Since the 1978 ruling of the European Court of Human Rights, significant progress has been made by the administration of the British army to reduce the unlawful and controversial practices, including the torture of the military prisoners. However, the reports of such practices continue to surface, with the highly publicized reports of the events in Camp Nama being the most recognizable. The following paper aims at exploring the progress made in recent decades and, more importantly, determining the reasons for the separate occurrences of violence. In particular, the research focuses on the moral motivations of the military in conducting tortures. The research is done primarily by reviewing the library and online sources to determine the current understanding of the phenomenon. Additional attention is paid to the definition and criteria of violence and suffering. A separate chapter gives a bird-eye view of the state of affairs.
The United Kingdom’s legal landscape and human rights record has been massively transformed owing to successive landmark legal decisions by the European Court of Human Rights (ECHR). It is crucial to mention that not all rulings have been readily accommodated by the sitting regimes. In some instances, the rulings have been rubbished (Ian 2011). Nonetheless, most of the court decisions have greatly reshaped the operations of various government organs in the wider United Kingdom and in particular the British army. As much as some cases of human torture are reported within the service, such incidents have dramatically reduced since the early 80s (Nepal officer trial over torture starts 2015). Definitely, a march of progress is evident in the British army in regards to upholding the dignity of human rights.
Those who are opposed to the case law developed from ECHR and which is actively used by courts when passing decisions argue that the mainstream legal fraternity is headed in the wrong direction since a new law-making body crafted from the ECHR’s case laws seems to be operational (Rothenberg 2007). On the other hand, the ECHR case is a living instrument according to those supporting it. Proponents assert that vital human rights changes can be realized in society from the ECHR case laws.
Torture Claims in Basra and Nama
In 2005, an investigation into torture claims by the British army began in Iraq. The lawyer of the nine Iraqis who was allegedly tortured by the British army complained about the opening of an independent and public inquiry into the allegations made by his clients (Iraqis react to British army torture reports-Iranian-Arabic TV 2005).
A spokesman for the Ministry of Defense said that there was no evidence of systematic or repeated abuses by members of the British military. The spokesman added that the Army commissioned two senior officers to examine the evidence before the martial courts in relation to cases of deliberate abuse in order to draw lessons and make recommendations to the chief of staff State General Michael Jackson (Ian 2011).
The alleged abuse took place at Camp Breadbasket, a base of the British army west of Basra. It serves as a warehouse for international food aid.
Three British soldiers accused of abuse against Iraqi civilians were sentenced in February 2005 to prison terms ranging from five to 24 months in jail. They were also suspended from the army by a British court-martial in Germany (Nepal officer trial over torture starts 2015). This scandal was revealed by a series of 22 photographs taken at Camp Breadbasket where soldiers were participating in an operation called “Ali Baba” launched by the British Army in May 2003 to prevent looting of humanitarian aid (Rothenberg 2007).
According to Shiner, the trial was a “farce” and it resulted in a version of events. Shiner also noted that the data of abuse supplied by Iraqi victims were hidden by the British judicial authorities in charge of the process, Shiner said.
The British army has been accused of war crimes in Iraq by different civil rights groups. For instance, a number of NGOs denounced the British government at the International Criminal Court in The Hague for responsibility in cases of torture, violence, and humiliation against prisoners in the Iraqi war. The then British Prime minister admitted to isolated cases of torture.
Two non-governmental organizations accused the British military of war crimes committed in Iraq between 2003 and 2008 (Iraqis react to British army torture reports – Iranian-Arabic TV 2005). The organizations filed a complaint against the British government before the International Criminal Court in The Hague as reported by the German newspapers.
The two NGOs recorded the results of questionnaires made with 109 former Iraqi prisoners. The organizations were the European Centre for Constitutional and Human Rights (ECCHR) based in Berlin and Lawyers for Public Interests, a law firm based in Birmingham.
In the legal document of 250 pages obtained by journalists from German newspapers, the lawyers demanded investigations into the actions of senior commanders of the British Army as well as ministers and secretaries of state at the time of the torture incidents. The document contained reports of 109 former prisoners from five different detention camps in Southeast Iraq. According to the organizations, the torture victims went through identical models of sexual and religious humiliation as well as physical violence. For NGOs, these actions proved that there was premeditated torture. According to the document, Iraqi prisoners were also threatened that they would be removed from the American Abu Ghraib prison that is well known for torture (Nepal officer trial over torture starts 2015).
