being those in which shipwreck survivors have sacrificed one of their number so that others might survive. The rationalization is obvious and the arguments on either side have been forcefully marshalled by legal philosophers in many legal system (50).

Invariably, however, the result has been to subordinate either the value of the individual to that of the larger unit. However that analogy and its outcome fails to satisfy the divergent views of social philosophers on the subject, particularly when the competing interests are not only those of a small group of people but of a substantially larger one, or when the counterpart is the nebulous << public interest » or « public order ». Philosophically, one can say that the argument of justification in such cases rests on the doctrine of necessity in criminal law, even though the differences between philosophical schools of thought vary (51).

Aristotle distinguished between absolute and hypothetical necessity, the first referring to « that which is », and the latter to << that which is to be» (52).

The criminal law of most legal systems observes this distinction, conditioning its requirements in accordance with the fact that << human conduct implies decision, initiative, action and not mere reaction, but at the same time, it is always more or less influenced by external conditions. Hence: 'with regard to the things that are done from fear of greater evils,... it may be debated whether such actions are voluntary or involuntary' » (53) or justified by reason of the fact that they were not really freely willed. Necessity however, is always viewed as the product of exigent circumstances which were not created by the person claiming to have been the reason thereof (54). Equally required is the proposition that the actor had no other suitable choice. One cannot therefore see how the doctrine of necessity could be argued in justification of torture since the perpetrator of torture is not compelled by circumstances and cannot argue that an alternative to this violation is unavailable. It may however, be argued that the course of conduct of the perpetrator of torture was not only necessitated by circumstances but was compelled by the prior conduct of the victim of torture. The analogy here would be to the doctrine of coercion or duress (55). In this line of argument proponents of torture advance that it is a last resort method when all other means of preventing a greater harm to others have failed or are no longer available. The example offered is in the case where an explosive device was put in a place likely to kill and injure a significant number of people and no time is available to discover where it is hidden. This example is analogous to similar ones which had been offered in opposition to the prohibition of torturing prisoners of war under the Geneva Convention of August 12, 1949 for the protection of prisoners of war. Then the argument was that military necessity justified

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 Society 80-88 (1971).

(20) Id. at 87.

(21) Rescher, supra note 1 at 100.

(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 Untersu chungshaft 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).