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Rethinking Torture

Rethinking Torture

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An essay for the 2011 Undergraduate Awards (Ireland) Competition by John Walsh. Originally submitted for Law with Politics at University of Ulster, with lecturer Gina Bekker in the category of Law
An essay for the 2011 Undergraduate Awards (Ireland) Competition by John Walsh. Originally submitted for Law with Politics at University of Ulster, with lecturer Gina Bekker in the category of Law

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Published by: Undergraduate Awards on Aug 31, 2012
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Student ID: 9th November 2009Title: Rethinking Torture Word Count: 3173
Should we legalise torturing paedophiles or terrorists because the public have littleregard for such people?Key Words: Terrorist, Paedophile, Torture, Marginalised, Human Rights.Abstract:
The focus of this paper has been to address arguments that under a ‘ticking bomb’ scenario itshould be permissible for security agents or police, on behalf of the state, to resort to thetorturing of suspects. Consideration has been made of the assertions from some leadingacademics that torture laws are outdated and unnecessarily burdensome upon lawenforcement agencies. The paper considers the merits and possible consequences to both;any would be recipient of such treatment, and, potential subsequent implications for societyeven if no regard should be given to suspect’s human rights.
Marc Dutroux & Magnus Gäfgen:
 Unlike most of the substantive clauses of the European Convention on Human Rights, Article3 makes no provision for exceptions and no derogation from it is permissible. Article 5 of theUniversal Declaration of Human Rights succinctly states;
 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or  punishment.
From 1992 until December 1995 young girls were being abducted in Belgium until aknown paedophile was arrested. Marc Dutroux had previously been convicted in 1989 forthe abduction of five young girls. He was released again just prior to the disappearances in1992 and only by chance became the prime suspect in 1995.
Dutroux’s trial took place in2004 under the attention of the world’s media. The Police came in for much criticismhaving failed to discover two eight year old girls concealed in a hide in Dutroux’sbasement which they had searched.
... Dutroux was sentenced yesterday to life in prison with no possibility of parole,bringing an end to a case that has haunted Belgium for nearly a decade.... Dutroux's ex-wife, Michelle Martin, was sentenced to 30 years in prison for thedeaths of two eight-year-olds who starved to death while Dutroux was serving a short 
Dr W.Ph. (Wouter) Stol, Policing Child Pornography On The Internet,
The Police Journal 
, 2002, Volume 75,Issue 1,
Student ID: 9th November 2009Title: Rethinking Torture Word Count: 3173
 jail sentence for car theft. Martin said she was too afraid to enter the basement to feed them
 The case did much to highlight the importance of coordinated communication within policedepartments on known paedophiles. It is probable that better police co-ordination wouldhave assisted in Dutroux being apprehended much sooner. Madeline McCann’s abductionhas highlighted the same prevalent problems between neighbouring jurisdictions. However,the notoriety of the Dutroux case may have contributed to German police acting differently inan unconnected case.On 27 September 2002 Magnus Gäfgen lured an eleven year old boy into his flat thensuffocated him by wrapping his head in plastic tape. Gäfgen then deposited a letter at thechild’s home demanding one million Euros ransom. He then drove to private property nearBirstein, one hour’s drive from Frankfurt, and hid the child’s corpse under a jetty of a pond.
 Gäfgen was observed by police surveillance collecting the demanded ransom. He wasobserved lodging some of the money into a bank and kept the rest at his flat. After the policearrested him he showed a determined resolve to remain silent about the child’s whereaboutsunder interrogation. From the available facts it was reasonable for the police to be workingon the assumption that the child was still alive. However, fearing for the child’s safety apolice officer acting on the orders of a senior officer told Gäfgen
“that he would suffer considerable pain at the hands of a person specially trained for such purposes if he did not disclose the child’s whereabouts
Convinced he was to be tortured Gäfgen informed thepolice that the child was already dead and brought them to where he had concealed thecorpse.The German Courts being aware of the threats made by police to torture the defendantinformed Gäfgen that his incriminating statements made as a result would not be admissibleagainst him and that this also meant that as the child’s corpse was the fruits of his disclosuresthat would not be used as evidence against him either
