Afua Hirsch: A proud 700-year history of double standards on torture
[Afua Hirsch is the Guardian's legal affairs correspondent. She has practiced at the bar in criminal defence and public law and teaches constitutional and human rights law.]
There is nothing new about British officials condemning the use of torture in unequivocal terms. "The illegality of torture in England has been a subject of boasting among Englishmen for more than five centuries," wrote Harvard law professor Lawrence Lowell in 1897. The rejection of torture as a sensible means of establishing guilt dates even further back, to at least the 13th century, when a distinction was recognised between "truth by revelation" (extracted by priests) and "truth by discovery" (based on rational principles).
But when it comes to the use of torture by foreigners, the story gets more complicated. When Edward II authorised the "interrogatory torture" of the Knights Templar in 1311, for example, following a request by the pope, he refused to do so with reference to English law. The Knights Templar were tortured anyway, and no doubt it made little difference to them which legal system had authorised the warrant. It is hard to avoid the conclusion that the medieval king was performing a delicate operation to preserve the upper moral hand of English law.
Methods of torture appear to have advanced remarkably little over the years, which makes the current allegations of British complicity with the pulling of fingernails, or the applying of razor blades to genitals (this time to terrorist suspects rather than renegade knights) all the more reminiscent of similar double standards 700 years ago.
The debate raised by the current allegations against the British state is easily clarified by ruling out what it is not about. The accusation is not that British agencies – unlike their US counterparts – directly inflicted torture. The crucial questions are not about whether the government should reject, in principle, intelligence that may have resulted from torture and questioning by foreign intelligence services without British knowledge. That question – also of substantial importance – is for another day.
The government does, however, need to answer questions about its current policy where torture has been conducted by someone else first – the Pakistani and Moroccan intelligence services appear to be favourites – and British agents have subsequently, directly or indirectly, put questions to the suspect...
Read entire article at Guardian (UK)
There is nothing new about British officials condemning the use of torture in unequivocal terms. "The illegality of torture in England has been a subject of boasting among Englishmen for more than five centuries," wrote Harvard law professor Lawrence Lowell in 1897. The rejection of torture as a sensible means of establishing guilt dates even further back, to at least the 13th century, when a distinction was recognised between "truth by revelation" (extracted by priests) and "truth by discovery" (based on rational principles).
But when it comes to the use of torture by foreigners, the story gets more complicated. When Edward II authorised the "interrogatory torture" of the Knights Templar in 1311, for example, following a request by the pope, he refused to do so with reference to English law. The Knights Templar were tortured anyway, and no doubt it made little difference to them which legal system had authorised the warrant. It is hard to avoid the conclusion that the medieval king was performing a delicate operation to preserve the upper moral hand of English law.
Methods of torture appear to have advanced remarkably little over the years, which makes the current allegations of British complicity with the pulling of fingernails, or the applying of razor blades to genitals (this time to terrorist suspects rather than renegade knights) all the more reminiscent of similar double standards 700 years ago.
The debate raised by the current allegations against the British state is easily clarified by ruling out what it is not about. The accusation is not that British agencies – unlike their US counterparts – directly inflicted torture. The crucial questions are not about whether the government should reject, in principle, intelligence that may have resulted from torture and questioning by foreign intelligence services without British knowledge. That question – also of substantial importance – is for another day.
The government does, however, need to answer questions about its current policy where torture has been conducted by someone else first – the Pakistani and Moroccan intelligence services appear to be favourites – and British agents have subsequently, directly or indirectly, put questions to the suspect...