such acts, and that if the enemy could harm ones own soldiers and that harm could be averted by discovering certain pertinent facts then the use of torture was justified coercion. Both examples are false characterizations of the issue of competing and not conflicting values whose coexistance is not mutually exclusive. Two sets of reasons are advanced for this conclusion. One relates to military conflicts and is simply that of mutuality of humanitarian interests. What one side can do to its enemies so can the other, and none would be better off therefore. Consequently the preservation of the value of personal integrity lessens the dehumanization effect of conflict without impairing either side's interest. The other set of reasons applies to the non-military example. In addition to that of mutuality of interests and humanitarianism, it is the lack of reliability of the information derived from torture; the fact that its obtention by such means violates certain laws; that it violates the integrity of the legal process; and that a legal process whose integrity is tainted looses credibility and effectiveness; and the cumulative effect of these incidences erodes the integrity, credibility and viability of the political system which permits or tolerates such a practice.

The two sets of reasons advanced purposely avoid meeting head on the philosophical dilemma of conflicting values, because values such as individual integrity and public interest or public order should not be framed in conflicting terms. Rather they should be viewed as complementary values which are not mutually exclusive but coexistant. That their concurrent coexistance should be viewed from the more objective perspective of social policy rather than the subjective one of philosophical abstractions. Surely if the latter approach would be followed exclusively there would come a point in the analysis where the choice would be made on moral values which could either be difficult to explain or unconvincing to those whose differing values oppose it. The end result would be that the side with the greatest capacity to enforce its argument would prevail. Thus in addition, reliance on values in opposition to torture it is advisable to approach the question from a social policy perspective where values are one of the many considerations which can be taken into account to oppose torture as an undesirable and inadvantageous practice in addition to it being offensive to human and other social values. The following section undertakes such an analysis and offers insights into the validity of these arguments.

(1) Rescher, Introduction to Value Theory 122 (1969). (2) Rokeach, Beliefs, Attitudes and Values 124 (1970). (3) Id. at 160-61.

(4) Id. at 169.

3

(5) Id. at 161. See also, Murphy, « Ideological Interpretations of Human Rights », 21 De Paul L. Rev. 286 (1971).

(6) Id. at 135.

(7) R. Tisdale, Psychological Value Theory and Research: 1930-1960 168 (1961).

(8) Rokeach, supra note 2 at 128.

(9) Rescher, supra note 1 at 116.

(10) Festinger, A Theory of Cognitive Dissonance (1957).

(11) J. W. Brehm and A. R. Cohen, Explorations in Cognitive Dissonance 300 (1962).

(12) Rokeach, supra note 2 at 194.

(13) C. Rogers, « Toward a Modern Approach to Values: the Valuing Process in the Mature Person », 68 J. Abnorm. Soc. Psychol., 4-5 (1964). (14) Rescher, supra note 1 at 109.

(15) Id. at 133.

(16) A. DeWolfe, « Identification and Fear Decrease », 31 J. Consult. Psychol 259 (1967).

(17) R. West, « A Plea for a Rational Approach to the Problem of War and Peace», 16 U. Chi. L. Rev. 390, 393-94 (1948-49).

(18) Rescher, supra note 1 at 118.

(19) L. Longman, « Dionysus - Child of Tomorrow », 3 Youth and So

ciety 80-88 (1971).

(20) Id. at 87.

(21) Rescher, supra note 1 at 100.

tiona

(22) S. Stone, Legal Controls of International Conflict 35 (1974).

(23) Id. at 30.

(24) M. McDougal and F. Feliciano, Law and Minimum Public Order 121 (1961).

(25) See, e. g., P. Devlin, The Enforcement of Morals (1965), but see contra, H. L. A. Hart, Law, Liberty and Morality (1936), Hughes, « Morals and the Criminal Law » 71 Yale L. J. 662 (1962), and J. S. Mill, On Liberty (Everyman ed. 1859). See also, M. C. Bassiouni, Substantive Criminal Law 355 (1978).

((26) See, Bassiouni supra note 25 at 358.

(27) McDougal, Lasswell, and Chen, « Human Rights and World Public Order: A Framework for Policy-Oriented Inquiry », 63 Amer. J. Int'l L. 237, 239 (1969).

((28) Yearbook on Human Rights for 1966 437 (New York: United Nations, 1969).

(29) Piaget, The Moral Judgment of the Child (1948).

(30) L. Kohlberg and R. Kramer, « Continuities and Discontinuities in Childhood », in Personality and Socialization 336 (D. Heise, ed., 1972). (31) Id. at 337 338.

(32) Piaget, supra note 29 at 3.

(33) Kohlberg and Kramer, supra note 30 at 344-46.

(34) Id. at 338-340.

(35) Id. at 339.

(36) Id. at 334-335.

(37) Id. at 340.

(38) Id. at 340.

(39) The Preamble of the Charter of the United Nations says in part << we the People of the United Nations Determined... to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small... ». (40) M. Mead, Twentieth Century Faith, Hope and Survival (1969) at 31. (41) Stone, supra note 22 at xi.

(42) Kohlberg and Kramer, «Continuities and Discontinuities in Childhood Moral Development » at 344-45.

(43) M. McDougal, H. Lasswell, and S. Miller, The Interpretation of Agreements and World Public Order 13 (1967).

(44) Id. at 29.

(45) A. Toynbee, A Study of History (10 Vol. 1934-1954).

