NO ABSOLUTE RECOURSE IN NECESSITY FOR THE INDIVIDUAL WHO RESORTS TO PREVENTIVE TORTURE IN INTERNATIONAL CRIMINAL LAW

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NO ABSOLUTE RECOURSE IN NECESSITY FOR THE INDIVIDUAL WHO RESORTS TO

PREVENTIVE TORTURE IN INTERNATIONAL CRIMINAL LAW Abstract:

...The Convention Against Torture (CAT) holds an absolute prohibition on torture against States. Under Customary Law, this prohibition is binding on all States, regardless of ratification of any of the International Human Rights treaties. These foundations provide the framework for the ultimate argument that the defence of necessity should be unavailable in instances of preventive torture by the individual investigator. How we effectively approach torture then, is governed by a fitting approach to the conflict between how the subject matter is viewed under International Human Rights Law, against the availability of the defence for the individual under International Criminal Law. Ostensibly, the availability of necessity musters some consequentialist sense. But such a conclusion cannot be made without recalling the absolute prohibition. Although the prohibition on States does not inherently translate directly to individuals, it does create difficulties... ...Indeed, the extent to which certain parties have endeavoured to ensure the legal justification of torture, notably in the war on terrorism, particularly liberal scholars and the United States, has been quite alarming. What will be discovered is that a mitigating factors approach manages to deal with the exigent circumstances faced by the individual whilst maintaining the absolute prohibition on the State. Ultimately, the question is: how far should the prohibition against preventive torture extend towards individuals in regards to necessity?

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I. INTRODUCTION

‘But if you hire torturers then you hire torturers, whose whole outlook is based on stupidity and

coercion, and you can bet that even with a ticking bomb nearby they would be busily gang-raping

the wrong guy...’

- Christopher Hitchens1

Torture is a fickle thing, frequently debated within the frameworks of both domestic and

International Criminal Law. Indeed, it is not easily defined by some discrete pro forma of prohibited

acts, making it all the more contentious from the outset.2 Today’s western society is heavily

propagandised by the media3 with the notion that torture gets results, most of which is a result of

paranoia post 9/11 almost 10 years ago. Surely there can be no mere coincidence between the

events on September 11th and the first airing of hit US television show ‘24’ on November 6th of the

same year. The general western population were, at the time, ravenous for results – retribution even

– in light of their perceived threats to National Security, with their heads buried in the sand,

oblivious and ignorant to the price of their protection.4 Public consensus had begun to indicate that

torture was simply an appropriately necessary price to pay.

1 Christopher Hitchens, In case anyone’s forgotten: torture doesn’t work (2001) The Guardian UK

<http://www.guardian.co.uk/world/2001/nov/14/afghanistan.terrorism2> at 15 March 2010. 2 Vienna Colucci, Denounce Torture: Torture and the Law (2001) Amnesty International USA

<http://www.amnestyusa.org/stoptorture/law.html> at 15 March 2010. 3 See James R. Silkenat, Peter M. Norman, ‘Jack Bauer and the Rule of Law: The Case of Extraordinary Rendition’

(2006-2007) 30 Fordham International Law Journal 535. Steven Keslowitz, ‘The Simpsons, 24, and the Law: How Homer Simpson and Jack Bauer Influence Congressional Lawmaking and Judicial Reasoning’ (2007-2008) 29 Cardozo Law Review 2787. Sam Kamin, ‘How the War on Terror May Affect Domestic Interrogations: The 24 Effect’ (2006-2007) 10 Chapman Law Review 693. David Luban, ‘Torture and the Professions’ (2007) 26 Criminal Justice Ethics 2. See also Michael J Lewis, Representations and Discourse of Torture in Post 9/11 Television: an Ideological Critique of 24 and Battlstar[sic] Galactica (A Thesis, Graduate College of Bowling Green State University, 2008) <http://rave.ohiolink.edu/etdc/view?acc_num=bgsu1205864439>. 4 See Christopher Hitchens, A moral Chernobyl: Prepare for the worst of Abu Ghraib (2004) Slate

<http://slate.msn.com/id/2102373/> at 15 March 2010.

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Torture is both non-derogable under Human Rights Law towards States, and of jus cogens.5 No

argument is made in this essay against excluding criminal responsibility under International Law

through the Rome Statute for acts of torture in instances of widespread systematic attack against

civilian populations or within the context of international or non-international armed conflict under

the available grounds of exclusion.6 This essay focuses on preventive torture. Nevertheless, The

Convention Against Torture (CAT) holds an absolute prohibition on torture against States.7 Under

Customary Law, this prohibition is binding on all States, regardless of ratification of any of the

International Human Rights treaties.8 These foundations provide the framework for the ultimate

argument that the defence of necessity should be unavailable in instances of preventive torture by

the individual investigator.9 How we effectively approach torture then, is governed by a fitting

approach to the conflict between how the subject matter is viewed under International Human

Rights Law, against the availability of the defence for the individual under International Criminal

Law.10

Ostensibly, the availability of necessity musters some consequentialist sense.11 But such a conclusion

cannot be made without recalling the absolute prohibition.12 Although the prohibition on States

does not inherently translate directly to individuals, it does create difficulties. Of great importance

5 Prosecutor v Furunžija (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber,

Case No IT-95-17/1-T, 10 December 1998) [153]-[157] (‘Furunžija’). See also, Eyal Benvenisti, ‘The Role of National Courts in Preventing Torture of Suspected Terrorists’ (1997) 8 European Journal of International Law 596, 603. Gaeta, above n 5, 787. Malcolm Shaw, International Law (Cambridge University Press, 5

th ed, 2003)

117. See also Antonio Cassese, International Law (Oxford University Press, 2nd

ed, 2005), 204-205. 6 See Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90

(entered into force 1 July 2002) arts 7(1)(f), 7(2)(e), 8(2)(a)(ii), 8(2)(c)(i) (‘Rome Statute’). See also Gaeta, above n 5, 785-794. Oren Gross, ‘Are Torture Warrants Warranted?’ (2004) 88 Minnesota Law Review (2004) 1481. J. T. Parry, W. S. White, 'Interrogating Suspected Terrorists: Should Torture be an Option?’ (2002) 63 University of Pittsburgh Law Review 743. 7 See GA res. 39/46, annex, 39 UN GAOR Supp. (No. 51) at 197, UN Doc. A/39/51 (1984); 1465 UNTS 85 art 2(2)

(‘CAT’). 8 See Colucci, above n 2.

