The Unjustifiable Practice of Torture in the War on Terror: The Protection of National Security at the Cost of Individuals’ Human Rights
29th March 2019
The Unjustifiable Practice of Torture in the War on Terror: The Protection of National Security at the Cost of Individuals’ Human Rights. Author: Shauna McKee Queen’s University, Belfast
Since World War II,
the right of any individual to not be tortured has been a jus cogen in
international law. Unfortunately, this jus cogen has been side-lined by various
countries in their practice of torture with the United States of America being
the latest country to demonstrate disobedience of this peremptory norm in the
aftermath of September 11th 2001. In prioritising national security,
America has receded from its mantle as an international leader in human rights
and revealed itself to be an advocate for torture.
This dissertation aims
to identify the unjustifiability of America’s practice of torture during the
War on Terror with a focus on the Bush administration who chose to prioritise
national security over the absolute right of scores of individuals. To
establish how torture is legally defined, this dissertation will explore the
European Convention on Human Rights and its resulting jurisprudence prior to
critically analysing how torture has been deemed justifiable and subsequently
unjustifiable in the context of the War on Terror. After determining
unjustifiability, the issue of accountability will be examined regarding those
responsible for America’s utilization of torture.
concludes that the unjustifiability of America’s actions cannot be ignored and
action is necessary to prevent reoccurrence of the Bush administration’s gross
mistakes. Such action includes reforming U.S. military training, supporting the
International Criminal Court’s investigation into Afghanistan or further
promotion of the ‘truth’ of America’s torture practice to the wider public to
strengthen traction for accountability.
‘Torture is an
instrument of terror and not of justice’ – Canadian Supreme Court. 
On September 11th 2001, Al-Qaeda instigated the
largest terrorist attacks on U.S. soil with 2,993 fatalities. As a result,
national security has received primary consideration regarding foreign and
domestic policy relating to counter-terrorism; the Bush administration was
determined to prevent a reoccurrence of 9/11. However, resolve in protecting
national security at all costs blinded the state so that the prohibition on
torture was regularly breached.
In December 2014 the
Senate Intelligence Committee released a damning report that exposed the CIA’s
torturous interrogation methods during the Bush administration. Since its
publication there has been an outcry at the CIA’s practice of torture, its
authorization by leading government officials and the resulting impunity; it is
disrespectful to the essence of the prohibition on torture as a jus cogen in
international law let alone the domestic prohibitions within the United States
of America. As well as the attempts by officials and academics alike to justify
the practice of torture following 9/11, the human rights of the detainees
suffering under enhanced interrogations and extraordinary renditions are
diminished and overridden by the need to protect national security.
This dissertation seeks to highlight the unjustifiable
utilization of torture in the War on Terror for the sake of national security
and at the cost of an individual’s human rights. Whilst it has been nine years
since George W. Bush’s presidency ended, his administration’s authorization of
torture on detainees remains a dark part of his presidential legacy that should
not be forgotten. Particularly now when President Donald Trump has appointed
Gina Haspel as the new director of the CIA despite her previous criteria in
running a ‘black site’ in Thailand,
there is an unease that America has not learnt from the mistakes of Bush
and his associates. Therefore, as this dissertation sets out to do, it is
necessary to acknowledge the unjustifiability of the practice of torture during
this period known as the War on Terror in order to prevent reoccurrence.
Prior to critiquing the practice of torture, it is essential
to understand how it is perceived by international law; therefore, chapter one
will focus on how torture is legally defined. To promote clarity, the chapter
will focus on the European Convention on Human Rights and its subsequent case
law. The three main definitional elements of torture will be explored with
reference to case law heard in the European Court of Human Rights; these three
elements are severity, purpose and the prohibition’s absolute nature. The
purpose of this chapter is to highlight the jus cogen status attached to the
prohibition on torture in a portion of international law that resonates
worldwide through various treaties and legal mechanisms. In analysing the unjustifiability
of the practice of torture by the Bush administration it is crucial to
understand how the law perceives torture to begin with.
Chapter two will focus on the central aspect of this
dissertation; the unjustifiability of torture in the War on Terror. After first
outlining the domestic and international measures banning torture that are
applicable to America, the justification for the use of torture in the War on
Terror will be critically analysed. The primary focus of the justification will
be the ‘ticking time bomb’ scenario in association with the necessity defence.
Countering this, the unjustifiability of practicing torture will be critically
considered through a legal and moral lens. In doing so, torture’s status as a
crime against humanity  resonates strongly even in the face of America’s
established justifications for its practice.
