Make torture legal, say law academics

May 27, 2005

Two Australian academics have generated a storm of controversy over claims that torture is "morally defensible" even if it causes the deaths of innocent people.

Mirko Bagaric, head of Deakin University's law school, and fellow law lecturer Julie Clarke argue that when many lives are in imminent danger, all forms of harm may be inflicted on a suspect whatever the effect on the individual.

In a commentary published this week in the University of San Francisco's Law Review journal, the authors cite Amnesty International reports of torture and ill-treatment in 132 countries. They claim that as international bans have not stopped torture, it should be regulated to allow greater public scrutiny.

Not Enough (Official) Torture in the World? argues that an unrealistic absolute ban on torture has driven it "beneath the radar of accountability". Legalisation in rare circumstances would reduce its application.

The Deakin paper has created outrage among staff, students and the media.

The two academics have received hate mail while some colleagues condemned their arguments. Justin Clemens, Deakin's director of psychoanalytic studies, called the claims "disgusting in the extreme, and symptomatic of a failure of contemporary legal ethics".

Last month, Professor Bagaric shared a platform at San Francisco with Janis Karpinski, the officer formerly in charge of Abu Ghraib who was demoted from general to colonel.

Former Prime Minister Malcolm Fraser said Professor Bagaric and Ms Clarke had failed "to recognise the real world" and that the moral argument against torture was overwhelming.

Professor Bagaric said that one reason he and Ms Clarke had submitted the paper to the Californian law journal was because Americans were "more open to new ideas on human rights".

"At my talk in the US, some people were for torture, some were against, but most people realised there were different sides of the argument. You didn't get the kind of emotive comments that I've had here in Australia, saying that this view is horrendous, unthinking and irresponsible," he said.

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