9 See Rome Statute art 31(1)(d).

10 See Florian Jessberger, ‘Bad Torture – Good Torture? What International Criminal Lawyers May Learn from

the Recent Trial of Police Officers in Germany’ (2005) 3 Journal of International Criminal Justice 1059. 11

See Ilias Bantekas, Susan Nash, International Criminal Law (Cavendish, 2nd

ed, 2003) 135. Geert-Jan Knoops, Defenses in Contemporary International Criminal Law (Transnational Publishers, 2001) 92. See also Cassese, above n 5, 219. See Gerhard Werle, Principles of International Criminal Law (The Hague: Asser Press, 2005) 109. 12

CAT art 2(2).

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therefore, is the clarification between the prohibition on States, against the implications for

individuals under International Criminal Law. Additionally relevant is the distinction between

approaching torture as a manner of ex ante justification as opposed to an ex post excuse for the

torturer, or arguably, neither at all.13 Indeed, the extent to which certain parties have endeavoured

to ensure the legal justification of torture, notably in the war on terrorism, particularly liberal

scholars and the United States, has been quite alarming.14 What will be discovered is that a

mitigating factors approach manages to deal with the exigent circumstances faced by the individual

whilst maintaining the absolute prohibition on the State. Ultimately, the question is: how far should

the prohibition against preventive torture extend towards individuals in regards to necessity?

I-(A). USELESS DESTRUCTION

‘Nobody has yet even suggested that the disgusting saturnalia in Abu Ghraib produced any

"intelligence" worth the name or switched off any "ticking bomb.”’

- Christopher Hitchens15

Torture more readily produces false confessions than accurate ones. 16 Christopher Hitchens

conceded, after voluntarily being waterboarded, that by the end of it all, he would have been willing

to supply whatever answer required to appease his captors.17 This reality is not merely an issue

13

See Kai Ambos, ‘May a State Torture Suspects to Save the Life of Innocents’ (2008) 6 Journal of International Criminal Justice 261, 262. 14

See Jessberger, above n 10, 1060. See Alan M. Dershowitz, ‘Is there a torturous road to justice?’, Los Angeles Times (Los Angeles, US), 8 November 2001. See also Alan M. Dershowitz, Why Terrorism Works – Understanding the Threat, Responding to the Challenge (Yale University Press, 2002). See also John T. Parry, ‘Torture Nation, Torture Law’ (2008) 97 The Georgetown Law Journal 1001. Mark Adams, Why does the U.S. government torture people? (2009) The Daily Censored, <http://dailycensored.com/2009/06/24/why-does-the-u-s-government-torture-people/> at 16 March 2010. 15

Hitchens, above n 4. 16

See Hitchens, above n 1. 17

See Christopher Hitchens, Believe me, It’s Torture (2008) Vanity Fair <http://www.vanityfair.com/politics/features/2008/08/hitchens200808> at 15 March 2010.

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relevant to the effectiveness of torture, but also to its morality and impact on human dignity.18

Regardless of whether the investigator is trained to apply acts of torture, skill is not a relevant factor

in situations that toy with the violation of the dignity of a human being.

Despite countless years of torture by the United States,19 no definitive evidence has yet been

brought to rationally infer that we have come any closer to the prevention of violence, criminal

activities, or, more recently, a victory in the war against terrorism.20 And yet, the concept of torture

as a viable mechanism to obtain valuable information has grown deceptively enticing, notably after

9/11. If torture is truly the sole means through which precious life-saving information can be

retrieved from ‘terrorists’, then why not? Terrorists don’t deserve to be treated like the rest of us.21

Unfortunately, such a ‘last resort’ approach is troublesome once one considers what is really at stake.

Any fool can be hastily lured by the notion that an impending force of necessity can righteously

dictate torture. Indeed, in circumstances involving growing serious and imminent terrorist attacks, it

almost becomes superficially unclear whether the absolute prohibition should prevail in every

situation, particularly in abstracto.22 But such blind consideration foregoes the imperative values of

18

See contrary TheSophist, A Policy for Torture – Responding to Christopher Hitchens (2008) Redstate <http://archive.redstate.com/blogs/thesophist/2008/jul/02/a_policy_for_torture_responding_to_christopher_hitchens> at 15 March 2010. 19

See Parry, above n 14, 1001. David A. Wallace, ‘Torture v. The Basic Principles of the US Military’ (2008) 6 Journal of International Criminal Justice 309. 20

See Parry, above n 14, 1001. See Alon Harel, Assaf Sharon, ‘Can We Ever Justify or Excuse Torture? What is Really Wrong with Torture?’ (2008) 6 Journal of International Criminal Justice 241, 244. David Sussman, ‘What’s Wrong with Torture?’ (2005) 33 Philosophy and Public Affairs 1, 12. Wallace, above n 19, 309. 21

See Parry, above n 14, 1001. Jay S. Bybee, Assistant Attorney Gen., Office of Legal Counsel, U.S. Department of Justice, to Alberto R. Gonzales, Counsel to the President, regarding Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340–2340A (Aug. 1, 2002), <http://www.washingtonpost.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf>. Charles Judson Harwood Jr to Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation under 18 U.S.C. §§ 2340-2340A <http://homepage.ntlworld.com/jksonc/docs/torture-doj-20020801.html>. John C. Yoo, Deputy, Assistant Attorney General, Office of Legal Counsel, U.S Dep’t of Justice to William J. Haynes II, General Counsel of the Department of Defense, Re: Military Interrogation of Alien Unlawful Combatants Held outside the United States (March 14, 2003) <http://www.fas.org/irp/agency/doj/olc-interrogation.pdf>. 22

See Gaeta, above n 5, 790.

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human dignity that International Law serves to protect.23 What must be acknowledged, is that

torture is not merely an offence against its direct victim, but one against all humankind.24

It must be made clear that an appeal to Human Rights Law as a cornerstone influence of

International Criminal Law is not merely some absolutist deontological plea25 to maintain the

absolute prohibition regardless of the consequences. It is instead, a call to light on the significance of

Human Rights on the foundation of International Criminal Law. As such, this essay still maintains its

focus primarily on preventive torture and the defence of necessity for individuals under

International Criminal Law.

