Derogation from the Prohibition of Torture in the Case of Extreme Necessity
International Journal of Legal Studies and Research, Vol. 2, No. 1, pp. 35-49, March 2013
15 Pages Posted: 28 Apr 2013
Date Written: March 15, 2013
Abstract
Despite an absolute prohibition of torture, its practice is common in the fight against terrorism. This article investigates whether, in practice, this absolute prohibition is uncontested and whether states have the opportunity to derogate from this prohibition in the case of extreme necessity. To answer this question, causal theory – the theory behind the necessity defence – is elaborated on. Treaty law and customary law, both sources of international law, are also analysed. Many states use torture as an interrogation method, and both domestic and international law might provide for exclusion of criminal liability. These findings show that the absolute prohibition of torture is far from uncontested, which could indicate a paradigm shift away from a peremptory norm in international law.
Keywords: prohibition of torture, international public law, necessity defence, coercive interrogation, terrorism
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