Ethics for Enemies - Terror, Torture, and War

Table of contents :
Introduction
1. Torture: During and After Action
2. Terrorism and Intending Evil
3. Reasons for Starting War: Goals, Conditions, and Proportionality
Bibliography
Index

Citation preview

ETHICS FOR ENEMIES TERROR, TORTURE, AND WAR F. M. KAMM

OXFORD UNIVERSITY PRESS

OXFORD

UNIVJIJI.S!T'I' PILBSS Great Oarmdon Street. Oxford oxi 6DP Oxford Uoivcmty Press is a depanment of lhe UnM:nityofOxford. It fortll= tht Univcuity's ob;ective of aa:llenc.e in research,sdlolanhip, alld educatioo by pubJisJ,ing worldwide in Oxfonl New York \vi •1...d Cape Town Dar cs Salaam HoogKoog Karachi. Km1a Lumpnr Madrid Melbourne Mexico City Nairobi Kew Delhi Sbangbai Taipei "foronto Wrth offices in Argentina Aosaia Brazil Chile C1>ech Republic Fr.in« GIUOC ('JUataUala Hungary Italy Japan Po&and Portugal Singapore Solllh Korea Switterlaod Thailand Turkey l;'\:raine Vaetaam Ou>rd isa ttgistaed trade mark ofOr.ford l:nivcnity Press in the UK and in certain other c:ounlries Pnblisl>ed in the United SWes by Oxford University Press loc., � Yon: OF. M. Kamm 2011 The moral rigbl!I of the author have bceo aucrtcd Daubase right Oxford l,'niYenity Pit$$ (mal is maintaining the threat, and (b) that if this person also started the threat, it is appropriate to say that in maintaining the threat, he is still presenting the threat." Notice that for Shue, what is important about someone who could comply with a request to give information about the threat he started is that he is not defenseless (in the sense that be may have a means of stop­ ping the torture). For Sussman, what is important about such a person is that he is maintaining anibility, of course, that other people who are intimidated. or pres­ sured are being tortured p!>-ychologically, even though they are not defenseless to stop their being tortured.]) Suppose that Shue is oorrect to revise his ac.count oftorture as it actually occurs (and so as it is conceptually possible for it to occur) to include the possibility of torturing those who are not defenseless because they can sur­ render. (The possibility ofsuch torture does not mean it is permissible.) We noted above, in discussing attacks on combatants in wartime, that the ina­ bility ofsomeone to defend himselfby counterattack did not seem relevant to whether he remained a combatant or to the permi�ibility of attacking him to stop his threats. The same would be true ifthis individual lacked the ability t.o defend himself by surrendering.12 (For example, the combatant might lack the capacity to signal surrender.) So it is not clear that in the case of torture either, a person lacking the ability to protect himself (or the ina­ bility ofothers to protect him) by doing what is asked of him (or them) is what makes torture impermissible when it is impermissible. B. SUSSMAN

Now let us consider Sussman's characterization of torture, with only minimal attention to the moral issues they raise. He says: At a minimum, torture involves the deliberate infliction of great pain or some other intensely distressing affective state (fear, shame, dis­ gust, and so forth) on an unwilling person for purposes that person does not and could not re-J.sonably be expected to share.... In addi­ tion ... torture seems to require that its perpetrators and victims be

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TORTURE: DURING ANO AfTER ACTION

placed in a distinctive kind of social setting and relationship to one another. Victims of torture must be, and must realize themselves to be, completely at the mercy of their tormentors. This condition in­ volves two distinct elements. First, being at another's mercy requires that there be a profoundly asymmetric relation of dependence and vulnerability between the panies. The victim of torture must be un­ able to shield herself in any significant way, and she must be unable to effectively evade or retaliate against her tormentor. . . . Second, the torture victim must see herself as being Wlable t o put up any real moral or legal resistance to her tormentor. The victim takes her tormentor to be someone who can do anything he wants to her, who docs not have to worry about answering any challenges that the victim (or her representatives) might put to him. The torturer confronts no moral or legal impediments stenuning from his vic­ tim's will, but evidentJy takes himself to be limited only by his own desires and interests, or the desires and interests of those he serves as an agent. . . .The asymmetry of power, knowledge, and prerogative is absolute: the victim is in a position of complete vulnerability and exposure, the torturer in one of perfect conlrol and inscrutability. Characteristically, the torture victim finds hersel.f to be not only physically and morally defenseless, but [also] exposed to a will that appears largely if not completely arbitrary. . . . Of course, a victim might know that she is being tortured for a specific purpose { to ob­ tain some particular piece of information, perhaps, or to incrimi­ nate someone) or that her torturers operate under some significant restrictions (perhaps they have orders not to kill or leave any pe r ­ manent marks on the victim). Yet even in these cases, the victim's only grounds for such beliefs about her tormentors' ends and in­ tentions come from how these tormentors choose to present them­ selves to her. lypically, a torture victim has no independent way of corroborating any admissions or assurances of her torturers. 13 Despite this characteri1.ation, Sussman does not think that torture, even in the case.� he is most interested in, necessarily involves a victim who no longer presents a threat to anyone. I conclude this, in part, because he considers whether, even in self-defense, we might be more reluctant to

TORTURE: OURING ANO AFTER AOlON

11

torture someone than to kill him. 11 This conclusion is also supported by his views (a) that someone who refrains from giving information that could easily be given to stop a threat to innocents js maintaining the threat, and (b) that if Lhis person also started the threat, it is appropriate to say that in maintaining the threat, he is still presenting the threat15 Notice that for Shue, what is important about someone who could comply with a request to give information about the threat he started is that he is not defenseless (in the sense that he may have a means of stop­ ping the torture). for Sussman, what is important about such a person is that he is maintaining and indeed still presenting a threat. If a person is still presenting a threat, then inflicting distress on him in order to stop his threat would not be a typical instance of torture on Shue's charac­ terization of it By contrast, inflicting distr� on such a person is con­ sistent with Sussman's characteri1.a tion of torlure. Sussman thinks that interrogational torture has a distinctive wrong­ making characteristic, though this does not, therefore, make it worse or a more serious wrong than other things we might do to someone. The distinctive wrong-making characteristic is supposed to involve t.aking over someone's body so that he is aware of his body and his sense of agency (insofar as it is intimately bodily) betraying him by "speal