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Why Not Torture Terrorists?Moral, Practical, and Legal Aspects of the "Ticking Bomb" Justification for Torture$
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Yuval Ginbar

Print publication date: 2008

Print ISBN-13: 9780199540914

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199540914.001.0001

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The ‘Defence of Necessity’ as Legal Grounds for Torture

The ‘Defence of Necessity’ as Legal Grounds for Torture

(p.304) 19 The ‘Defence of Necessity’ as Legal Grounds for Torture
Why Not Torture Terrorists?

Yuval Ginbar

Oxford University Press

This chapter analyzes national and international legal materials to consider the viability of the ‘defence of necessity’ (DoN) as legal grounds for torturing in a ticking bomb situation. As the chapter explains, in order to provide such grounds the DoN would have to be shown as constituting, at least potentially, an uncapped ‘choice of evils’ justificatory defence. While there is a narrow theoretical scope for interpreting the DoN in England and the USA as having these characteristics, German and other legal systems ‘cap’ it, placing absolute restraints on ‘lesser evil’ calculations. Exempting torturing interrogators from criminal liability using the DoN violates states' international legal obligations to prevent and punish torture. In international criminal law, including the Rome Statute of the International Criminal Court, the ‘defence of necessity’ is conflated with that of duress, and its availability is closely linked to the unavailability of justifications for acts such as torture.

Keywords:   torture, legal aspects, international law, human rights law, international humanitarian law, defence of necessity, USA, UK, Germany, criminal law

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