I-(B). HUMAN DIGNITY

Human Rights guarantees are integral to International Law, particularly in regards to International

Criminal law.26 As such, the assertion that a State agent considers preventive torture and applies it as

a last resort to save the lives of innocent persons should in no way exclude his or her criminal

responsibility.27 Torture essentially instrumentalizes the victim for a preventive ends by profoundly

violating human dignity.28 It is worrying that human dignity should fail, on balance, against the

weight of the threat of terrorism. The tension must instead strike harmony between the respect for

the suspect’s human dignity, with the active protection of potential victims from attack.29 Human

dignity remains the foremost principle at the heart of the prohibition on torture, regardless of

23

See CAT art 2. 24

See Harel, Sharon, above n 20, 245. See also Immanuel Kant, ‘On a Supposed Right to Lie from Philanthropy’, in M. G. Gregor, Immanuel Kant, Practical Philosophy (Cambridge University Press, 1996) 611-615. 25

See Harel, Sharon, above n 20, 248. Wallace, above n 19, 309. 26

See Jessberger, above n 10, 1071. See Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953) as amended by Protocol No 14bis to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 27 May 2009), CETS No 204 (entered into force 1 September 2009) preamble (‘European Convention on Human Rights’). See Cassese, above n 5, 393-396. See Werle, above n 11, 109. 27

See Jessberger, above n 10, 1061. 28

See Grundgesetz für die Bundesrepublik Deutschland [Basic Law of the Federal Republic of Germany] art 1(1), 104(1). See European Convention on Human Rights art 3. See also CAT. See also Mordechai Kremnitzer, ‘The Landau Commission Report: Was the Security Service Subordinated to the Law, or the Law to the Needs of the Security Service?’ (1989) 23 Israel Law Review 238, 249. See Harel, Sharon, above n 20, 245-246. 29

See Ambos, above n 13, 262.

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whether any ex ante or ex post conclusion can be drawn in relation to the victim’s terrorist

activities.30 Any State that deliberately violates or manifests some excuse or justification against the

prohibition, defies its own principles of the Rule of Law, and aligns itself with the very repugnance

and evil that torture represents.31

II. THE ABSOLUTE PROHIBITION ON TORTURE IN INTERNATIONAL LAW

Under Human Rights Law, torture is non-derogable, with no emergency situation available for

justification.32 Importantly, the non-derogability clause under The CAT refers to torture stricto sensu.

Altogether, torture is enforced under International Criminal Law under the CAT as a discrete crime,

the Rome Statute, and arguably through Customary International Law, regardless of wartime.33 This

applies to the criminal jurisdiction of all State parties to the CAT and the Geneva Conventions.34

The non-derogability clause favours the absolute ban on torture as provided for in the Human Rights

treaties.35 It aims to ensure that States do not resort to ‘necessary’ measures derogating from the

30

See Judgement on the Interrogation Methods applied by the GSS, H.C. 5100/94, H.C. 4054/95, H.C. 6536/95, H.C. 5188/96, H.C. 7563/97, H.C. 7628/97, H.C. 1043/99, (1999) Israeli Supreme Court § 22, <http://www.derechos.org/human-rights/mena/doc/torture.html> at 28 March 2010 (‘Israel GSS Case’). See also Mirielle Delmas-Marty, ‘The Paradigm of the War on Crime’ (2007) 5 Journal of International Criminal Justice 584, 592. Michael S. Moore, ‘Torture and the Balance of Evils’ (1989) 23 Israel Law Review 280, 332. See also Jeremy Waldron, ‘Torture and Positive Law: Jurisprudence for the White House’ (2005) 105 Columbia Law Review 1681, 1681. 31

See Yuval Shany, ‘The Prohibition against Torture and Cruel, Degrading and Inhuman Treatment and Punishment: Can the Absolute be Relativized under International Law?’ (2007) 56 Catholic University Law Review 101, 106-107. See Ambos, above n 13, 269. 32

Gaeta, above n 5, 787. See also CAT art 2. See also ‘Conclusions and recommendations of the Committee against Torture: Belgium’, (05/27/2003), CAT/C/CR/30/6 (Concluding Observations/Comments), <www.unhchr.ch/tbs/doc.nsf/(Symbol)/CAT.C.CR.30.6.En?Opendocument> at 20 March 2010 (‘Conclusions and recommendations of the CAT: Belgium’). 33

Gaeta, above n 5, 787. See also Cassese, above n 5, 117-119. See Rome Statute art 31(1)(d). 34

See International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, <http://www.unhcr.org/refworld/docid/3ae6b36c8.html> at 30 March 2010. See also International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, <http://www.unhcr.org/refworld/docid/3ae6b36d2.html> at 30 March 2010. 35

See Vienna Convention on the Law of Treaties, opened for signature 23 May 1969, 1155 UNTS 331 (entered into force 27 January 1980) art 30(2) (‘Vienna Convention’). See Shany, above n 31, 120-121. See also Delmas-

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international obligation to proscribe torture, in spite of any declaration of war or public emergency.

Indeed, jurisprudence in International Criminal law has alluded that the prohibition constitutes ‘an

absolute value from which nobody must deviate.’36 The defence of necessity, therefore, seemingly

has no place, given these concessions. International Humanitarian instruments are indeed

‘particularly designed to govern emergency situations’.37 Such protection fails if the defence of

necessity manages to seep through. International bodies, particularly the UN Human Rights

Committee and the UN Committee Against Torture agree assertively that torture can never be

justified or excused under International Law.38 The HR Committee specifically maintains that no

justification or extenuating circumstance can validly be invoked as an excuse for torture.39 The CAT

also goes as far as to require some States to expressly abandon necessity as an available defence to

torture.40 In spite of all this, the Rome Statute still provides for the defence of necessity in regards to

international crimes,41 with article 31(1)(d) expressly providing that necessity is available for crimes

falling within the jurisdiction of the International Criminal Court.42

II-(B). THE STATE VS. THE INDIVIDUAL

The CAT implicates the responsibility to prosecute and punish acts of torture as offences under the

domestic Criminal Law of respective States.43 Along with the German Court in Daschner, the CAT also

Marty, above n 30, 595. See also Sanford H. Kadish, ‘Torture, the State and the Individual’ (1989) 23 Israel Law Review 345, 350-351. 36

