In defence of article 2.2 of the United Nations Convention Against Torture

Article 2.2 of the United Nations Convention Against Torture famously states that ‘No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.’ Unfortunately, since 2001 it has been directly or indirectly under attack. A great deal of literature (for example, Dershowitz, 2002; Dershowitz 2004; Allhoff 2005; Bagaric and Clarke 2007) has been written to challenge its validity. Such torture apologists accept that torture is prima facie wrong. However, apologists believe that state agents may torture in emergencies. In my paper, I defend the non-derogability of torture. I show that state torture is a skill with complex and unavoidable institutional requirements. These presuppose that torturers be trained in torture, that they have subjects on which to practice and improve their trade, along with medical, psychological and either formal or informal research support. Consequently, torture cannot be inflicted only in exceptional circumstances. If employed, it is inevitably normalized. Apologists are therefore on the horns of a dilemma. Either torture becomes generally justifiable and, for apologists, torture cannot be even prima facie wrong, or torture’s normalization is inconsistent with their commitment to its use only in emergency circumstances. In either event, the arguments in support of torture are invalid and Article 2.2 remains sound.