In chapter three the focal issue will be accountability in
regards to the Bush administration’s approval of torture. Past attempts at
holding officials accountable will be considered as well as the potential for
future endeavours in pursuing accountability. Subsequently, the proposals of an
extra-legal action model and torture warrants system that bring accountability
into state practice and the judiciary respectively will be critically
This dissertation is primarily a socio-legal analysis based
on desktop research albeit chapter one focuses on a doctrinal analysis of
Article 3 of the European Convention on Human Rights and the resulting European
Court of Human Rights case law. In its analysis, a range of primary and
secondary sources have been considered and used to aid this dissertation. Over
the course of the three chapters, a collection of cases have been evaluated
from a number of jurisprudences such as, for example, the United States of
America and the European Court of Human Rights in Strasbourg in a demonstration
of how torture has been approached by the judicial system. The inclusion of
certain treaties and legislation that deal with the prohibition of torture have
also been examined, such as the Universal Declaration of Human Rights 1948 and
the United States of America Constitution, in a bid to emphasise how the
prohibition on torture is enforced both internationally and domestically. This dissertation
has also considered a range of academic opinion in the form of literature and
articles on the issue of torture’s justifiability and its underhand practice
during the War on Terror.
Chapter One –
Legal Development in Defining Torture
‘…it is precisely in
times of crisis that absolute values must remain uncompromised’ – European
Court of Human Rights. 
On the subject of torture, humanity is at its most
hypocritical. Whilst universally condemned no regime will admit to its
practice, a factor in this being differing opinions on what actually
constitutes torture. Since the creation of the Universal Declaration of Human
Rights in 1948, defining torture has been a source of growing debate albeit
there is no shortage of materials to help establish its meaning. In Article 1.1
of the United Nations Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment 1984 torture is specified to entail:
‘any act by which severe pain or suffering, whether physical
or mental, is intentionally inflicted on a person for such purposes as
obtaining for him or a third person information or a confession, punishing him
for an act he or a third person has committed or is suspected of having
committed, or intimidating or coercing him or a third person, or for any reason
based on discrimination of any kind, when such pain or suffering is inflicted
by or at the acquiescence of a public official or other person acting in an
official capacity. It does not include pain or suffering arising only from, inherent
in or incidental lawful sanction.’ 
What is clear from this classification is that central to
defining torture are the elements of severity and purpose. These, coupled with
the absolute nature of torture’s ban, have proved to be key features throughout
both case law and variant definitions of torture and will subsequently be
discussed in this chapter. I will first discuss the element of severity which
has proved to be subjective and fact specific from case-to-case; the threshold
has advanced since the landmark yet controversial ruling in Ireland v United
Kingdom.  Second, the purposive element will be analysed with interrogation
emerging as the common purpose behind torture. Finally, I will focus on the
absolutism of the ban on torture and the difficulty it has encountered when
national security is at risk. In seeking
clarity and precision, I will focus the discussion on case law arising from
alleged breaches of Article 3 of the European Convention on Human Rights  as
decided by the European Court on Human Rights. 
It was not until 1969 that the European Commission of Human
Rights  was confronted with an inter-state application focusing on Article
3. In the Greek case , the Commission presented a formula of component parts
regarding torture in an application that claimed that Greece’s security forces
had been systematically abusing detainees. Here, the Court deemed torture to be
purposive inhuman and degrading treatment, however not all inhuman or degrading
treatment will be torture ; it is apparent that the element of severity
will be the decisive component between both torture and ill-treatment.
The landmark Ireland v United Kingdom  case began to
flesh out the Court’s understanding of torture; it concerned whether the ‘five
techniques’  constituted a breach of Article 3 of the Convention.
Controversially, the Court concluded that these techniques ‘undoubtedly
amounted to inhuman and degrading treatment’  but not torture; any
treatment complained of must ‘attain a minimum level of severity’  if it is
to even be contrary to Article 3. From the onset, the Commission withheld
setting a ‘specific severity threshold’ to measure acts that would constitute
torture.  Rather, the severity analysed by the courts is circumstantial and
relative in that it is examined subjectively in regards to the particular
recipient of the treatment.  This conditional nature of severity is
exemplified in the judgment of Wijeyasiriwandene v Inspector of Police, Kandy
 wherein the punching of a 16 year old athlete by a police officer was
ruled to be a justifiable, albeit excessive, use of force. M.D.H. Fernando J
explained that if such force had been directed at a frail elderly woman it
would be viewed cruel by the judiciary and perhaps qualify as inhuman
As exhibited in Donnelly and others v United Kingdom  it
is extremely difficult to prove that a state is systematically failing to
comply with Convention obligations given there is a high threshold of hard
evidence to satisfy.  Disgracefully, the treatment the applicants in
Ireland  were subjected to was not a new development in the British
military’s tactics. In fact, as the Parker Report notes, the British army had
used the same interrogation techniques in previous campaigns in Kenya,
Palestine, Malaya and particularly Cyprus wherein Greece similarly raised
allegations of Article 3 violations against the United Kingdom in regards to
the treatment of detainees by British forces. Brian Simpson has considered
Ireland  to be the peak in the U.K.’s ‘lamentable’ failure of the
Convention and indeed it was regrettably a lost opportunity by the Court to
condemn and make an example of the U.K. for similar states to evaluate, and
perhaps reform, military tactics. 