In recent years, more than 400 former prisoners sought civil rights groups to denounce serious abuse and humiliation by British soldiers in Iraq. According to the two NGOs, the UK authorities failed to investigate real cases so far, particularly with regard to the high-ranking military officials (Ian 2011). In response to a question from the German and the NDR broadcaster, the British defense minister admitted Friday night that there were cases of abuse by the country’s troops in Iraq but only in smaller portions. The minister said that he was disappointed with the NGO lawyers because of the lawsuit filed before the ICC. He asserted that the lawsuit was unnecessary.
Eight years ago, the NGO lawyers tried to incriminate the British government for torture in Iraq. The ICC court at The Hague ended up closing the case on grounds that there was insufficient evidence.
Torture Within the British Troops
During the 19th century, severe corporal punishments were meted out on the British armed soldiers as part of instilling discipline among them (Phillips 2010). The punishments used to be too severe and humiliating because they were conducted in the full glare of the public. Irrespective of the magnitude of the mistake committed by a soldier, the punishment was equally severe so that other disgruntled members of the team could learn from colleagues. However, intensive public campaigns against the practice led to its abolition. Some historians posit that the barbaric cultural history of how British soldiers were inhumanely treated led to the adoption of the habit even when handling civilians. Military torture of civilians is not uncommon across the globe (Atkinson 2015). It is only the intensity that differs. In particular, the British army has been implicated severally on matters related to torture. Harassing victims to an extent of causing real physical and/or mental harm is the negative attribute of the British military. The latter is common especially when the military team is dispatched for overseas missions (Ian 2011).
European Convention on Human Rights and the Experience of the European Human Rights Court
The European Convention on Human Rights created in 1950 through the Treaty of Rome requires that no one should be subjected to torture and penalties or inhuman and degrading treatment (Iraqis react to British army torture reports- Iranian-Arabic TV 2005). The prohibition is the absolute termination of improper character handling. The resolution aimed to address the gross violation of human rights. It cannot be a subject of restriction, limitation, or reservation by the national statutes (Haslam 2006).
The European Court of Human Rights (ECHR) was established in 1959 by the European Convention on Human Rights and is based in Strasbourg, France. It’s, responsible for adjudicating cases involving a violation of human rights enshrined in the Convention, among them contained in article 3. It relates to the prohibition of torture and other inhuman and degrading treatment or punishment of alleged law offenders. The decisions are binding to States under their jurisdiction.
In the Prosecutor v. Furundzija case, the International Criminal Court was set up to try crimes committed during the dictatorship in the former Yugoslavian leader. The court analyzed the relevance of the prohibition of torture because of the importance of the values it protects. The values included integrity, physical and moral power to punish the state. In this decision, the Court stated the aspect of prohibition consists of a peremptory norm of modern international law and standards superior to domestic law and the general common law. Thus, the rules prohibiting torture occupy the highest place in international law thereby depriving legitimacy of international law or proper functioning of state organs such as the legislative, executive, and judiciary. If these institutions are hindered from working independently, the state of human rights can also be jeopardized (Beu & Buckley 2004).
It should be noted that the prohibition of torture prescribed in human rights treaties imposes an absolute right that can never be derogated even in case of emergency contrary to the case of torture inflicted on victims by the British army. This is connected to the fact the prohibition of torture is a peremptory norm.
Countries that abide by international law usually embrace the above legal provision in spite of its extensive nature. In any case, countries that subscribe to the set laws are supposed to either extradite or expel an individual from one country to another if there is sufficient evidence that they can be subjected to physical or mental harm in form of torture.
These provisions of the treaties impose on States an obligation to prohibit and punish torture and also to prevent its agents from engaging in acts of torture.
International human rights law deals with the responsibilities of states more than with individual criminal responsibility. Hence, torture is prohibited as a crime to be punished by the law. Furthermore, all States parties where treaties have been ratified have a legal cogent force, jurisdiction to investigate, prosecute and punish the guilty.
The existence of a body with general laws and treaties prohibiting torture shows that the international community is aware of the importance of criminalizing this abhorrent phenomenon. Since the 1978 ruling, the international community has decided to suppress any manifestation of torture operating at both the inter-state level and at the individual level (Haslam 2006). However, the case of the British army in recent years leaves a lot to be desired as far the torture clause is concerned.