Furunžija [153]-[157]. 37

See Shany, above n 31, 121. 38

Gaeta, above n 5, 787-789. 39

‘General Comment No. 20: Replaces general comment 7 concerning prohibition of torture and cruel treatment or punishment (Art. 7) : . 03/10/1992.CCPR General Comment No. 20.’ (General Comments) para 3 <http://www.unhchr.ch/tbs/doc.nsf/0/6924291970754969c12563ed004c8ae5?Opendocument> at 30 March 2010. 40

Conclusions and recommendations of the CAT: Belgium. See also ‘Conclusions and recommendations of the Committee against Torture: Israel’, (11/23/2001), CAT/C/XXVII/Concl. 5 (23/11/2001), para 6, <http://www.unhchr.ch/tbs/doc.nsf/0/60df85db0169438ac1256b110052aac5> at 30 March 2010. 41

Gaeta, above n 5, 787-789. 42

Gaeta, above n 5, 785. See also Israel GSS Case. Rome Statute. 43

See Jessberger, above n 10, 1068. See CAT art 4(1).

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prohibits States from invoking necessity for acts of torture.44 The issue is, of course, whether such

prohibition applies to individuals.

Whilst a dichotomy exists between the relevant International Human Rights Law regarding the

behaviour of the State, and International Criminal Law regarding the individual,45 the two bodies

essentially operate at distinct levels. This distinction between the State and the individual, arguably

leaves open the pretence that torture, at the individual level, may be justified or excused on the

basis of exceptional circumstances. Human Rights Law prescribes how States must behave towards

individuals within their control and jurisdiction, which may involve establishing ‘sanctions’ in the

event of non-compliance. International Criminal law, in contrast, is more flexible in its availability of

grounds excluding criminal responsibility,46 and is poised towards individuals to ensure grave and

systematic breaches of Human Rights by individuals are prosecuted and punished.47 In effect, the

two bodies are not explicitly mutually exclusive despite their seemingly different focuses. What will

be inevitably shown is that International Criminal Law is heavily founded on the influences of Human

Rights Law.

III. UNAVAILABILITY OF NECESSITY FOR PREVENTIVE TORTURE

The factual unavailability of the defence of necessity is, for the purposes of this essay, confined to

preventive torture.48 This essay does not dispute the availability of the defence for large, widespread

and systematic acts of torture constituting war crimes or crimes against humanity, which do not

44

See Conclusions and recommendations of the CAT: Belgium. See Jessberger, above n 10, 1068. See John Kleinig, ‘Ticking Bombs and Torture Warrants’ (2005) 32 Deakin Law Review 614. See also Paul Nieuwenburg, Is There Such a Thing as Government Ethics? Or: A Machiavellian Plea for Excuses (Faculty of Law, Leiden University), <http://soc.kuleuven.be/io/ethics/paper/Paper%20WS1_pdf/Paul%20Nieuwenburg.pdf> at 30 March 2010. 45

Gaeta, above n 5, 789-790. 46

Gaeta, above n 5, 789-790. See also Shany, above n 31, 126. See also Benvenisti, above n 5, 609. 47

See Gaeta, above n 5, 789-790. 48

See CAT.

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require the individual investigator to be in pursuit of a particular purpose.49 Although International

Criminal Law provides, generally, for certain grounds of exclusion, such criminal responsibility for

torture as a preventive means should not be excluded merely based on the premonition or precept

of saving innocent lives, regardless of the scale of attack.50 Neither can it suitably be that torture is

necessary to save lives since it can never rightly be the case that torture will be an absolute means to

success.

The Israeli Penal Code,51 concerning justificatory necessity, makes it clear that criminal liability will

be excused only where: (i) the act is immediately necessary for the purpose of saving life, liberty,

body or property, of either himself or his fellow person, from substantial danger of serious harm; (ii)

the danger is imminent from the particular circumstances; or (iii) and at the requisite timing, there

are no alternative means for avoiding the harm (emphasis added). Again, the German Penal Code

allows justificatory necessity if the individual investigator has considered all conflicting interests,

particularly legal ones, the degree of danger involved, and the interest protected by him significantly

outweighs the interest harmed.52 The rules apply only if the act is an appropriate means to avert the

danger. This author certainly does not consider torture an appropriate means.

III-(A). JUSTIFICATIONS (EX ANTE) AND EXCUSES (EX POST)

Under the Rome Statute, there is no practical distinction between justifications and excuses made in

International Criminal Law.53 While the significance of the distinction is recognised by Israeli

49

See Gaeta, above n 5, 792. 50

See Jessberger, above n 10, 1068-1069. 51

Israel GSS Case § 33. 52

Author’s translation Ambos, above n 13, 279. (Strafgesetzbuch) German Penal Code (Germany) 13 November 1998, FLGI, 1998, s 34, 35 (‘German Penal Code’). See also Model Penal Code, § 3.02(1)(a) (American Law Institute 1962) (‘Model Penal Code’). 53

See Jessberger, above n 10, 1069. See contrary Kai Ambos, ‘Toward a Universal System of Crime: Comments on George Fletcher’s Grammar of Criminal Law’ (2007) 28 Cardozo Law Review 2647. See contrary Kai Ambos, ‘Other Grounds for Excluding Criminal Responsibility’ in Antonio Cassese, Paolo Gaeta, John Jones, The Rome Statute of the ICC: A Commentary, Vol. I (Oxford University Press, 2002) 1035-1036. See contrary Gaeta, above n 5, 785-794. See Ambos, above n 13, 261.

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scholars,54 it is neither recognised formally in Common Law jurisdictions nor in International Criminal

Law.55 The Rome Statute is aligned with the German Penal Code to the extent that the investigator

must not intend to cause a harm greater than the one sought to be avoided56 – the infamous

balancing act. This approach is flawed in that it essentially justifies torture under the ticking-bomb

paradigm if one considers torture to be of lesser harm than the loss of life of an indeterminable

number of innocent people.

Although the Israeli Supreme Court held that the necessity defence would be available to a GSS

investigator provided ‘all the requirements of the [defence] [were] met’, it clarified that

generalisations concerning when the defence might be available could not be employed to authorise

government officials to torture foresightedly.57 As an ‘ad hoc endeavour’,58 the defence could not be

used as a ‘source of a general administrative power.’59 The most appropriate way to deal with

torture is to look at it prospectively, and as such, only consider its appositeness ex ante, ‘here and

now’.60 Therefore, torture must be excluded from all ex ante considerations.

