Yuval Ginbar is a scholar and human rights activist, and has recently written a book for us called Why Not Torture Terrorists?: Moral, Practical and Legal Aspects of the “Ticking Bomb” Justification for Torture. In the post below he gives his opinions on the Israeli academics who support the use of torture in the “war on terror” and are seeking its legitimization.

Apologies. What follows are not sensational revelations about Israel’s secret involvement in torture worldwide (though there have been some reports to that effect). I am referring to a possibly less exciting phenomenon, which is all in the public domain. To me, however, it is no less worrying: Israel has produced a surprising yield of academics who support torture and seek its legitimization, if not legalisation. Publishing widely, including in the most prestigious journals and publishing houses, they advocate the use of interrogational torture in the “war on terror”.

There are variations, of course. One favours torture to be authorized by a “public committee” – a variant of Alan Dershowitz’ “torture warrants” idea. Others propose allowing “only” methods that are “short of torture,” including one who attempts to show Americans how some forms of “coercive interrogation” would accord with their Constitution. However, the methods that the “torture lite” academics recommend, such as sleep and sensory deprivation, become by all accounts – legal, “common sensical” and factual – full torture, at least over time. No – guidance on how interrogators would know when to stop are not attached. Nor are any examples of how such methods were used without becoming torture. This is because no such examples exist.

But perhaps the speciality of pro-torture Israeli academics is devising schemes which would, they say, enable an absolute legal prohibition on torture to co-exist with allowing its use in “ticking bomb situations” – a “relativized” absolute prohibition, as one of them (seriously) quipped. Some have proposed that while torture should be prohibited by law absolutely, if a leader orders torture in extreme situations, his act would later undergo “ex post-facto ratification”. Others propose a modification of deontological morality so as to allow torture in extreme situations, as long as it is not “officialized”.

However heavily endowed with academic titles the writers are, however extensive and thorough their research is, and however rich their essays and books are with references, cases and footnotes, the results are invariably absurd, as the very combination they seek is self-contradictory. In my book I analyse several of these “have-your-cake-and-eat-it” solutions. Actually, perhaps a more apt – and updated -description would be the “yeah-but-no-but” approaches to torture. They ultimately make as much sense as Little Britain’s Vicky Pollard.

All this could all have been quite amusing were it not for the fact that such scholars – and other, non- Israeli ones, of course – are advocating that our officials be allowed, through one moral or legal scheme or another, to inflict excruciating pain on helpless prisoners, demolishing in the process an international legal and moral consensus it took humanity hundreds of years to achieve. And were it not for the fact that a “yeah-but-no-but” torture system, which most of the Israeli academics are in effect modelling their proposals on, is actually in operation – you guessed it – in Israel.

In 1999 Israel’s Supreme Court prohibited issuing the General Security Service (GSS) with instructions on how to inflict what was euphemistically called “moderate physical pressure” on Palestinian detainees, as had been the custom until then, and ruled that GSS agents cannot be authorized to inflict such “pressure”. The Court cited the absolute prohibition on torture in international law. So far so good. However, when it comes to “ticking-time bomb” situations, the Court ruled that the case of a GSS interrogator who tortures (the Court too preferred a euphemism: “applied physical interrogation methods”) would then be considered by the Attorney-General, and if need be by the courts, where “his potential criminal liability shall be examined in the context of the ‘necessity’ defence” – a criminal law defence which, as currently held in Israeli law, justifies actions in extreme situations if they produce the “lesser evil”.

The result has been predictable. Within a couple of years the GSS itself was admitting it was torturing – oops! – euphemism time again: using “exceptional interrogation measures” – in dozens of cases annually. All were cases of “ticking bombs”, of course. Figures from human rights NGOs, such as the Public Committee Against Torture in Israel, have been much higher. Number of GSS interrogators convicted of torturing (or any other offence)? Zero. Prosecutions? Zero. Criminal investigations? Zero. Once introduced as a means of legitimizing torture, the “ticking bomb” and its legal corollary, the “necessity defence”, have overwhelmed the system.

Israel is not the focus of my book, but of the four “models of legalized torture” described and analysed there, two have, unfortunately, been in operation in Israel, in one form or another. Then there is the “torture warrants” model. The fourth is, of course, the US model.

But what about the big questions? Is ‘waterboarding’ or (perhaps more importantly) other, less blatant interrogation techniques considered torture under international law? Does international law allow the use of painful techniques falling short of torture, or the use of the “necessity defence” to exonerate torturers? What happens to a state, morally and practically, once it allows anti-terrorist torture? And – maybe the biggest question – would it not be morally justifiable to torture terrorists in order to save many innocent lives in “ticking bomb situations”? In other words – Why Not Torture Terrorists?