Currently, there is a universal repulsion to police or military torture. This repulsion as well as the importance of the State’s decision to eradicate torture has led to a number of treaties and laws on torture that has acquired a particular status in the international legal system. The prohibition of torture imposes enforceable obligations on all members of the international community.
The other major tool of the general prohibition of torture practice is linked to a hierarchy of laws in the international normative order (Potter 2016). Because of the importance of the values that protect this principle, the latter has become a peremptory norm. In other words, it is a norm that enjoys a hierarchical superiority in international law, and therefore superior to the other common standards or those arising from treaties. The most important consequence of this hierarchical superiority is that the principle in question cannot be derogated from by States through international treaties or existing internal rules because they do not have the same legal force. Whichever the case, the state of human rights violation since the 1978 ruling has tremendously decreased (Atkinson 2015).
Clearly, the nature of the above prohibition against torture articulates the notion that the prohibition has become the most important standard of the international community as can be seen in the case of the involved Prosecutor and Furundzija.
Regarding the jurisprudential study of cases tried by the ECHR involving a violation of Article 3 of the Convention, it appears that in addition to the competence to resolve disputes, the Court developed an important hermeneutic role in that it interpreted and gave meaning to the terms used in the legal terms such as “torture”, “inhuman or degrading punishment” and “inhuman or degrading treatment” In this sense, it is important to note the ECHR judge observed that the United Kingdom dissented from the majority opinion of the judges. It must be noted that the resonance of the ECHR decisions beyond the European territorial limit has been exerting influence on ordinary courts and other specialized human rights courts. In the case between Soering and the United Kingdom, the latter finding remains even more evident. In this case, the court required the US safeguards to allow the extradition of Soering. It remained unclear whether this sentence to death was cruel according to the European legal standards. In the first major trial on the subject, the court imposed criteria that guided the subsequent trials of the criminal justice system. They are essentially two criteria namely pain intensity criteria and criteria for assessment of the case.
The criterion for Intensity of Suffering
The ECHR uses the suffering intensity criterion in two stages. The first criterion is when the minimum analysis of suffering in a given situation is necessary or when conduct constitutes a violation of article 3 of the Convention. The second criterion is when the differentiation of the three legal categories contains terminologies such as “torture, inhuman and degrading treatment” On several occasions, the ECHR noted that not all types of abuse violate Article 3 of the Convention but only those that reach a certain level of severity and inflicted suffering. The jurisprudential analysis of the term “minimum severity” is variable in the time given that the Court analyzes and interprets the Convention o according to the ever-new (and changing) standards of human dignity.
From the moment that the ECHR considers that there was a violation of Article 3 of the Convention, it is necessary to frame the conduct within one of the three legal categories. It is vital to mention that ECHR (Northern Ireland v. United Kingdom case) also signed an understanding based on pain intensity criterion but using it as a parameter for the definition of other concepts derived from the term “inhuman treatment” (Boucher 2015).
To the ECHR, inhuman treatment entails all forms of intentional or accidental human degradation that cause humiliation and dehumanization to a person with blatant disregard for human dignity. The degrading treatment does not reach this degree of dehumanization even though it causes humiliation to the person. As it stands now, ECHR has reserved the term “degrading” only to prison or remand conditions (Farrell 2008). If any abuse is committed by the military police or any other state agent, the Court is already positioned to identify the conduct as an “inhuman treatment” since in these situations; there is a strong power-submission relationship and the trend of disrespect for the dignity of the person held in custody (Phillips 2010).
Finally, ECHR reserves the term “torture” only for the most serious acts that were intentionally inflicted on a person (Torture claims mount against British Army 2010). Such acts are usually premeditated with a particular motive or purpose in mind that may constitute elements of torture. This trend is common with military torture to victims in order to obtain certain information from them. However, in the jurisprudential study of ECHR, the court has been checking and validating certain changes in order to qualify torture as an act that inflicts great suffering even without a specific purpose.
There are large reserves and criticism of the use of this criterion by the court because as much as it can be argued, there is a large subjective component that seeks to measure the “pain” or “suffering” subjected to a person. Medical, sociological, and anthropological studies confirm that sensitivity to pain varies from person to person. Even if the court uses a parameter of a normal man, the same court may still be limited to the cultural understanding of a person being subjected to pain and torture. Although it appears insufficient, this is currently the most important criterion that ECHR uses to describe a behavior or situation as torture, inhuman or degrading treatment. The criterion was gradually adopted since the 1978 court ruling in the United Kingdom.