. The case was effectively reduced to just the police surveillance of him collecting the ransom. Had he been convicted of this thenhe would likely have got a lesser sentence. However he rather foolishly repeated his accountin Court of how he had killed and disposed of the child’s body.Gäfgen’s case is perhaps the best, and most reliable, case available to represent policebelieving they were working to a ticking bomb scenario. The police officers ultimatelyreceived a guilty but not to be punished verdict for their preparedness to resort to torture
.The verdict against the police officers involved makes allowance for the police officers tohave acted as they did under the circumstances. The question is this, is Gäfgen’s caseargument for torture being legalised or argument against? Fighting wars and defending
Belgian child rapist and killer gets life in jail without hope of parole, The Guardian, Wednesday 23 June 2004,http://www.guardian.co.uk/world/2004/jun/23/dutroux.childprotection
Gäfgen v. Germany
(Application no. 22978/05)
Strasburg, 30 June 2008.
See also, Othman v Home Secretary (CA) [2008] 3 WLR, &, [2008] EWCA Civ 290
Kai Ambos
, May a state torture suspects to save the life of innocents?, [2008],
 Journal of InternationaCriminal Justice.
Student ID: 9th November 2009Title: Rethinking Torture Word Count: 3173
human rights are both nasty and dirty business, where sickly sweet bleeding heart liberals cancause more harm than good.
Rethinking Torture Era:
This last decade has seen legal academics, military and government strategists, question thewisdom of never permitting the use of torture. Substantial numbers of observers have arguedthat an absolutist opposition to any breaches of a suspect’s right not to be subject to torture orinhuman and degrading treatment is outdated. They would argue that society’svulnerabilities outweigh old taboos and civilised interrogations are not likely to persuade adedicated and fanatical terrorist to be co-operative. This is persuasive argument particularlyin light of the fact that Radical Muslims would readily kill themselves without hesitation soare unlikely to wilt at raised voices in a police station.As was evidenced in the Gäfgen case police thought to override the suspect’s rights with therights of the child. It is a reasonable bargain where an abducted child is alone and sufferingto make his probable abductor suffer until he imparts the information needed to rescue thechild. Where the state may not officially sanction torturing Gäfgen’s case does drawattention to a unique verdict, guilty but with no punishment. Technically this could providefor torture but without official sanction. If police relied on it too frequently then that mayappear as an abuse of this verdict which could be construed by Strasburg as form of officialsanction. This verdict also offers some safeguards from police abusing it, because the policewill still be found guilty of torture and any sanctions would be dependent upon the policehaving acted in good faith. Gäfgen’s case is perhaps all the more relevant
the policegot it wrong as the child had already been murdered but good faith was evident on thepolice’s part. Had the police got it right and saved the boy the Court may well have beeneven more imaginative in absolving the officers charged with torture or intention to torture.
Milgram’s Experiment 18:
Social psychologist Stanley Milgram devised a variety of experiments to demonstrate therelationship between obedience and authority. In his ‘experiment 18’ volunteers wereprepared to instruct a proxy to administer electric shocks of up to 450 volts to a ‘victim’simply because they themselves were told to do so. According to Milgram, this resemblesreal-life incidents in which people see themselves as merely cogs in a wheel, just "
doing their  job
", excusing themselves from responsibility for the consequences of their actions. Despitethe screams of the victim, who had done no wrong, 26 out of 40 volunteers were prepared tocontinue increasing the voltage level until the maximum voltage was reached. Only one of the volunteers is reported to have queried, “What if he is dead in there?”
We saw this phenomenon at Abu Ghraib, where military intelligenceofficers gave MPs vague directives like “‘Loosen this guy up for us.’‘Make sure he has a bad night.’ ‘Make sure he gets the treatment.’”Strictly speaking, that is not an order to abuse. But what is it?
Duncan Forrest,
 A Glimpse of Hell: Reports on Torture Worldwide
, (Cassell, 1996), Page 88.
Steven Lee (edited by), Intervention, Terrorism, and Torture:
Contemporary Challenges to Just 
War Theory (Springer), 2007, page 258.

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