If torture can be justified under certain circumstances, any supporting policy, ex ante, may also be

justified, whereby accomplices and aiders and abettors can no longer be held liable for their

contributions to the crime.61 This is particularly important for future judgments of a tribunal

involving multiple defendants from the same military organisation, such as the prosecutions

involving torture at Abu Ghraib. In the same manner, if torture is excusable against some ex post

54

See contrary Moore, above n 30, 284, 308, 320. Alan M Dershowitz, ‘Is it Necessary to Apply “Physical Pressure” to Terrorists – and to Lie about it?’ (1989) Israel Law Review 192, 200. Paul H Robinson, ‘Letter to the Editor’ (1989) 23 Israel Law Review 189, 190; Miriam Gur-Arye, ‘Can the War Against Terror Justify the Use of Force in Interrogations?’ in Sanford Levinson (ed.), Torture: A Collection (Oxford University Press, 2004) 183, 188. 55

See Ambos, above n 53, 2659, 2669. 56

See Rome Statute art 31(1)(d). See also Model Penal Code § 3.02(1)(a). 57

Israel GSS Case. See also Youngjae Lee, ‘The Defence of Necessity and Powers of the Government’ (2009) 3 Criminal Law and Philosophy 133, 135. 58

Israel GSS Case. See also Lee, above n 57, 136. 59

Israel GSS Case. See also Lee, above n 57, 136. 60

See Harel, Sharon, above n 20, 250. 61

See George P. Fletcher, Rethinking Criminal Law (Oxford University Press, 2000) 759, 761. See contrary Kent Greenawalt, ‘The Perplexing Borders of Justification and Excuse’ (1984) 84 Columbia Law Review 1897, 1925-1926.

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conviction and punishment, it is not difficult to imagine the chaos that would emanate from the very

idea that specific circumstances will excuse violations to human dignity.62

Individuals who fail to ‘overcome pressures and avoid committing wrongs’63 by resorting to torture

have nevertheless committed a wrong, regardless of the level of pressure, provided there is no

duress.64 To grant justification or excuse for their actions is no more an act of justice to the individual

as it is a sacrifice of the integrity and legitimacy of a law-abiding State to the strict prohibition of

torture and respect of human dignity. Preventive torture is always unreasonable, however well-

intentioned the motives of the torturer may be.65 No greater good is great enough to justify or

excuse an express and severe violation of human dignity.66 In the same manner that no State should

be permitted to resort to infringing human dignity, so too should its agents be bound, lest shake ‘the

moral foundations of our society’.67

III-B. A LACK OF IMMEDIACY

‘Once you have posed the notorious “ticking bomb” question, and once you assume that you are in

the right, what will you not do? Waterboarding not getting results fast enough? The terrorist’s clock

still ticking? Well, then, bring on the thumbscrews and the pincers and the electrodes and the rack.’

- Malcolm Nance68

62

See Jens David Ohlin, ‘The Bounds of Necessity’ (2008) 6 Journal of International Criminal Justice 290, 295. See also Harel, Sharon, above n 20, 241. 63

Gur-Arye, above n 54, 183, 188. 64

Rome Statute art 31(1)(d). 65


See also Ohlin, above n 62, 300. 67

See also Lee, above n 57, 134. See also Michael Ignatieff, The Lesser Evil: Political Ethics in an Age of Terror (Princeton University Press, 2004) 143. Jean Bethke Elshtain, ‘Reflection on the Problem of ‘‘Dirty Hands’’’ in Sanford Levinson (ed.), Torture: A Collection (Oxford University Press, 2004) 77, 84. Kadish, above n 35, 352–56. Steven Lukes, ‘Liberal Democratic Torture’ (2005) 36 British Journal of Political Science 1. Waldron, above n 30, 1715. See contrary Harel, Sharon, above n 20, 241. 68

See Hitchens, above n 17.

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Necessity requires the highest level of immediacy; torture must be the last exhausted resort.69

Although doctrine and Case Law indicate that the immediacy requirement should be understood

more broadly in cases of preventive torture,70 such reasoning is unconvincing. The inability to

accurately gauge the imminence of the threat means that any preconception of immediacy can only

ever be founded on assumption – otherwise, torture would not be required at all. In this sense, this

preliminary notion of immediacy becomes impossible to satisfy for preventive torture.

Even if the danger proves imminent, the investigator must act necessarily and reasonably to avoid

the threat.71 To consider torture to be a necessary and reasonable course of action is noticeably

concerning. Unfortunately, this has proved too easy an obstacle for authorities such as The

Commission of Inquiry Report which considered the ‘great evil’ of terrorism as one justifying the

necessary counter-measure of torture for the purposes of the necessity defence so long as it could

be specifically shown that the use of force up to the degree of torture was necessary.72 Dershowitz’

argument that the defence of necessity should be open to all in the appropriate circumstances, is

incorrectly founded on the assumption that the contours of necessity cannot be precisely defined.73

It is not that the contours cannot be defined. It is instead that reality never lends itself to the

defence in instances of preventive torture.

The investigator never knows with certainty whether the danger lies within seconds or some inexact

moment in the future.74 They are not afforded the elusive counting down of a timer, as depicted in

movies, to inform them when the bomb will explode. As such, the starting point must instead be to

safely assume that alternative counter-measures will suffice in averting the danger,75 in which case,

69

See Ambos, above n 13, 280. Israel Penal Law (Israel) art 34(11); German Penal Code, s 34. See Rome Statute art 31(1)(d). 70

Robinson, above n 54, 189. See also Israel GSS Case § 34. 71

See Rome Statute art 31(1)(d). See Ambos, in Cassese, Gaeta, Jones, above n 53, 1040. 72

See ‘Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity’, 23 Israel Law Review (1989) 146, 186. 73

See Israel GSS Case § 34. See Dershowitz, above n 54, 197. 74

See also Adrian Zuckerman, ‘Coercion and the Judicial Ascertainment of Truth’ (1989) 23 Israel Law Review 357, 365. 75

See Jessberger, above n 10, 1072.

