This post is the third in our series on the National Association of Evangelicals' statement on torture. See also Part I and Part II of this critique.
The NAE document states that:
... the articles of the Geneva Convention and of the Universal Declaration on Human Rights are unambiguous:
Article 3:1c of the 3rd Geneva Convention (1949) says:
Persons taking no active part in hostilities ... shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria. To this end the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons: violence to life and person, in particular, humiliating and degrading treatment;
According to the Geneva Conventions, cruel, inhuman, or degrading treatment (CIDT), although falling short of torture, is still completely prohibited along with all forms of torture. "The overriding factor at the core of the prohibition of CIDT is the concept of [the] powerlessness of the victim."
This raises very difficult problems however for anyone serious about trying to survey the moral boundaries of the war against terrorism.
At first glance it would seem that the proscription of humiliating and degrading treatment is a prohibition that every nation, including ours, should respect. But in fact it's meaningless and dangerously restrictive. It is little more than a feel-good clause that allows the signatories to present themselves to the world as humane when in fact, if taken seriously, it's virtually impossible for any nation to abide by.
What determines whether an act is humiliating or degrading, after all, is more the individual's reaction to the act than the act itself. Most people would probably feel humiliated if yelled at or insulted. Many Muslims would feel humiliated if placed in a subordinate position to a woman. If we are to take the Geneva article seriously, which the NAE insists we do, then we should never allow a Muslim detainee to be interrogated by a woman if he would find that humiliating. Most of us would find prison both humiliating and degrading. Suppose the Muslim jihadis do as well. If so, 3:1c would, if strictly followed, forbid us to incarcerate terrorists. In other words, the sensibilities of the prisoner must determine what measures we can take against him, but this is an absurdly untenable position to place ourselves in.
Perhaps the NAE would reply that I exaggerate when I claim that 3:1c would effectively proscribe incarceration, but how could it not? Are some forms of humiliation, like imprisonment, acceptable to use against detainees but others not? If so, how are we to distinguish between acceptable and unacceptable forms of humiliation? Who decides what's humiliating for a detainee and what isn't? The interrogator? The secretary of defense? The detainee?
Even if the military would be arbitrarily permitted to "degrade" terrorists by confining them to a cell and depriving them of their freedom, there are lots of things they would not be allowed to get away with: Shouting at prisoners, for example, or questioning their manhood, long-term solitary confinement, the use of deception to get information, giving the prisoner Western food, shackling, limiting trips to the restroom to whatever number. In short, anything the prisoner found demeaning would be proscribed by a serious reading of the clause to which the NAE would have us fully submit.
Perhaps they would respond that we must not take 3:1c so literally, but if not then how do we ascertain how it should be understood and how can it be binding if we don't know what it means?
In lieu of some clear and meaningful definition of humiliating and degrading treatment, adherence to 3:1c places needless restrictions on our military authorities. Military and civil interrogators, afraid of crossing some invisible line that could get them hauled before a war crimes tribunal, will tend to do as little as possible to elicit life-saving information from terrorist prisoners. In an environment where our children's lives are at constant risk from the machinations of those who will stop at nothing to kill them, it would be irresponsible to insist that our interrogators adhere to such vague guidance as 3:1c offers, much less that something as vague as 3:1c could be morally binding.
The NAE document, by embracing the nebulous imperatives of 3:1c, renders itself irrelevant in the task of determining what, exactly, is morally permissable in attempting to extract life-saving information from a detainee and what is not.
RLC