The criterion of Relative Appreciation
In almost all trials involving article 3 of the Convention since 1978, ECHR remarks that in addition to the criterion of the intensity of suffering, the Court always examines the variants of each case to verify the seriousness of the violation at hand.
For example, in the emblematic and controversial case of Soering v. the United Kingdom, the Court in its decision observed the aspect of age and made strong references to medical certificates. It indicated the fragility of the mental health of the applicant (Grant 2013).
This has been the keynote of ECHR decisions instead of creating a standard rule on a case based on handmade work. The court often seeks to apply the concepts and case variants in order to verify the quantum of the suffering of a particular person who has been subjected to a particular situation. Thus, age, health status, gender, and duration of the violation are decisive points for qualifying violation by ECHR (Farrell 2008).
Deprivation of Freedom
Within Europe, solitary confinement is not a punishment or cruel treatment. However, ECHR has imposed certain limitations and special attention as the duration and isolation conditions as the US experience (Mellott et al 2012). In the Mathew v. the Netherlands case, ECHR unanimously ruled that the isolation to which the applicant was subjected constituted inhuman treatment, the duration of their isolation imposed as punishment for aggression that the applicant has a prison officer (Operation Banner Lowers the Flag 2008). In the Ramirez Sanchez v. France case, the applicant alleged violation of Article 3 when serving time in prison in solitary confinement because of the murder of two policemen in terrorist attacks on French revolutionary groups (Atkinson 2015).
It was the ECHR through the now-defunct European Committee for Human Rights that first presented the nebulous distinction between torture and other inhuman and degrading treatment at the international level by the judgment of the Greek case of 1969 (Boucher 2015). On this occasion, ECHR conceptualized torture as an aggravated form of the inhuman treatment inflicted with a specific motivation. When gross physical or emotional suffering is caused to an individual, it amounts to inhuman treatment. That is exactly what happened in the above case. Any form of humiliation amounts to degrading treatment according to the European court. This can be compounded by the fact that a person is compelled to act in a certain way contrary to his or her own will (Haslam & Reicher 2014).
In this judgment, the Court imposed suffering intensity criteria as a differentiating criterion of the three types of conduct (torture, inhuman, degrading treatment) which had to be analyzed in two ways:
The quantity of suffering is necessary for the conduct constituting a breach of article 3 of the Convention
The severity of the quantity of suffering must constitute torture.
The Northern Ireland v. the United Kingdom case of 1978 definitely punctuates the suffering intensity criteria as the criterion that distinguishes the practice of torture and other inhuman and degrading treatment. This case was one of the largest cases ever brought before ECHR (Beu & Buckley 2004).
Prohibited Interrogation Techniques
Northern Ireland accused the UK of violating article 3 of the European Convention on Human Rights in various procedures of extrajudicial detention of January 1971 to December 1975 when the UK was used to combat one of the deepest political crises in Northern Ireland with several terrorist attacks by the IRA, great tension between Catholics and Protestants that left more than 1,000 people killed, over 11,500 injured and a deep sense of social insecurity (Melson 2011). The emergency regime imposed limitations on individual guarantees and provided the possibility of extra-judicial detention and five interrogation techniques (Baird & Zelin 2009).
There were two major categories of torture claims. The first concerned the physical violence used against detainees. The second concerned the five interrogation techniques that included sleep deprivation, use of noise with disorientation purposes, in addition to forcing detainees to stay many hours standing, and a “deep” interrogation which was some form of long and aggressive emotional and physical torture (Farrell 2008).
First, the case was examined by the European Committee for Human Rights. On this occasion, the Court understood that the first category of claims did not constitute torture but it was only inhuman. However, the five interrogation techniques constituted torture (Haslam & Reicher 2014). The process was then brought to trial before ECHR. Notwithstanding the understanding set by the Commission, the Court found that the use of the five interrogation techniques constituted inhuman treatment but had not reached the level of “severe suffering” necessary to constitute torture (Boucher 2015). The decision was not unanimous since 16 judges understood that the interrogation techniques constituted inhuman treatment while four judges noted that the case was pure torture. One judge argued that the techniques did not violate article 3 of ECHR.