14

torture can no longer be considered immediately necessary. The Israeli Court76 erred in its argument

that the imminence requirement would be satisfied even if the bomb is set to explode ‘after a few

weeks’.77 Where the imminence of the danger is unknowable, the only reasonable approach to

obtain the information necessary to avert the crisis is through means other than torture, such as

effective investigation and intelligence.78 Any belief that effective alternatives do not exist expressly

forgoes the importance of preserving human dignity in the investigator’s subjective deliberations.79

IV. DISPROVING THE RELEVANCE OF THE ‘MODEL CASE’

‘What instead makes the ticking bomb scenario improbable is the notion that in a world where

knowledge is ordinarily so imperfect, we are suddenly granted the omniscience to know that the

person in front of us holds this crucial information about the bombers’ whereabouts. (Why not just

grant us the omniscience to know where the bomb is?)’ (emphasis added)

- Elaine Scarry80

Particularly common amongst the arsenal of commentators against the practicality of the absolute

prohibition against the individual is the argument for the extreme model case, otherwise known as

the ticking-bomb paradigm. It involves an investigator who is faced with the ‘ultimate’ dichotomic

choice between saving the lives of innocent civilians, and the treacherous alternative of torturing the

‘terrorist’ for the vital information that will allegedly prevent the attack. The paradigm assumes that

76

Israel GSS Case. 77

Robinson, above n 54, 189. 78

See Ambos, above n 13, 281. See also Kevin Jon Heller, ‘Torture, Necessity, Self-Defence – and John Yoo’s Fundamental Dishonesty’ (2009) Opinio Juris <http://opiniojuris.org/2009/04/28/torture-necessity-self-defense-and-john-yoos-fundamental-dishonesty/> at 30 march 2010. 79

See Ambos, above n 13, 282. 80

Elaine Scarry, ‘Five Errors in the Reasoning of Alan Dershowitz’ in Sanford Levinson (ed.), Torture: A Collection (Oxford University Press, 2004) 281.

15

in the balance of evils, the only choices available are to either let the terrorist carry out their attack

or to torture them for possible information. Doing so, disregards the availability of alternative and

more humane methods of investigation. Indeed, torture ought not be a consideration at all amongst

the alternatives, and instead excluded from the outset.81 This choice of evils is an essential price

necessary to uphold the rule of law and should never be ignored – especially in times of a global war

or instances of potential terrorism.82 The model case is fundamentally unrealistic, and any

preconceived notion that necessity might reasonably excuse or justify such an alternative for

preventive torture, is delusional – almost contaminating83 – at best. The jus cogens nature of the

prohibition under Customary International Law should not allow any defence, let alone one of

necessity.84 The agent ought to act under guidance of the legal system as opposed to what he or she

summarily misjudges the circumstances to dictate.85

The paradigm foolishly concludes that torture must be the sole means through which life-saving

information can be obtained: terrorists cannot be negotiated with.86 We should be weary, as Henry

Shue argues, about drawing ‘conclusions for ordinary cases from extraordinary ones.’87 The

unfortunate reality is that there will always be a ticking-bomb somewhere.88 Whatever conclusions

can be drawn from the model case, it nevertheless remains a model case. Just as economics is not

explained merely by the laws of supply and demand, neither can the model case thoroughly govern

preventive torture. We do not live in a perfect world, and even if we did, torture would surely not be

a part of it.

81

See Harel, Sharon, above n 20, 252. See also Lee, above n 57, 134. See also Scarry, above n 80, 284. Waldron, above n 30, 1715. 82


See Oren Gross, ‘The Prohibition on Torture and the Limits of Law’ in Sanford Levinson (ed.), Torture: A Collection (Oxford University Press, 2004). Richard A. Posner, ‘Torture, Terrorism, and Interrogation’, in S. Levinson (ed.), Torture: A Collection (Oxford University Press, 2004) 291, 295. See Harel, Sharon, above n 20, 253. 84


See contrary Harel, Sharon, above n 20, 250. 86

AFP/Reuters, ‘US rejects ‘bin Laden’ truce offer’ (2006) ABC News Online <http://www.abc.net.au/news/newsitems/200601/s1551373.htm> at 28 March 2010. 87

Henry Shue, ‘Torture’ (1978) 7 Philosophy and Public Affairs 124, 141. 88

See Hitchens, above n 4.

16

Again, the paradigm incorrectly assumes the availability of a terrorist suspect as armed with the

exact information required to save innocent lives from an imminent attack. It relies predominantly

on the application of torture within a narrow and specific objective; that is, to acquire the exact

information required to disarm the terrorist’s bomb. The Israeli Supreme Court agrees, at least

preliminarily, that general and vague objectives such as the gathering of ‘information regarding

terrorists and their organising methods’89 cannot adequately justify torture.90

More importantly, torture does not ineluctably prevent imminent danger to life and limb since the

suspected terrorist may not have the right information, or may remain silent.91 The torturer never

knows the consequences of their actions, ex ante. The agent may additionally be unsure whether the

victim is innocent or not. Such a risk should never be taken given innocent civilians deserve the

greatest protection both under International Criminal Law and jus in bello.92

Admittedly, it can never be ruled out that a situation may exist in which the investigator is certain

the victim possesses and can provide the required information.93 Nevertheless, the existence of such

a situation does not rationally infer the certainty that torture must be the sole means through which

to obtain such information. Assuredly, the application of physical pressure is more unwarranted

against the terrorist or kidnapper (Daschner) than the innocent victim.94 But such assessment can

only be performed after the inexcusable act has been committed. The gravity of torture as a

violation of human dignity, when shone under the light of the uncertainty of the culpability of the

victim, infers that torture can never be justified and creates a greater duty on the investigator to

refrain from being so reckless.95 Any crime that risks the harm of an innocent person cannot be

89

Israel GSS Case § 1. 90


See Gaeta, above n 5, 785, 790. 92

Prosecutor v Erdemović (Judgement) (International Criminal Tribunal for the Former Yugoslavia, Appeal Chamber, Case No IT-96-22, 7 October 1997) [72]. 93


See Moore, above n 30, 326. 95

See Moore, above n 30, 315, 333. See also Benvenisti, above n 5, 607. Gur-Arye, above n 54, 183, 183-184, 191, 193.

17

justified or excused under any circumstance.96 The model case is paradoxically perfect in its

imperfection. If all of the appropriate factors are truly in play, then there should be no need for the

additional check-mate.

