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A video showing excessive force by the
Densus 88 counter terrorism unit as it searched for terrorist suspects in
Poso, Central Sulawesi, has prompted some religious leaders to demand the
dissolution of the unit. Confirmation by the National Commission on Human
Rights (Komnas HAM) of the authenticity of the video will intensify the
discussion on the handling of suspected terrorists.
This situation may prompt a debate over the (il)legality of the use of
torture in terrorism cases, in particular on how should we balance
preservation of national security and protection of individual’s rights
and fundamental freedom?
The prohibition of torture is a given under international law. Aside from
many international human rights and practices that clearly prohibit the
use of torture by the state, our national legal system has laws on
torture prohibition.
Legislation in 2009 on human rights in police duties categorically
prohibits torture.
Torture is not specified as a crime in its own right under Indonesia’s
criminal law. The 1984 Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (United Nations Convention
against Torture) defines torture in terms of three criteria: intensity
(infliction of severe mental or physical pain or suffering), intention
(intentional or deliberate infliction of the pain), and purposefulness
(pursuit of a specific purpose, such as obtaining information, punishment
or intimidation).
If we take a look at the European Court of Human Rights, the court
famously declared that torture should “attach
a special stigma to deliberate inhuman treatment causing very serious and
cruel suffering.”
In the case of Ireland versus United Kingdom for instance, the court
ruled that the minimum assessment of torture is, “in the nature of things, relative; it depends on all the
circumstances of the case, such as the duration of the treatment, its
physical or mental effects and, in some cases, the sex, age and state of
health of the victim, etc.”
Determining whether torture has taken place or not is not always simple.
Law enforcement certainly has discretionary authority to choose specific
coercive measures in handling a particular case. Given the fact that “uncertainty” is the ultimate
weapon of terror, proponents of torture mainly rely on consequentialist
arguments.
Such consequentialism, known as the “ticking
bomb scenario” argument, refers to a clear and present danger, which
may become a larger catastrophe if the legal institution fails to extract
information from a suspect.
As the catastrophe itself is essentially uncertain, the scenario simply
argues that torture could be necessary in terms of “catastrophe prevention”.
Such uncertainty, by and large, may affect the national criminal law in
coping with terror.
To a certain extent there is a need for the state to violate an
individual’s rights and fundamental freedom on the basis of preserving
national security as a bigger interest. But how should we balance in this
kind of conflict?
In the United States a four-part
balancing test between national security interests versus individual
freedom has been floated: first, the importance of the national interest
in question, second, the extent to which the results of the torture
advance the public interest, next the severity of the usurping of the
citizen’s rights, and finally the purpose of the intrusion as distinct
from traditional law enforcement. So despite combating terrorism
requiring extraordinary measures, there are human rights principles which
the state must comply with.
Nonetheless, it is widely understood that institutionalizing torture of
terrorists has detrimental consequences on civil, military and legal
institutions, making the costs higher than the benefits.
In other words, the institutionalization of torture cannot fulfill its
purpose as a low-cost life saver in the ticking-bomb argument.
In 1999, the Israeli High Court outlawed certain interrogation methods
employed by Israeli security forces, arguing that in a democracy not all
methods are acceptable, and just because a practice is employed by one’s
enemies does mean it can be legitimately undertaken by the state.
Although a democracy must often fight with one hand tied behind its back,
it nonetheless has the upper hand. Preserving the rule of law and
recognition of an individual’s liberty constitutes an important component
of national security.
With no scientific finding on the effectiveness of Densus 88’s
catastrophe prevention, an accountable, timely and transparent
antiterrorism mechanism is required in every activity conducted by the
detachment.
To conclude, national security is definitely a basis for legitimate
derogation of human rights.
The enforcement of our anti-terrorism policy ought to comply with
universal human rights values as mentioned by the law, so that the
conflict between the protection of human rights and the preservation of
national security can be reconciled. ●
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