Behavioral Intimidation and Fear
The main aim of using torture techniques against suspects is to obtain hidden information. The techniques are not used alone. The officers who execute torture to the alleged suspect also premeditate over their actions several hours before doing it. Most of the tortured individuals often experience the physical and emotional pain of intense nature. The latter scenario is common when the suspected person is being interrogated (Fox-Godden 2016). The interrogation strategies were initially used to gather information from suspects. Nonetheless, it gradually transformed into torture tactics by military officers. Most of the key tents of article 3 were violated while victims were left in a state of despair, anguish, and suffering. (Release of the Aitken report-an investigation into cases of abuse and unlawful killing in Iraq in 2003 and 2004 2008).
In these two points, the Court had the same opinion as to the Commission (Beu & Buckley 2004). So as to establish if the five techniques amount to acts of torture, it is vital for the legal system to differentiate between aspects of degrading treatment and the provisions of article three. In the opinion of the court, it is vital to mention that the degree of suffering an individual goes through during the process of torture is the main cause of concern (French 2001). The court does not simply demean the function and roles of the criminal justice system. However, it argues that inhuman degrading treatment and physical or mental torture must be clearly distinguished (Three-year inquiry will clear Army of torture 2011).
Further, it is also what appears to be inferred from Article 1 of Resolution 3452 that was adopted by the United Nations General Assembly on December 9, 1975 (Melson 2011).
After using the five techniques for some time, it came into the limelight they encouraged inhuman treatment. Applying the techniques simultaneously left the victim in a more horrible state of being (Beu & Buckley 2004). ECHR imposed a major constraint to the amount of behavior that could be qualified as torture owing to this decision.
The case of Aksoy v. Turkey marked the first individual allegation of torture brought to ECHR. The applicant had ample supporting documentation that he suffered violence during the period he was held (Pilger 2008). During the interrogation process, he was subjected to severe violence which consisted of an uninterrupted sequence of beatings and the Palestinian hanging (whereby the detainee is naked and his hands tied behind and hanging pole (Ireland accuses the British Army of torture during the Troubles 2014). He claimed that as a result of torture, he lost the movements of his arms and hands.
According to settled case law in this regard and the criteria of severity and purpose of cruel treatment, the Court concluded that the mistreatment constituted torture in accordance to Article 3 of the Convention and therefore a violation of Article 3 (Beu & Buckley 2004). Following the entry of new countries into the EU together with the restriction of the current context of the rights due to the war on terror in Europe, it is possible that ECHR will still be often invoked to rule on the scope of the prohibition of subjecting a person to torture. So far, ECHR has positioned itself to understand two major categories of torture:
The concept was defined by it in the case of Northern Ireland v. the United Kingdom and later codified by the United Nations Convention (Hayashi 2013). The newest decisions as in the Nevmerzhitsky v. Ukraine case. ECHR has qualified prison behaviors as torture situations that cause great suffering even if they lack the element of purpose (Duncan 2009).
Motivation and Moral Aspects of Torture
Over the years, a number of theories and suggestions have emerged attempting to explain the phenomenon of inhumane torture practices in the military, tackling the issue from a social, administrative, and psychological perspective. Some of the theories offer an apologetic approach, highlighting the benefits of the practice and attributing the “necessary evil” status to it. The majority, however, regards the issue as unacceptable and point to the flaws of the system allowing the torture to occur, while still others suggest the intrinsic properties of the human psyche as a reason for it.
Military Necessity Theory
The most popular way of justifying the excessive amounts of violence during wartime is the so-called “military necessity.” It is not uncommon for legislation of any given country to treat the military law as a separate entity, usually by legalizing the practices which would be unacceptable for the established standards. Such a shift in legislation has happened in the US during the Vietnam conflict and has led to the emergence of several laws which were later deemed unconstitutional (Mazur 2010). However, the most notable example was the introduction of the Kriegsraison, which would essentially “justify any militarily expedient measure, including a contravention of otherwise defined laws of armed conflict” (Horton 2006, p. 580). In other words, the military necessity as understood by Kriegsraison was an attempt to create an ultimate exception to any rule as long as it could be justified as beneficial to the military. Such an approach would eventually result in the abuse of power and unnecessary violence, an assertion confirmed by the events in Basra and Camp Nama.
