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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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Part IV—Conclusions

Part IV—Conclusions

Chapter:
(p.339) 20 Part IV—Conclusions
Source:
Why Not Torture Terrorists?
Author(s):

Yuval Ginbar

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199540914.003.0020

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).

Keywords:   torture, legal aspects, practical aspects, defence of necessity, international law, human rights law, criminal law, ticking bomb situation, democracy, terrorism prevention

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