Case Study:

Opposing Conceptions of Human Rights as they relate to the Issue of Torture

By Denise Noblet
8 August 2002

The Convention Against Torture recognises that the right not to be tortured derives from the
inherent dignity of the human person. To conceive of human rights in this way is to accept
that no justification can be made for denying them. The existence of human rights is not
subject to a personʼs actions. Human rights cannot be lost or withheld. A person possesses
human rights simply by virtue of being human.

The idea of human rights as universal is the very foundation of the Convention Against
Torture. In theory, it is a stance upheld by all countries that enter the discourse on torture. Yet
in practice, I would argue that this idea does not apply. In practice, it appears human rights as
they relate to the issue of torture derive not from the inherent dignity of a person, but instead
are subject to a personʼs actions in relation to authority (the legitimate source of power).

From this position, it follows that human rights can be lost or withheld. What is more, the loss
of rights is the responsibility of the person who loses them through their actions, and not the
person who takes them as a result of these actions.

As an example, consider the alleged attitude of the US towards its prisoners of the War
Against Terrorism. On October 31, 2001, the Washington Post reported that some FBI
officials, frustrated by the detaineesʼ refusal to cooperate, had begun to discuss moving
beyond lawful methods of interrogation. As noted on the Human Rights Watch website,
“discussions reportedly included the possibility of using physical force, ʻtruth serumsʼ and
extraditing detainees to countries where torture is used.”

While the FBI publicly denied the allegations, the issue raised some debate within the media
and the general public. Those who argued for the use of torture as a method of interrogation
put forward the notion that the goal of saving lives must override a personʼs right not to be
tortured. (This justification has been used by other countries in the past, including Israel in its
treatment of PLO detainees, and is known as the “ticking bomb scenario”.) In other words,
“extreme times call for extreme measures.”

Such an argument is incompatible with the conception of human rights as universal. It is for
this reason that the Convention Against Torture holds 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 2.2).
Convention Against Torture Denise Noblet

However, the justification for torture is compatible with the idea that a personʼs entitlement to
human rights is subject to their actions. By committing acts of terrorism, for example, a person
forfeits their human right not to be tortured. The emphasis on human action as opposed to
inherent human dignity as a basis for human rights places human rights firmly, and solely, in
the realm of law (as opposed to the heart). Herein lies the problem of compliance. For if the
laws against torture are not perceived to be legitimate in certain contexts, there is no intrinsic
motivation for governments, communities or individuals to follow them. There are only
strategic considerations, and the stark notion that the end justifies the means.

Until governments integrate and apply the principles inherent to the Convention Against
Torture – until they treat people on the basis of their humanness and not their actions – I
believe the Convention Against Torture is more likely to be flouted than followed when
governments find themselves in “extreme times”.

Page 2 of 2