V. DASCHNER

A similar situation to the model case occurred in the German Daschner97 case, involving a threat of

torture on Marcus Gaefgen who had kidnapped 11-year-old Jakob von Metzler in September 2002. A

distinction concerning Daschner against the ticking-bomb paradigm is that it involves only the threat

to torture. However, the Frankfurt District Court ignored this issue. In the same vein as preventive

torture, the objective of the threat was to gain valuable information required to rescue the

kidnapped victim.

Unfortunately, authorities were unaware at the time that Gaefgen had already killed Metzler and

hidden his body. Unknowingly, General Daschner felt it necessary as a last resort to threaten

Gaefgen with the infliction of pain under medical supervision after prior warning.98 It is of no

surprise that public opinion during the investigation, including that of several politicians and

representatives of the judicial system, sympathized greatly with Daschner’s situation and expressed

opposition to punishing him and the subordinate officer involved.99 No doubt they feared the

consequences that might have arisen had they been in a similar position. The fact that Daschner was

unaware of the actual circumstances of the situation is, however, testament to the uncertainty

shrouding the ticking-bomb paradigm. No one other than Gaefgen could know that nothing could

have been done, at that point, to save the boy.

96


See Kleinig, above n 44. See also Nieuwenburg, above n 44. 98

See Jessberger, above n 10, 1061-1062. 99

Ibid, 1062.

18

The Court convicted Daschner of both instructing a subordinate to commit an offence100 and of

coercion101 (under which the subordinate officer was also charged).102 Although there is some

distinction between the threat of torture and actual torture, the Court maintained that the threat to

use force infringed human dignity as provided for in both the German Constitution and International

law.103 By invoking s 59 of the German Penal Code, the court, under an overall assessment of the

defendants’ conduct and personality, felt punishment was ultimately unwarranted.104 To clarify, it

refrained from concluding that the act was either justified or excused, and both defendants were

nonetheless criminally responsible for their actions.105 Furthermore, the defence of necessity was

categorically refused.106

Essentially, Daschner took an approach of mitigating factors,107 which ensured the stringent

prohibition of torture against the State, with a level of understanding towards the individual

investigator whose subjective view may be one of extreme circumstances.108 Where the individual

investigator truly perceives torture to be the sole and final means through which the required

information can be obtained to save innocent life, this approach ensures the absolute prohibition

against States under German Constitutional and International Law remains intact.109 It does so

without sacrificing the attribution of individual criminal responsibility based merely on the

justification or excuse that saving human life was the objective of the preventive torture.110 It

assures that human beings are not instruments to be abused for the purposes of obtaining

information,111 and aligns with the approach taken by International Criminal Law regarding the

100

See German Penal Code, s 357(1). 101

See German Penal Code, s 240. 102

See Kleinig, above n 44. See also Nieuwenburg, above n 44. See Jessberger, above n 10, 1064. 103


See Ambos, above n 13, 262. See John Kleinig, Kleinig, above n 44. See also Nieuwenburg, above n 44. 105




See Ambos, above n 13, 263. See Jessberger, above n 10, 1066. 109



See Gaeta, above n 5, 792, 793.

19

defence of obedience to superior orders.112 Any failure to stringently apply this prohibition opens

the door for a culture of torture to be considered as an acceptable solution in any difficult case.113

Daschner accounts for these grave circumstances by allowing mitigating factors to reasonably reduce

the sentence, rather than applying a blanket cleansing of criminal responsibility through the defence

of necessity.114 As demonstrated by the fallacies of the model case, each circumstance must be

considered on a case-by-case basis and the approach of mitigating factors helps to deal with this.

The court concluded that since Metzler was already dead, the defence of necessity as a justification

for their actions was precluded under the German Penal Code ss 32 and 34 which required that all

elements of the defence were objectively present.115 Necessity as an excuse under s 35 was also

excluded.116 The idea that necessity essentially hinges on an indeterminable factor of the scenario,

ex ante, is, in itself, a terminal flaw. Even putative necessity should not exclude criminal

responsibility in light of any outcome. An act-now-think-later attitude is not a maxim the law should

support.

Although Daschner comes close, the ticking-bomb paradigm forever remains fictitious and

theoretical, ex ante.117 In mathematical terms, it is the asymptote, which can never be reached.

Certainly, in Daschner, Metzler was already dead. The argument that the compelling knowledge that

someone else will die can acceptably govern the investigator to break the law and carry out the

torture is falsely premised on the notion that innocent people will actually die – an inscrutable

concept, ex ante.118 The effectiveness of torture forever remains uncertain, either before or after it

has been committed. Additionally, these impending factors of uncertainty will always be present

112

German Penal Code. Rome Statute art 33. 113

See Harel, Sharon, above n 20. 114


German Penal Code. See Jessberger, above n 10, 1065. 116

German Penal Code. 117

See Alan M Dershowitz, Shouting Fire: Civil Liberties in a Turbulent Age (Little, Brown, 2002). See also Dershowitz, Why Terrorism Works..., above n 14. See contrary Waldron, above n 30. Shue, above n 87, 124. See Martin Scheinin, Report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, UN Doc. A/HRC/6/17/Add.1 (28 November 2007). 118

See Michael S. Moore, ‘Causation and the Excuses’ (1985) 73 California Law Review 1091.

20

within the reasoned mind of the individual. Any investigator (or commentator for that matter119)

who for some reason is willing to get their hands dirty120 on the belief that torture is an absolute

solution of last resort, is grossly mistaken.

The availability of the defence essentially opens torture into something lawful.121 In many cases, the

particulars of the ticking-bomb paradigm, such as whether a threat actually exists or has already

expired (Daschner), or whether the information will actually be obtained, can only truly be

ascertained ex post facto.122 Even in such scenarios, it will be difficult to properly establish any direct

causal link between the act of torture and the attainment of the information.123 To make such a

summary conclusion on factual causation is erroneous. Justifying torture with the availability of the

defence of necessity is a short-sighted and risky attempt to deal with the conflict faced by individual

investigators in extreme situations, when a mitigating factors approach, as taken in Daschner,

manages to appropriately address the paradigm.124 If the circumstances are so extreme so as to

significantly affect the investigator’s rational decision-making process, there should, regardless, be

no removal of criminal responsibility on the basis of necessity. Rather, the irrational act should be

considered in an assessment of mitigating factors on a case-by-case basis to prevent the widespread

abuse of human dignity.125

VI. THE IMPERATIVENESS OF HUMAN RIGHTS LAW FOR INTERNATIONAL

CRIMINAL LAW

119

See Winfried Brugger, ‘May Government Ever Use Torture? Two responses from German Law’ (2000) 48 American Journal of Comparative Law 661, 661. See Jessberger, above n 10, 1063. 120

