Yves Flückiger: The Ethical Foundations of the Absolute Prohibition of Torture

Madame Mayor of Geneva,
Mr. Representative of the High Commissioner for Human Rights,
Mr. President of OMCT,

On behalf of the University of Geneva, I would like first of all to assure you of the unconditional support of the institution that I have the honour to represent this evening for:

• The cause defended for many years and with so much conviction by the World Organisation Against Torture;
• And the campaign, “Nothing can justify torture under any circumstances”, whose Manifesto has been signed by our rector, Jean-Dominique Vassalli, on behalf of the University of Geneva.

This commitment is more necessary today than ever, in order to confront the calling into question, by a growing number of countries, of the absolute character of the prohibition of torture. In this regard, it is necessary to remember that many conventions, declarations and covenants have placed the principle of the absolute prohibition of torture firmly within international law. It is clearly stated, for example, in:

1. The Universal Declaration of Human Rights of 1948;
2. The International Covenant on Civil and Political Rights of 1966;
3. The Geneva Convention of 1949 relative to the Treatment of Prisoners of War
4. The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, adopted by the United Nations General Assembly on 9 December 1975;
5. The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted in 1984.

Despite its absolute prohibition, it is unfortunately necessary to acknowledge that torture has not been eradicated. On the contrary, we have witnessed over the last several years a revival, if not of practices effectively amounting to torture, then of political justifications for its use under certain conditions.

A certain current of opinion unfortunately lends its support to this idea, which seeks to relativise the prohibition of torture. This relativist deviation helps to legitimise the recourse to torture in the name of so-called collective interests, even if it is made subject to particular conditions such as the seriousness of the threats or the urgency of an immediate situation

In fact, this view is short-sighted. The classic case of the “time-bomb” (to torture a person to prevent a bomb from exploding and killing several people) is a real intellectual fraud, worthy of the dilemma posed by Dostoyevski in the famous dialogue of the brothers Karamazov: “Imagine that you are creating a fabric of human destiny with the object of making men happy in the end, giving them peace and rest at last, but that it was essential and inevitable to torture to death only one tiny creature – that baby....”

The relativist deviation is a short-sighted view because the prohibition of torture cannot be balanced against a supposed benefit for the collective or for humanity because these are founded on respect for the dignity of their individual members. No benefit can be derived when the raison d’être of the collective or of humanity is arbitrarily violated.

I am afraid that in this field ethics does not provide us with an adequate response. In fact, if one adopts a Weberian approach, the clash risks becoming focused on a debate between the ethics of conviction, which justify the absolute prohibition of torture, versus the ethics of responsibility, which tend towards a relativist view of the prohibition.

It is therefore necessary to insist on the predominance of international law in order to hammer home the idea that the prohibition of torture is absolute and is a peremptory norm of international law, which takes precedence over a treaty or any other reservation, should a conflict occur.

Human rights were put in place precisely to avoid arguments such as those being put forward by the relativists concerning torture, to avoid being the objects of utilitarian calculations and to avoid the common good being used to justify the violation of individual rights.

They were seen as inalienable values, so that nobody would be able to pass judgement on them, evaluate them or contextualise them.

The University of Geneva is convinced that the academic community can and must make its contribution towards strengthening the view that the prohibition of torture is absolute. It should do this through research and training by:

• establishing teaching in the field of human rights;
• providing professional training for future judges, lawyers and all persons responsible for their application.

This in particular is the mission that the University of Geneva wishes to take on in order to place human rights, as an inalienable and indisputable principle, at the centre of its concerns.

The drafting of conventions and other international instruments is of course a decisive step, but it is not enough to make these rules universally accepted and for all States to implement them. As Thomas MASARYK observed, “Even the best law has to be supported actively if it is not to go unheeded”.

The University of Geneva makes this maxim its own.

Thank you for your attention.