A/75/179
Punishment). Like all other methods of moral disengagement, utilitarian justification
is not a valid legal defence, but a strategy of self-deception aimed at avoiding or
suppressing the moral dilemma arising from the inherent wrongfulness of an y practice
of or acquiescence to torture or ill-treatment. 47
57. Reflecting a rationale of “the end justifies the means”, utilitarian justifications
seek to morally legitimize torture or ill-treatment as a “necessary evil” to achieve a
purportedly more important purpose. Utilitarian justification denies neither the
occurrence of torture or ill-treatment, nor individual, institutional or national
responsibility for its occurrence, but suppresses the resulting moral dilemma by
denying the wrongfulness of such practices owing to specific circumstances. The
utilitarian purposes that are claimed to justify torture and ill-treatment depend on the
context, but generally involve one or several of the basic aspects of self -interest.
(a)
Security, self-defence and self-preservation
58. The need to defend against threats to individual or public security is the
predominant utilitarian basis upon which torture and ill -treatment are justified. The
infamous legal memorandums of the Department of Justice of the United Sta tes
defining detainees in the “war on terror” as “unlawful combatants” to whom the
protections of the Geneva Conventions did not apply are a well -known example of a
Government trying to remove legal barriers to a utilitarian justification of torture. 48
In that case, the objective of defending against terrorist threats by extracting
information aimed to justify the use of “enhanced interrogation” methods. Although
the unlawfulness of that interpretation has been subsequently acknowledged by the
Government of the United States, polls conducted 10 years after the attacks of
11 September 2001 indicate that the official narrative of utilitarian justification
appears to have persisted in the public mind, with more than 70 per cent of
respondents from the United States viewing the torture of terrorism suspects as
warranted in 2011. 49 Similarly, the Supreme Court of Israel has invoked the “necessity
defence” to exempt interrogators from prosecution, noting that the use of so -called
“pressure techniques” was warranted by grave suspicions suggesting that the victim
was involved in terror activities. 50
59. Utilitarian justifications based on security and defence are particularly effective in
achieving self-deceptive moral disengagement because they instrumentalize powerful
emotions of fear arising from basic survival instincts. Examples of publicly disseminated
narratives aimed at justifying torture as a necessary means include slogans such as
“waterboarding works”, 51 the so-called “ticking bomb scenario” and sanitized depictions
of life-saving torture in mainstream entertainment, but also political narratives
demonizing certain minorities, migrants and other marginalized groups as “thugs”,
“criminals”, “terrorists”, “traitors” and “parasites”, among other things. In pract ice,
__________________
47
48
49
50
51
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Monica Luci, Torture, Psychoanalysis, and Human Rights; Susan Opotow, “Moral exclusion and
torture: the ticking bomb scenario and the slippery ethical slope”, Peace and Conflict: Journal of
Peace Psychology, vol. 13, No. 4 (2007), pp. 457–461.
Karen Goldberg and Anthony Lewis, eds., The Torture Papers: The Road to Abu Ghraib
(Cambridge University Press, 2005); Manfred Nowak, “What practices constitute torture?
US and UN standards”, Human Rights Quarterly, vol. 28, No. 4 (November 2006), pp. 809–841;
Milan Markovic, “Can lawyers be war criminals?”, Georgetown Journal of Legal Ethics, vol. 20,
No. 347 (2007), pp. 346–369.
Andrew Pilecki and others, “Moral exclusion and the justification of U.S. counterterrorism
strategy: Bush, Obama, and the terrorist enemy figure”, Peace and Conflict: Journal of Peace
Psychology, vol. 20, No. 3 (August 2014), pp. 285–299.
Communication AL ISR 7/2018 of 31 January 2018 and the response by the Government of Israel
of 4 May 2018.
See Office of the United Nations High Commissioner for Human Rights, “Torture is torture, and
waterboarding is not an exception – UN expert urges the US not to reinstate it”, 30 January 2017.
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