See Michael Walzer, ‘Political Action: The Problem of Dirty Hands’ in Sanford Levinson (ed.), Torture: A Collection (Oxford University Press, 2004). 121

See Moore, above n 30, 320-321. 122

See Benvenisti, above n 5, 602. Scarry, above n 80, 284. Waldron, above n 30, 1715. 123

Gaeta, above n 5, 791. See contrary Donald Davidson, ‘Actions, Reasons, and Causes’ in Essays on Actions and Events (University of California Press, 2001) 3, 4. 124

See Ambos, above n 13, 284, 285. See also Gaeta, above n 5. 125

See also George P. Fletcher, ‘The Right and the Reasonable’ (1985) 98 Harvard Law Review 949. See Jessberger, above n 10, 1059.

21

‘Giving in to violence and to torture is, through lack of power in believing in man, equivalent to

giving up on constructing a human world.’

- Bollardiere126

Torture is not a subject easily comparable to other instances throughout the law that are known to

be justifiable or excusable by necessity. Examples such as ‘‘property may be destroyed to prevent

the spread of fire,’’ ‘‘[a] speed limit may be violated in pursuing a suspected criminal,’’ ‘‘an

ambulance may pass a traffic light,’’127 and so forth, are instances within the law in which necessity

can reasonably dictate a contravention. The key distinction is that none of these examples expressly

infringe Human Rights. It is accordingly implausible to extrapolate the same logic from these

examples and apply them in the same manner to torture.

While the right to freedom from torture is of jus cogens under International Law, the grounds for

excluding criminal responsibility under Customary International Law are not.128 This freedom,

however, overrides customary rules of International Criminal Law in any event of dissension as

supported by article 53 of the Vienna Convention.129 No derogation is permissible to rules of jus

cogens simply in the event of dissonance between the customary norm and the peremptory norm.

Regardless of whether the norms emerge from the Rome Statute or Customary International Law, a

Human Rights approach to the grounds for excluding individual criminal responsibility, is

imperative.130 Such an interpretation of the grounds for excluding responsibility under International

126

Jacques Paris de Bollardiere, Battaille d’Alger (Desclee De Brouwer, 1972) 92-93, quoted in Rita Maran, Torture: the Role of Ideology in the French-Algerian War (Praeger, 1989) 114. 127

See also Lee, above n 57, 136. See also Model Penal Code. 128


See Shaw, above n 5, 117. See also Cassese, above n 5, 204-205. See also Vienna Convention. 130


22

Criminal Law further solidifies the position that the pursuit of saving innocent life can never be justly

achieved by violation of human dignity through preventive torture that is ‘deemed’ necessary.131

The restriction on the availability of necessity to preventive torture in extreme circumstances is

important for precluding the legal justification of torture under any contingency. Given torture is an

extreme violation of human dignity, any attempt to weigh its gravity against the harm it attempts to

prevent, is perilous and meaningless. Whether or not one alternative causes more harm than the

other is irrelevant if grave harm is being caused nonetheless. Indeed, if such concession is made, it

erroneously alleviates the restriction on the level of harm capable of being enacted on the victim:

would then torture resulting in the victim’s death satisfy the balancing test if it was under the

intention of saving two lives?132 Do two lives warrant the death of one? The question can be asked

ad infinitum with no greater achievement. The distinctions are all the more difficult if all degrees of

torture consist of violating human dignity in one form or another. Distinguishing and limiting the

variance of harm applied is not as simple as the classification of alcohol as legal, and marijuana as

illegal133 – which itself has no logical basis for the author.

Indisputably, the drafters of the Rome Statute must have been aware of the conflicts between

Human Rights Law and the availability of defences as they composed it. It makes sense, therefore,

that the interpretation of International Criminal Law must be construed consistently with Human

Rights Law given its vast influence on other areas throughout International Law.134 As discussed

above, the last-resort nature of necessity can only ever be achieved through the fictional extreme

model case.135 From this particular view, the HR monitoring bodies and International Criminal Law

are aligned in their agreement on the unavailability of the defence of necessity for torture.136

Therefore, the grounds established by International Criminal Law for excluding criminal

131

Ibid, 1072-1073. 132

See Gaeta, above n 5, 792, 793. 133

See contrary TheSophist, above n 18. 134



See Gaeta, above n 5, 792.

23

responsibility do not apply to ‘preventive torture’ situations for reasons other than the absolute ban

on torture under International Law. In any event, article 21(3) of the Rome Statute expressly states

that the application and interpretation of law must be consistent with ‘internationally recognized

Human Rights,’ meaning Human Rights should take precedence over the provisions within the Rome

Statute.137 Any contrary interpretation would be inconsistent. Nothing other than a restrictive

interpretation of the grounds for excluding criminal responsibility in International Criminal Law, as

under Human Rights Law, is required. 138

V. CONCLUSION

The significant relevance of Human Rights Law to International Criminal Law is indisputable. In a

sense, this relationship encapsulates all that is contentious about torture itself. It is a subject

interwoven with myriad issues and is relevant not only to the legal commentators, but also to the

deontological and the philosophical. But when we isolate torture to preventive torture in

International Criminal Law, and we translate the absolute prohibition from the State to the

individual, we can better understand how torture, in all instances, need not be as fickle as the

discourse makes it out to be. Once the fundamental concession is made concerning the overarching

importance of Human Rights Law, it is not so difficult to comprehend how torture is something in

International Criminal Law which must be avoided at all costs. It doesn’t take a law degree to realise

that fighting fire with fire simply gives you more fire. No conception of necessity can ever justify or

excuse an investigator from grossly violating the human dignity of another despite their pursuit of

saving innocent lives. And even when they do, a mitigating factors approach adequately deals with

the perpretrator whilst importantly maintaining individual criminal responsibility.

137

See Jessberger, above n 10, 1070-1071. See Alain Pellet, ‘Applicable Law’ in Antonio Cassese, Paolo Gaeta, John Jones, The Rome Statute of the ICC: A Commentary, Vol. I (Oxford University Press, 2002) 1051-1084, 1079. 138


24

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27

Theses

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