It should be noted that modern-day theorists offer an alternative understanding of the military necessity theory: not as an excuse to commit the otherwise unacceptable action but rather as a framework to exclude the practices not necessary for the success of the strategy (Myers 2006). Besides, while torture is thought by its proponents to be an effective measure of gathering data from the party unwilling to cooperate, evidence exists that it actually disrupts the intelligence process in several ways: it leads to false confessions, disrupts effective communication with the local population, and rarely produces any meaningful data beyond that obtainable on the level of established legal ways of interrogation (Phillips 2010). Unfortunately, despite the obvious drawbacks of torture, it is still incorrectly perceived as a military necessity, which results in two effects: giving the military personnel the sense of legal justification to the committed atrocities and empowering them with the moral and ethical reason to do it.
Behavioral Intimidation Theory
The behavioral intimidation theory is is another way of explaining the motivation of the torturers in the British military. The theory holds that the use of torture will initiate behavioral compliance among its subjects. Such obedience usually takes the form of a public confession. However, the theory has certain limitations, with only some of them strengthening its position as the motivation behind the use by the British army. First, the theory suggests that torture is effective only when applied selectively, while the unsystematic application yields no results (Rejali 2009). In part this is consistent with the picture reported by the soldiers from the Camp Nama and Camp Breadbasket: the selected prisoners were regularly exposed to the same techniques (). However, the uncontrolled nature of the violence during the described procedures suggests one of the two possibilities: either the soldiers were not satisfied with the results of the interrogation (which is understandable given the earlier notion of the limited efficiency of the practice) and repeated the procedure in hope of the improved results, or additional factors, e.g. the poor control of the situation, was present (which is consistent with the evidence suggesting the excessive, rather than necessary, level of humiliation and violence). The behavioral intimidation theory confirms the earlier assumption regarding the quality and reliability of data obtained through the torture: the compliance is often superficial and is aimed at seeking the incentive (in this case – the cease of violence) rather than cooperating. This, coupled with the stressful environment, results in extremely inaccurate and otherwise unreliable data (Rejali 2009). Thus, while the theory can be used to explain the actions of the British troops, it does not justify their actions in any way – rather, it shows the discrepancies between the expectations of the torturers and the actual outcomes.
While the initial conscious justification for the inhumane practices may be explained by the theories detailed above, the ongoing tortures which exhibit a gradually raising level of violence demand further explanation. They may be explained at least in part by the dehumanization theory. The theory suggests that once the individual or group of individuals are deemed as non-humans, whether by ideological reasons or through the setting not associated with human characteristics, they stop being treated as human beings. This may take various forms, from failing to recognize their uniqueness as human beings to treating them as inanimate objects resembling humans. While the former at its worst may be viewed as offensive, the latter is often accompanied by unfair treatment and inhumane practices, e.g. violence and deliberate humiliation (Haslam & Loughnan 2014). In the case of military camps where the torturing took place, the reports often indicate the inappropriate conditions where the prisoners were held, the lack of sanitary conditions, and nutrition. While initially this was done to intimidate the prisoners, it may have resulted in the change of attitude towards them consistent with the dehumanization theory. In fact, the theory suggests that the conditions and treatment of the inmates create the vicious circle, where the initial inappropriate treatment leads to the perception of the prisoners as less than humans, which in turn prompts the soldiers to create even harsher conditions and elaborate the more violent tortures, aggravating the situation with time (Haslam & Loughnan 2014). It should be noted that the dehumanization theory does not require violent treatment per se, but the hostility towards the enemy present during the conflict and reinforced by the military culture virtually guarantees that it will result in active mistreatment of the prisoners.
