This chapter concludes Part IV, and examines practical aspects of applying criminal law defences to interrogators who torture terrorists. Under international law, states cannot ever justify torture and other ill-treatment — all ‘coercive’ interrogation methods are prohibited absolutely, and those used by the USA and Israel may and do constitute torture. Theoretically, an uncapped ‘lesser evil’ justificatory ‘defence of necessity’ (DoN) may very narrowly be available to torturers in certain domestic legal systems but is firmly rejected in others, as well as in international criminal law. The DoN and all other ex post models are impractical in that they require amateur torturers to face hardened terrorists in dire emergencies. In reality, the perceived recurrence of ‘ticking bomb’ and similar situations inevitably creates a priori systems of torture and impunity, as has happened in Israel. Realistically, democracies facing terrorism must choose between openly legalizing torture and never torturing (the author's recommended option).
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