The Bounds of Necessity

Posted: 9 Jul 2008  

Jens David Ohlin

Cornell University - School of Law

Date Written: May 2008

Abstract

The current controversy surrounding the legality of torture can only be understood through an analysis of the distinction between justified necessity and excused necessity. Although there may be strong prudential reasons for international criminal courts to declare torture unlawful under any circumstance, this would not necessarily prevent a court from recognizing that an excuse may apply. However, the hallmark of the necessity excuse should not be understood, as it is in German law, as an exception that only applies when a defendant breaks the law to save someone close to him. Rather, the basic principle of the excuse ought to be that the impending harm so weighs on the conscience of the defendant that his autonomy is impermissibly infringed by the necessity of the situation. Given that the prospect of massive casualties might compel a police or military official to engage in torture, the relationship between the defendant and the potential victims is irrelevant. All that matters is that the defendant is torn between, on the one hand, a deontological commitment to treat all suspects humanely, and on the other, a consequentialist concern with the deaths of many innocent victims. Commentators have wrongly assumed that these consequentialist concerns are only relevant for justified necessity. But if a court finds that the pull of the latter is so strong that to resist it would require an act of extreme moral courage, the culpability of the defendant is negated and the defence of excused necessity could be applied.

Suggested Citation

Ohlin, Jens David, The Bounds of Necessity (May 2008). Journal of International Criminal Justice, Vol. 6, Issue 2, pp. 289-308, 2008. Available at SSRN: https://ssrn.com/abstract=1157218 or http://dx.doi.org/mqn014

Jens David Ohlin (Contact Author)

Cornell University - School of Law ( email )

218 Myron Taylor Hall
Ithaca, NY 14853-4901
United States
(607) 255-0479 (Phone)
(607) 255-7193 (Fax)

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