Torture

Daniel Hill’s ‘Tortue and Self-Defense’: Comments

Joseph Shaw

I think the examples and discussion throw up some extremely important questions, and I will try out another response, below. There are a few relatively minor issues I disagree with you about, however, and I’d like to get them out of the way first.

First, while is relatively uncontroversial to say that killing is ok in war and self-defence, it is not uncontroversial to derive the right to kill in war from the right to kill in self-defence. This move is fashionable with certain kinds of political theorist, but Thomists disagree, and there are a lot of them about in the debate about intention. Aquinas is a lot more comfortable with the state’s right to kill than with the private citizen’s; so deriving the former from the latter would be retrograde.

Second, I don’t like the terminology of ‘intentionally causing harm’. Agent either acts with the intention to cause harm, or he doesn’t. If he doesn’t, he may still be acting intentionally, and if he is acting intentionally, what he is doing may be causing harm. In which case it is natural to say that he is intentionally causing harm—although (ex hypothesi) he is not acting with the intention of causing harm. People like Anscombe even say that an intentional action which knowingly causes harm is intentionally causing harm, and that this allows us to conclude that the harm is intended—which is hopeless. To avoid the muddles which arise from that scenario, I completely avoid using the adverb ‘intentionally’.

Third, I am surprised at what you say about innocent threats: the child playing with the hand-grenade and so on. It is well-established in the debate—obviously not infallibly so—that one can intend to harm innocent threats, and I should like to see a full-length argument against this view. (Innocent threats are distinguished in the Catholic tradition as ‘material aggressors’, as opposed to ‘formal aggressors’.) There is a very good reason for this: in the paradigm case of the just war, the subjective guilt of enemy combatants has got to be irrelevant to one’s right to kill them. One may even be quite sure that the enemy soldier is convinced, on the basis of the information available to him, of the justice of his cause. But the right to self-defence, public or private, is not removed by this. What it depends on is the objective rightness of the situation: if you know he’s wrong to be attacking you, you can resist. The same goes for the child and the grenade: he’s a material aggressor; the aggression is unjust; one may resist the aggression.

Fourth, I am extremely wary of distinctions between ‘positive’ and ‘negative’ actions and the like. Do you have a neat and tidy criterion for the distinction? You need to state what it is. Personally, I think that Jonathan Bennett has buried that whole approach in ‘The Act Itself’. But I’ve got a paper about it if you’re interested, which is also relevant to my solution below (‘A Use for the Act-Omission Distinction’).

On the major issue: now that you’ve convinced me that we have to talk about intending harms and pains in self-defence, it would seem that the right to self-defence comes down to the right to inflict harms and pains on people. So the problem is: why do our intuitions tell us it is ok to inflict pain on a paradigmatic aggressor, like the 11-yr-old, and on the terrorist reaching for the bomb switch, and not ok to torture a terrorist into telling us where the bomb is hidden, and things like that? Let alone the terrorist’s otherwise innocent wife, who knows the secret, or the retired bomb-disposal expert, who is reluctant to help. (Nice examples.)

A couple of possibilities come to mind. One is: are the people in the latter category aggressors, in the same sense as people in the former category? At first glance it would seem that the only way of distinguishing them from aggressors would be some positive/negative distinction which I am quite sure would collapse the moment it is articulated. But I’ll come back to this.

Another is that our intuitions tell us no such distinction. Of course it is morally ok to torture the terrorist for information which will reliably save lives, and the wife, and the retired bomb expert. All of them are in fact guilty of a very serious wrongdoing, of failing in a positive duty to aid others and undo a wrongdoing, when it is in their power to do so, and where the cost of doing so is small. (They are accessories to the bomb-planting, in fact, either formally or materially.) And anyway, if we define ‘material aggressor’ as ‘person who is a causal factor in an impending harm, and harming whom could avert the harm’, then they are material aggressors, and the question of guilt does not even arise.

A third possibility, which in a way incorporates both the above, is this: in drawing up rules of engagement for soldiers and police, especially in a situation where one hopes for reciprocity from the enemy (as in the Geneva Convention), it may makes sense to make some distinction here, for practical and pragmatic reasons. Because of the marked tendency to over-use torture, the high likelihood of persons being tortured who actually lack the information being sought, and the appalling nature of torture itself, it may seem sensible to agree that harms should not be inflicted when a person has surrendered. Physical surrender is without doubt the key to the rules of engagement: that is when harm must stop. As discussed, a person may continue to be an aggressor, material or formal, while in secure custody, by withholding information. Indeed enemy soldiers with knowledge of their army’s secrets will normally come into this category. But in the interests of placing a limit on the horrors of war, the convention that one may not harm such aggressors is agreed, and becomes morally binding.

So here is a type of active/passive distinction which will resist collapse: different norms apply before and after surrender; surrender being a conventional concept indicated by intentional use of conventional signs.

How about that?