May a State Torture Suspects to Save the Life of Innocents?
Posted: 9 Jul 2008
Date Written: May 2008
The old debate on the (Israeli) ticking bomb cases must be revisited in the light of the increasing threat by terrorist bombers and a recent German kidnapping case. Both cases may be combined as one model case to test whether the claim of a truly absolute prohibition of torture can really stand in extreme situations where the use of torture may be the only means to obtain the necessary information to prevent great(er) harm for innocents. Even in these situations the absolute prohibition against torture must not be relaxed ex ante and in abstracto given the unequivocal situation in international law and the negative policy implications a flexible approach would have. However, this does not necessarily entail the individual investigator's criminal responsibility ex post and in concreto given the conflicting duties to respect the (terrorist) suspect's human dignity and at the same time (actively) protect potential victims of this suspect's action he has to face. A just solution to this dilemma can only be found by distinguishing between, on the one hand, the state and the individual level, and on the other hand, between (non-) justification (wrongfulness) of the act of torture and excuse (personal blameworthiness) of the torturer. Thus, the investigator may be excused, but his conduct not justified, since this would convert the torture into something lawful or even socially acceptable and thus undermine the absoluteness of the conduct rule not to torture. This result is developed in the last part of this article taking into account the relevant provisions of the Israeli and German Penal Codes and the ICC Statute (Part 4). Before the Israeli and German cases can be compared (Part 1), some clarifications as to the status and rationale of the international prohibition of torture must be made (Part 2) and a model case , where preventive torture may be necessary should be considered (Part 3).
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