Military Culture and the Role of the Military Officers
The military culture with its strict discipline and the necessity to obey orders may be in part responsible for the persistence of the unethical practices in the British military. First, some evidence exists that the excessive formalization of the organization hampers the ability to take responsibility and make decisions among the soldiers (Wolfendale 2007). This, in effect, means that individuals are accepting orders without considering their legitimacy or legal validity. Second, the military culture deliberately promotes the unreflective execution of orders by higher ranks, which certainly benefits the efficiency of the operations and excludes the human factor (the lower ranks certainly have no bird-eye view of the mission, so their interpretation of the situation is potentially flawed), but at the same time decreases flexibility and gives way to the unlawful activities (Wolfendale 2007). Coupled with the misinterpretation of the military necessity discussed above, it creates a setting where the crimes are performed without the slightest hesitation. Of even greater concern is the fact that the military forces are frequently involved in operations outside the immediate war zone, where such culture is even less relevant while at the same time presenting more possibilities for unethical or unlawful actions. Finally, the military culture in its fundamental form does not require the person to have even the basic grasp of the military law or ethics. Both aspects are often (but not always) included in the training programs for the office staff, but neither of the elements is incorporated in the training program – instead, it remains a separate entity which is often contradicted by the principles taught in other areas (Wolfendale 2007). As a result, the officers rarely consider either as the viable driving force behind their actions, and lower ranks are left with the comprehension of the issue they may or may not have obtained outside their military career. Naturally, under such conditions even if the soldiers reflect on the order before executing it, the conclusion they may reach will be effectively suppressed by the military culture that does not tolerate disobedience. The approach of “creative compliance” was offered as a way to circumvent this succession by Mark Osiel (1999). According to this approach, the orders need to be reconsidered and reinterpreted once it becomes clear that the initial instructions are flawed because of the incorrect information or are otherwise inadequate (Osiel 1999). While the initial focus of creative compliance is on the efficiency of operations, both the legal and the ethical sides also need to be considered. Unfortunately, currently, the British army exhibits no observable effort towards making the justifiable disobedience a lawful practice, let alone encouraging it. It is thus likely that in its current state the British military culture is at least partially responsible for the tortures which surfaced in recent years.
The Crime of Obedience
The issue of mindless and unreflective compliance with the orders of higher ranks embedded in the military culture opens up the possibility for what is termed “the crime of obedience” (Wolfendale 2007). While the dehumanization theory mostly accounts for sporadic and uncontrolled actions of individuals (even though the effect is observed in the whole community), the reports of the prisoner treatment in Camp Nama show clear involvement of higher ranks: the prisoners brought in by the British were registered as captured by the American soldier, who was always present in the squad (Cobain, 2013). This step, according to the legal experts, was conducted to prevent the obligation of returning the prisoners once evidence emerges of their improper treatment. In a sense, the British military was safeguarding the possibility to torture the enemy soldiers indefinitely. Arguably, this could not have been done without the authorization and encouragement from the highest officials. Such authorization was defined as one of three essential components necessary for the moral inhibition which permitted the soldiers (or other subordinates) to permit a crime of obedience (Post & Panis 2011). The other two necessary criteria are the process of dehumanization described above and the routinization, resulting from the systematic application of unlawful practices on a regular basis (Post & Panis 2011). The three factors combined make the most inhumane practices easy to execute as they remove the factor of personal responsibility. Another important factor for the crime of obedience is the setting of hostility and enmity, the division between “us” and “them.” The effect was prominently demonstrated by Philip Zimbardo in his famous experiment, now known as “The Stanford Prison Experiment” (Zimbardo 2007). According to the researcher, the crimes of obedience committed in the military camps are triggered by the power of authority given to certain individuals (Zimbardo 2007). In essence, once the soldiers were given permission to use the unlawful interrogation techniques, they felt empowered to expand their area of influence and resort to gradually more inhumane and violent methods. Zimbardo also points to the connection between the authority distribution and the obedience effect, which is consistent with the suggestion that the British military was at least partially influenced by what he terms “the Lucifer Effect” (Zimbardo 2007). Finally, the data obtained from the experiment, as well as the basic premise of its partisan nature suggests that obedience is more prominent if within the more strict vertical hierarchies. As the military organizations are the brightest examples of such structures, it is expected that the crime of obedience would be present within it, unless proper measures (such as those suggested by Osiel and detailed in the previous chapter) are taken to prevent or minimize it.
The crime of obedience visibly intersects with the current fundamental principles of military culture, as it requires and benefits from authorization, is consistent with the military necessity theory, which alleviates the responsibility, and requires dehumanization as a part of the process. We can thus safely assume that all of the mentioned theories and factors intertwine, are mutually reinforced, and should be viewed in conjuncture rather than in separation. Once the individual motivations, such as dehumanization and the responsibility redistribution, factor in the process of unreflective execution of orders and are justified by the exploitative interpretation of the military necessity theory and reinforced by the behavioral intimidation theory, the system starts supporting itself by the complex interaction and interdependence of the mentioned factors.
Analysis of the Current State of Torture within the British Military
The established case law of ECHR distinguishes the level of suffering between inhuman treatment and degrading treatment, especially in light of torture claims by the British army (Grant 2013). The distinction goes back to the case of Northern Ireland v. United Kingdom in which ECHR held that inhuman treatment assumes more severe suffering and therefore covers the degrading treatment.
