and international terrorists and terror suspects are illegal and unethical even when used as a counter-terrorism measure.

This following is the road map of this paper. In the first section, I will examine and review the available literature on this social justice issue. The second section will comprise of a summarized assessment of this issue including the impact of the current policies to deal with this issue and the policy changes that need to be made to address the issue. Here, I will define what constitutes torture, extraordinary rendition, targeted killing, and unlawful detention and provide an explanation as to why these are important social justice issues that need to be addressed by the whole world.

Literature Review

A lot of literature has been written about the legality and morality of using torture, detention without trial, and rendition as a counter-terrorism measure against individuals suspected to be planning terror attacks or who have committed terrorist acts. A review of the literature shows that most people are against the use of these practices, method, or techniques as ways of dealing with a terror suspect in the domestic and global war on terror. While those who support these techniques argue that it is better to use them against a few terrorists who a danger to the society than to allow them to destroy lives, those opposed to these methods of confronting terror argue that it is against social justice to do so. The injustice inherent in the application of torture, rendition, detention without trial, and targeted killing is that they deny the people accused of or suspected to have perpetrated terror acts the right to due process (Barak-Erez et at., 2010). For, in most cases, these suspects do not get a fair trial which is a fundamental element of natural and social justice.

The Legal and Moral Aspects of Torture

Torture refers to the use of physical force against a person with the intent of compelling them to do something, reveal any information, or confess to the commission of a crime. It is now a common interrogation technique used against terror suspects by most ‘liberal’ democracies such as the UK, and the US. This is despite the fact that various international law instruments including the Universal Declaration of Human Rights explicitly outlaw the application of such practices against individuals whatever their crime or offense. One of the most common forms of torture according to Costanzo and Gerrity (2009) is waterboarding which has its roots in the medieval torture chambers. Under this method, investigators pour water down the throat of restrained prisoners, and as they struggle, they are compelled to experience the drowning’s sensation. According to Article 1 of the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment, or the Torture Convention of 1984, torture is defined as an intentional infliction of physical or mental pain or suffering on a person. The infliction of pain has to be for the purpose of obtaining information from them or a third party, and the infliction of such pain or suffering is done by or at the instigation of and consent of a person acting in an official capacity of a public official. The Convention further states at Article 2(2) that:

No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.”

Article 5 of the 1948 Universal Declaration of Human Rights also provides that no person should be put to torture or degrading, inhuman, or cruel treatment or punishment.

The hypothetical case of the ticking bomb or the ticking bomb hypothesis is commonly used by countries practicing torture to justify this practice. Under this hypothesis, it is argued that in situations where a terrorist admits having planted a bomb set to go off within 24 hours but declines to reveal the location of the bomb, it is justifiable for interrogators to apply torture to get the terrorist to talk so as to reveal the location of the “ticking bomb.” However, from an ethical point of view, torture of human beings cannot be justified this way since the end which is saving lives does not necessarily justify the means which is torture. Moreover, it is not possible for such a ‘ticking bomb’ scenario to exist in real life since it is possible for a terror suspect to lie about the location of a bomb (O'Connell, 2003). According to Evans (2005), the political and philosophical debate concerning whether or not torture is ever justified started with the treatment of the Guantanamo Bay prisoners in the US and photos of Iraqi prisoners being tortured by American soldiers. According to him, this discourse centers around the issue of whether torture should be absolutely prohibited or it should be justified under carefully specified circumstances, it should be permissible to torture suspects to elicit information from them in a bid to save innocent people in the society likely to be harmed by the suspect’s failure to cooperate with investigators. Moreover, according to him, based on the moral absolutism perspective which states that people should only do things when they are right and not calculate their actions’ consequences, torture is not an acceptable practice, and hence, there should be an absolute prohibition against torture. Morally, torture is also wrong and unjustified given that it leads to the dehumanization of people by portraying them as pawns who can be easily be manipulated using their pain. Despite this and other unequivocal prohibitions on torture by international human rights instruments, torture persists and continues to be practiced by nations that feel they are more susceptible to terror attacks.

The Legality and Ethicality of Rendition and Unlawful Detention

Rendition, on the other hand, refers to the practice by the US in which suspected terrorist are transported against their will and clandestinely or discretely to secret locations, such as Syria, Morocco or Egypt which are some of the countries that use torture against prisoners (Costonzo & Gerrity, 2009, p. 180). This technique of dealing with terror suspects has, however, caused a stir among international human rights lawyers and activists who have blamed it on several enforced disappearances of many people suspected of having an association with terror organizations. In most cases, it turns out that these people do not harbor any terrorist intent, but the act of being branded terrorists is what makes them commit acts of terror against innocent civilians. According to Sadat (2007), as a method through which detainees are transferred and taken abroad for interrogation and detention from one country to another on behalf of another nation. Usually, the US is not in compliance with the Geneva laws of war and the international human rights law. Hence, from a legal standpoint, the practice of extraordinary rendition is an illegal practice as it undermines fundamental rights and freedoms of the prisoners subjected to rendition. According to Paust (2009), for example, during the Bush administration, there were a series of forced disappearance of people suspected to be associated with terrorists particularly following the 9/11 terror attacks on the US soil. This author argues that between 2001 and 2009, there were various secret detention and transfer of prisoners across borders.

Unlawful detention refers to the practice of holding suspects in prison for an indefinite period without giving them the opportunity to face legal trials. Currently, many prisoners still being held at the Guantanamo Bay prison by the United States are being held unlawfully and illegally since there is no legal basis at all for trying some of these prisoners both under domestic and international criminal laws and laws of war. Their continued detention at this facility without recourse to the courts is a perfect example of unlawful detention being practiced in the United States. Morally and ethically, unlawful detention cannot be justified since it not only undermines people’s rights but also leads to injustice to those being illegally detained and their families. Most of the unlawfully detained men and women have families who undergo a lot of anguish and suffering whenever their fathers are forced to disappear. It undermines social justice when sometimes otherwise innocent individuals are illegally sent abroad to be kept and locked in prisons away from their loved ones.

