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This chapter looks at how the context of war affects the ethics of torture and considers the role that just war theory and international humanitarian law should play in governing its use or prohibition. Just war theory supports the principle of distinction, which grants protected status to civilians and anyone else (including captured and injured combatants) who is “out of the fight.” The principle of distinction is crucial both for limiting the horrors of the conduct of war and for making it possible to end active conflict and achieve reconciliation between adversaries. This chapter argues that the absolute moral prohibition on torture in war can be defended by validating the reasonability and importance of the conventions of international law, rather than needing to argue in the other direction—from the immorality of torture to the force of international laws banning its use. It also argues against the sort of justifications given for torture by its apologists—particularly, the dehumanization of one’s enemies by their vilification as evil, and the use of abstract cases—such as the ticking bomb scenario—that depict them as possessing evil-genius superpowers.

This chapter considers whether moral philosophers should accept as part of their moral methodology the study hypothetical cases, such as ticking bomb scenarios, in thinking about torture. In response to the criticism of such scenarios by Albie Sachs, this chapter argues that such cases are useful for thinking about the ethics of torture if their function is properly understood. Such thought experiments are quite typical of moral philosophy in general, and do not necessarily generate objections. Moreover, those who engage in evil actions render themselves liable to torture as a means of prevention or self-defense. Hence this chapter rejects any absolute moral prohibition on torture. Nonetheless, there are pragmatic, consequentialist considerations that can justify an absolute legal prohibition on torture. Such a legal rule would help prevent mistakes and help prevent the torture of the innocent and others not liable to attack on just war theory. An absolute legal prohibition on torture is justified because on balance no more flexible stricture on its use is likely to be as productive of good outcomes.

The introduction to this volume gives a brief overview of the recent history of torture, and how the American “War on Terror” changed the U.S. from being a key critic of torture to one of its users and defenders, putting it at odds with international law and much global opinion. It then surveys some of the complex issues that arise in thinking holistically about the nature of torture, its ethical aspects, its place in war, and its cultural significance. It then previews the fourteen chapters of the volume, noting many of the connections that appear when thinkers from different disciplines address the subject in its broader context.

This chapter, adapted from Sachs’ intellectual memoire The Strange Alchemy of Life and Law, details Sachs’ experience of torture at the hands of the South African Apartheid government for his work on behalf of the African National Congress (ANC). He describes his role in deliberations as an adviser to Oliver Tambo, acting president of the ANC, in dealing with ANC’s own use of torture in its fight against Apartheid. Sachs then describes the development of his own thinking about torture after becoming a justice of the Constitutional Court of South Africa in the post-Apartheid era. Sachs argues that torture is never acceptable, and illustrates the difficulties created by using abstraction and thought experiments in arguments about torture. He describes some of the difficulties torture and terrorism create for achieving reconciliation between formerly warring parties. He proposes that justice is a kind of “soft vengeance” against those who engage in torture.

This chapter argues that part of what makes torture a distinctive ethical problem is that it impedes relations between people when one tortures another. In a way similar to how Thomas Nagel describes tactics of “dirty fighting,” torture as a means of combat attacks human weaknesses of its victim, rather than addressing one’s enemy directly in that person’s capacity as a threat or combatant. Even if one is licensed to harm another as a means of self-defense, the techniques one is permitted to use should provide for possibilities of reconciliation if both parties survive past hostilities. That is, techniques of self-defense should be constrained by principles of reciprocity, such as might be agreed to in a contractualist bargain. However, if one’s enemy has engaged in torture toward oneself or one’s loved ones, this may license torture as a defensive measure, since reconciliation may already be beyond hope. If terrorism is similarly unjustifiable in general as torture is, then this might then might also license torture in self-defense there as well.