(46) See, R. David, Les Grands Systemes de Droit Contemporains (1973); J. Imbert, G. Sontel and M. Boulet-Santel, Histoire des Institutions et des Faits Sociaux (2 vols. 1957), and Bassiouni, « A Survey of the Major Criminal Justice Systems in the World », in Handbook of Criminology (D. Glaser ed., 1974).

(47) See, e. g., Bassiouni, supra note 46; H. Jescheck, Die Untersuchungshaft in Deutschen, Auslandischen und Internationlen Recht (1971) and G. O. W. Mueller and F. LePoole Griffiths, Comparative Criminal Procedure (1969). See also, Analytical Summary by United Nations Secretariat, U. N. Doc A/10158 (1976).

(48) Bassiouni, « The Privilege Against Self-Incrimination: A Historical Analysis and Contemporary Appraisal in Law in the United States of America in Social and Technological Revolution (J. Hazard and W. Wagner ed., 1974).

(48) Bassiouni, « The Privilege Against Self Incrimination: A Historical Analysis and Contemporary Appraisal », in Law in the United States of America in Social and Technological Revolution (J. Hazard and W. Wagner ed., 1974).

(49) See, e. g., M. C. Bassiouni, The Law of Dissent and Riots (1971). (50) U. S. v. Holmes, 26 Fed. Cas. 36 (E. D. Pa. 1842); Regina v. Dudley and Stevens, 14 Q. B. D. 273 (1884); H. Schadewaldt, L'odyssee du « Radeau de la Meduse» (1816), Graven, « 'L'Etat de Necessite' Justificatif des Naufrages », 2 Revue Internationale de Criminologie 19 (1969); and e. g., R. Merle et A. Vitu, Traite de Droit Criminel (1966), P. Bouzat et J. Pinatel, Traite de Droit Penal (1969); H. Jescheck, Lehrbuch das Strafrecht (1973); S. Renneberg, Strafrecht - Allgemeinerta! (1976).

(51) Quoted and discussed in J. Hall, General Principles of Criminal Law, (2d. ed. 1960) at 419 et. seq.

(52) Fuller, « The Case of the Speluncuian Explorers» 62 Harv. L. Rev. 616 (1949).

(53) O. W. Holmes, The Common Law (1887) at 48.

(54) M. C. Bassiouni, Substantive Criminal Law (1978) p. 459-61. (55) Id. at 458.

(56) See supra note 48, and Regina v. Dudley and Stevens, 14 Q. B. D. 273 (1884).

(57) Hall, supra note 49 at 426.

(58) People v. Lovercamp, 43 Cal. App. 3d 823, 118 Cal. Rptr. 110, 115 (1974).

SECTION IV

A policy oriented analysis

The prerequisite to formulation of social policy, based on maximization of values, is examination of the components of the phenomenon (1). The components of the contemporary practice of torture are discussed below.

Although, as shown in Section I, the military profession has not been historically strongly linked with the practice of torture, in recent decades military forces have been identified as frequently securing the custody of victims, intelligence tasks identifying individuals to be subjected to torture, and interrogating and inflicting suffering upon detainees, in time of war, in states of emergency, and even in periods of relative tranquillity (2). Military involvement in such activity may be traced in part to the current tendency in some parts of the world to respond to threats to the status quo by declaring states of seige or emergency in which the scope of powers relating to national security is greatly enlarged and armed forces become involved in a broad range of law enforcement activities (3).

2. Constabulary and Police Forces

Because taking and maintaining custody over an individual is necessary for torture, it is not surprising that law enforcement agencies, which routinely perform such functions, are often utilized in obtaining and holding torture victims. It follows that such forces would be utilized in the actual process of torture (4).

It is also clear that, where torture occurs without sanction of high authorities, torture is likely to occur in the hands of law enforcement forces, because they are the chief group having actual and immediate control over individuals. Although such police involvement classically occurs in a domestic context, it sometimes occurs in the context of war, where occupied territory is administered by non-military agencies of the occupying power (5).

3.- Other Perpetrators

Torture has apparently occurred in the hands of vigilante groups, terrorist and revolutionary groups and professional intelligence gathering or state security organizations (6), indicating that a military or quasi-military character is not a requirement for an agency to indulge in such practices, and that such practices may occur in the absence of official authority.

Moreover, specialists in a wide range of skills have been pressed into service by those groups practicing torture, including doctors and other medical personnel, technicians in electronics and other fields, and psychologists (7).

4.- Assessment

It is clear that the class of potential perpetrators of torture is without limit. Absent deterrent factors, almost any person or group could indulge in the practice if it were believed that some pragmatic goal would be attained by such conduct.

Contemporary accounts suggest that torture may be directed against a very wide or very narrow class of persons in varying

contexts.

1.- Political Categories

A group occupying a position of power may seek to maintain its status by directing various forms of coercion against persons of a hostile political viewpoint, or those suspected of holding such views through torture of such persons or of persons associated with them. Targeted political viewpoints may be those hostile to the entire institutional, political structure of society or merely ostile to a particular group. Targeted groups may be characterized by opposition to a particular policy or personality through established institutional means, through the media or mass demonstrations, or through campaigns of violence.

At times victims of torture are both politically hostile and guilty of specific criminal offenses such as espionage, conspiracy to commit murder or theft. That is, they may have acted out of political motivation and their actions may have furthered political goals, but some of their actions constitute classic common crimes. A frequent example is the terrorist engaged in a campaign to overthrow the existing political order. As in the case of political opponents, such targeted groups may in fact be coerced