The Legal and Ethical Aspects of Target Killings

Another social justice issue that has caused controversy under international human rights law is that of targeted killings. Targeted killings refer to murders of specific people suspected to be have committed serious crimes against nations and in most cases, these killings are directed at particular groups of people whose ideologies and beliefs are taken to be a threat to humanity (Finkelstein, Ohlin, & Altman, 2012). It has also been defined as the deliberate lethal attack carried out by government forces and agents directed towards a specific individual who is not in the custody of the law enforcement or investigating agents (Bachmann, 2013). Under targeted killings, particular people are pinpointed and then labeled as high-value targets and then military operations are executed aimed at their elimination most often under the disguise that the individual is a threat to national security. Examples of the targeted killings according to Bachmann (2013) include the Israeli Mossad Operation and the operation ‘Neptune Spear’ carried out by the intelligence operatives or assets and the Special Forces. One of the ways through which targeted killings are carried out is through the use of drones which are unmanned robotic planes capable of identifying and picking targeted people considered to be an enemy. The use of drones in warfare is already a contested means or method of war under international humanitarian law, and hence, from a social justice perspective, it is an illegal means of war. Bachmann (2013) argues that though targeted killings may serve as effective ways through which short-term tactical goals during operations, they are increaseing and unregulated as is used by the US in its war on terror is not only illegal but also immoral. According to this author, targeted killings as counterterrorism measures against terror has mainly been used in targeting and decapitating the command structures and leadership of Taliban, Al-Qaeda, and other affiliated terrorist organizations across the Middle East. He argues that since 2004 up to 2009, a total number of 3176 people have been killed in various parts of the world due to the use of unmanned combat aircraft systems, unmanned aerial vehicles or drones. According to Ramsden (2011), however, targeted killings using drones such as those aimed at Anwar Al-Awlaki the leader of Al-Qaeda in the Arabian Peninsula (AQAP) which is a terrorist organization according to US officials may be justified under international humanitarian law when the individual has committed, and is involved in active terrorism acts. As Alston (2011) argues, countries like the US should be held accountable for the various targeted killings carried out by their defense forces and intelligence offices as they have an obligation under international humanitarian and human rights laws.

Discussion

My assessment of the issue of unlawful detention, rendition, and torture of terrorists, whether home-grown or global, is that it is moral, ethically, and legally wrong for people to be targeted and killed without affording them their due process rights. The existing theory and data on this issue show divided opinions on the issue, but provide an insight into the arguments for both sides of the debate as to whether terror suspects should be executed without following clear legal procedures. However, in countries like the United States, there is a gap in the policymaking on this issue as the country seems to go against its own constitutional values and principles by continuing to detain prisoners at Guantanamo Bay illegally.

Some of the policy changes that need to be made concerning this issue include changes to national laws to conform to international human rights law, giving terror suspects the right to have legal recourse and to be tried in open courts, and enact regulations on the humane treatment of prisoners. These laws should conform to the Torture Convention and other laws that guarantee protection to prisoners of war. Furthermore, as Paust (2009) points out, those who have been unlawfully detained, rendition, and targeted should be compensated by the state governments responsible for their illegal detention.

Conclusion

The proposed policy changes may be implemented by strengthening the current legal framework on handling terror suspects and coming up with regulations that would govern the treatment of prisoners of war including terrorists. New policies may also be implemented to assure that terror suspects will not be unlawfully detained, renditioned, tortured, and targeted or killed. Instead, the suspects should be tried and convicted or acquitted by the law to protect their due process rights. The implications of these changes are that they will totally change the approach by states towards dealing with terrorism within the purview of the law. Counter-terrorism, the ticking bomb hypothesis, and the global war on terror should not be used as justifications for illegally detaining, renditioning, torturing, targeting and killing using drones people suspected to be associated with terror organizations unless the correct legal channels have been followed and the suspects gave the opportunity to defend themselves.

References

Aliston, P. (2011). The CIA and targeted killings beyond borders. Harvard National Security Journal, 2, 284-439

Bachmann, S. (2013). Targeted killings: Contemporary challenges, risks, and opportunities. Journal of Conflict Security Law, 18(2), 259-288

Barak-Erez, D., et al. (2010). United Kingdom: The “war on terror,” U.K.-style- The detention of suspected terrorists. International Journal of Constitutional Law, 8(1), 131-145

Costanzo, M.A., & Gerrity, E. (2009). The effects and effectiveness of using torture as an interrogation device: Using research to inform policy. Social Issues and Policy Review, 3(1), 179-201

Evans, R. 2007. Torture: Does it make us safer? Is it ever ok? A human rights perspective. Human Rights & Human Welfare, 7, 53-65

Finkelstein, C., Ohlin, J.D., & Altman, A. (2012). Targeted Killings: Law and morality in an asymmetrical world. Oxford: Oxford University Press.

Paust, J.J. (2009). Civil liability of Bush, Cheney, et al., for torture, cruel, inhuman, and degrading treatment and forced disappearance. Case Western Reserve Journal of International Law, 42(1), 359-388

O'Connell, M.E. (2003). To kill or capture suspects in the global war on terror. Case W. Res. Journal of International Law, 35, 325-333

Ramsden, M. (2011). Targeted killings and international human rights law: The case of Anwar Al-Awlaki. Journal of Conflict Security Law, 16(2), 385-406

Sadat, L.N. (2007). Extraordinary rendition, torture, and other nightmares on the war on terror. George Washington Law Review, 75, 101-118