Emerging into the 21st Century, it appears that
the Court has come to regret its previous decision in Ireland  with its
judgment in Selmouni v France  that involved the applicant claiming he had
been subjected to torture in a breach of his Article 3 rights during three days
of custody following arrest by French police. The Court took into
consideration that the Convention is a ‘living instrument which… must be
interpreted in the light of present day conditions’; a principle outlined in
Tyrer v United Kingdom  which ruled corporal punishment to be degrading
treatment in breach of Article 3.  Utilizing this principle, the Court
determined that certain acts which initially were not considered to be torture
but rather inhuman and degrading treatment ‘could be classified differently in
the future’.  This formula of severity and purpose should be ‘elastic and
capable of evolving interpretation overtime’. Given the continuous requests
that the Court revise its judgment in Ireland , it would be intriguing to
see if this is applicable to this case’s circumstances.
Throughout history, the purpose of torture was undeniably to
inflict punishment and act as a deterrent regarding certain criminal acts. Whilst the Canadian Supreme Court still
associates torture primarily with punishment , in the 21st
Century it is more predominantly considered to serve as an interrogation
technique.  Despite a collection of legislative frameworks supposedly
monitoring the prohibition on torture, according to Juan. E. Méndez they have
had minimal impact in reducing the practice of torture during interrogations.
 A variety of factors have fuelled the exercise of torture in
interrogations. For example, as Méndez has explained, the assumption that
coercion is necessary as means to obtain vital information is an ideal still
upheld within society.  Despite popular belief it is effective, evidence
obtained through torture, as discussed in Othman (Abu Qatada) v United Kingdom
, is incredibly unreliable and unfair ; in the majority of situations
victims will resort to admitting anything as a means of ending their torturous
treatment. As stated in Gäfgen v Germany , any evidence gathered through a
breach of Article 3 ‘should never be relied on as proof of the victim’s guilt,
irrespective of its probative value’ ; the court’s prohibition of utilizing
evidence obtained through torture is fundamental. 
Returning to Ireland , whilst the Court acknowledged
severity the ‘purposive element’  was overlooked despite being previously
established in the Greek case ; in this case, the Commission outlined that
torture was essentially ‘inhuman treatment, which has a purpose’ such as
punishment or obtaining information. It can be assumed from this definition
that the purposive element of torture is prime and solely considered.
Intriguingly in Ireland  the Commission reached a polarising decision to
that of the Court. As Judge Zekia iterates, the Commission reached ‘a unanimous
conclusion’ that the ‘five techniques’ amounted to a breach of Article 3 of the
Convention and were considered as torture. For the Commission the decisive
factor was purpose;
‘The Commission sees in them a modern system of torture
falling into the same category as those systems which have been applied in
previous times as a means of obtaining information and confessions’. 
This emphasis on purpose is endorsed by Manfred Nowak as a
decisive factor along with the powerlessness of the victim ‘rather than the
intensity of the pain or suffering inflicted’ ; the purposive element
provides accuracy in the ‘account of the phenomenon of torture’.  In recent
cases, the Court has demonstrated a consistency in identifying severity and
purpose collectively when determining whether inhuman treatment amounts to
torture. For example, in Menesheva v Russia  where the applicant brought
proceedings against the police for ill-treatment by way of physical violence,
the Court held that having regard to its purpose and severity, the
ill-treatment at issue ‘amounts to torture’.  Similarly in Mikheyev v
Russia  the ill-treatment the applicant faced in police custody was
concluded to be torture by the Court in view of its ‘severity and purpose’.
3. Absolute Nature
Judge Cançado Trindate outlined that “torture is absolutely
prohibited in all its forms” , reinforcing what a variety of domestic and
international legislation has codified regarding the nature of the ban on
torture. For example, in the U.K. under section 134 of the Criminal Justice Act
1988 it is an offence for any public official to ‘intentionally inflict severe
pain or suffering on another in the performance…of his official duties’. 