Historically, one sees that in this field, the Court has significantly expanded the size of the ban to include behaviors that violate article 3. In addition, behaviors and situations that did not constitute inhuman or degrading treatment in the first trial have been included (Ireland accuses British Army of torture during the Troubles 2014). Hence, even though the British army has been adversely mentioned in human rights abuses, high standards towards respect for human rights and dignity are evident. Besides, there is a greater rejection of behaviors or situations that dehumanize individuals who are under state custody (Parry 2010).
By the year 2000, ECHR worked on the concept of inhuman and degrading treatment due to the active or passive behavior of police or prison officers (Milanovic 2011). In recent trials, however, the Court has positioned itself in the sense that constitutes inhuman and degrading treatment of certain prison conditions such as overcrowding and lack of appropriate hygienic conditions (Pilger 2004). This relates to public health. Torture claims in the British army have subsided significantly over the last five years, especially in light of the fact that Britain has been sending back its troops home from Iraq (Fiske, Harris & Amy 2004).
New ECHR decisions also point to the possibility of a legal framework of violation of Article 3 (Haslam 2015). This entails the living conditions of certain population segments or ethnic groups who are highly likely to be excluded from state rights and guarantees. Such groups may also suffer major police and administrative violence outside the prison and any state prosecution. The decisions ruled in CPT reports such as the European Committee for the Prevention of Torture, are innovative in theme and have uplifted the working standard of the British army (Farrell 2008).
The European Commission for the Prevention of Torture (ECPT) reserves the terms of inhuman or degrading treatment in describing aspects accompanying the detention regime. It can be recalled that torture to victims ranges from inflicting physical pain to availing poor living conditions to victims. With regards to the living conditions of prisoners, it is vital to mention that the British army has been the frontline in improving the standards of physical facilities used by prisoners in Iraq (Carrick, Connelly & Robinson 2009).
Profound reforms in the British army have been made possible by the legal reform agenda of ECHR case laws (Marcu, Lyons & Hegarty 2007). ECHR has consolidated the judgment that poor prison conditions may constitute degrading treatment. For example, in the Peers v. Greece case, ECHR observed that there was a violation of Article 3 of the Convention due to poor ventilation and lighting alongside the dimensions of the cell that was severely degrading due to lack of adequate space. In the Kalashnikov v. Russia and Mayzit v. Russia cases, ECHR unanimously agreed that it was a violation of article 3 to encourage overcrowding, poor sanitary conditions, and poor ventilation as well as lighting (Ireland accuses British Army of torture during the Troubles 2014).
Traditionally, enhancing the rules on expulsion, extradition, and deportation of foreigners is the responsibility of each nation or state submitted to the European System on Human Rights Protection (Baird & Zelin 2009). However, ECHR in an established case law imposed a single limitation to these procedures. According to the broad interpretation of article 3 of the Convention, no one can be expelled if, in the recipient country, there is a great risk that the person will be subjected to torture, any undesirable treatment, or inhuman and degrading punishment.
To recap, the British army has indeed made major strides since the 1978 European Court of Human Rights (ECHR) ruling. There are myriads of case laws emanating from ECHR that have been used for passing crucial judgments both within Britain and overseas cases involving British nationals. In particular, the prohibited interrogative methods such as starving victims are no longer acceptable for use even within the British army. Human rights are at the core of operations of the British army. However, while the progress is noticeable on a broader scale and the policies of the British army are clearly aimed at the minimization of controversial techniques, certain cases, such as those in Camp Nama and in Basra, continue to surface. Several reasons can be outlined to explain these discrepancies. Aside from the gaps and bypasses still present in the definitions of the ECHR, the tortures conducted by the British military are at least partially explained by the inadequacies in the current military culture that endorses the irresponsible and unquestioning following of orders regardless of their legal status. The situation is further aggravated by the misinterpretation of the military necessity concept, and is complicated by the presence of several psychological and social factors, collectively known as “the crime of obedience.” Such factors as the dehumanization process, the over-reliance on authority, and the routinization of the process, common for the behavioral intimidation theory, serve to inhibit the moral principles and create the climate conducive to the proliferation of the inhumane practices. Thus, while the review has demonstrated the progress in eliminating the mentioned practices, the system is not likely to be successful without the changes made to the current military culture and the training of the personnel.
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