Known as a peremptory norm, this absolute ban is a fundamental principle of
international law from which there is no derogation. Jeremy Waldron emphasises
that the prohibition of torture is not a mere rule but rather an underpinning
feature of the legal system. This status has been supported by the
International Court of Justice who view the prohibition of torture as part of
customary international law  as exhibited in, for example, Article 3 of the
During the Convention’s drafting there existed no
controversy in relation to the absolute nature of Article 3, unsurprisingly so
in the wake of the inhuman atrocities committed during World War II. In the
Nuremberg trials that followed World War II, it was acknowledged that there
could be criminal liability under international law for certain crimes. 
Article 15(2) of the Convention which prohibits any derogation cements its
absolute nature in any circumstances including times of war and when national
security is threatened; the latter sparking considerable debate as exhibited in
Chahal v United Kingdom.
In Chahal  the applicant was under imminent threat of
deportation to India from the U.K. for reasons of national security under
section 3(5) Immigration Act 1971. Following Soering v United Kingdom  it
emerged that Convention states are obligated to consider the ramifications of
extradition of an individual to a third country, particularly where treatment
will occur that breaches the Convention; therefore there existed a strong
precedence against extradition when there is the risk of a breach of Article 3.
Consequently in Chahal , the court stressed the absolute nature of Article
3 in rejection of the U.K. Government’s suggestion that when national security
is at risk there should be an implied limitation to Article 3 to allow
derogation. Henceforth the conduct of the victim and the nature of the alleged
offence  committed are irrelevant under the scope of Article 3, a fact that
various governments struggle to accept in a modern society rife with terrorism.
Yet, as the court emphasises in Aksoy v Turkey , in such circumstances
torture is prohibited in ‘absolute terms’ ; there is no room for
Judge Myjer in Saadi v Italy , which reinforced Chahal,
 emphasised the absolute nature of torture’s prohibition when national
security is at risk. In protecting national security it is not a ‘free-for-all’
when it comes to constructing and implementing counter-terrorism measures;
there are limitations that need to adhere to overarching rights and principles
such as the prohibition on torture. For Judge Myjer, upholding human rights
such as Article 3 is ‘first and foremost a matter of upholding our values, even
with regard to those who seek to destroy them’; an absolute nature has no room
for states to make exceptions where it suits, even in matters regarding
In relation to cases involving a potential breach of Article
3 of the Convention, states cannot rely upon the doctrine of the margin of
appreciation for support. Fundamentally, this is a means to provide ‘room for
manoeuvre’ by the Court to State authorities in fulfilling Convention
obligations. However, it has never been invoked by the Court in regards to
cases alleging breaches of Article 3, albeit Judge O’Donoghue implied that the
Court applied the doctrine in Ireland  due to ‘fraught internal conflict in
Northern Ireland’ at the time.  According to Judge O’Donoghue the use of
‘in favour of the
respondent Government has been treated by the Court, in my opinion, as a
blanket exculpation for many actions taken which cannot be reconciled with
observance of the obligations imposed by the Convention’. 
According to Antony Cullen, this margin illuminates the
different reasoning between the Court and the Commission. If the Court were
to employ the doctrine of the margin of appreciation in Article 3 cases there
would be a notable ‘variance with the absolute and universalist spirit’ of the
provision; consequently, its practice would generally undermine the unqualified
nature of the prohibition on torture. 
This chapter discussed how the Court’s jurisprudence
regarding Article 3 has cultivated in two core factors in defining torture; it
is purposive treatment of a ‘minimum level of severity’ that encompasses either
‘actual bodily injury or intense physical or mental suffering’. Through
Strasbourg’s jurisprudence, it has become apparent that Convention states have
difficulty in accepting this unconditional element of the prohibition of
torture particularly when national security is involved as was exhibited in
Chahal ; however, the Convention prevails against the appeals of State
In 2000, the Court finally spoke out to condemn the treatment
by the U.K. to detainees in Northern Ireland; however, the decision in Ireland
 remains. It is this case’s judgment that was used by the George W. Bush
administration as an authority for their proposal that ‘certain interrogation
practices would not contravene the ban on torture in international law’.
This administration’s malpractice in justifying their use of torture during the
War on Terror will feature in the next chapter.
Chapter Two – Is
Torture Justified in the War on Terror?
‘…the use of torture
compromises that which most distinguishes us from our enemies, our belief that
all people, even captured enemies, possess basic human rights’ – John
Since the War on Terror commenced on September 11th
2001, the definition of torture discussed in Chapter 1 has been under threat.
Governments have attempted to constrict its legal meaning to provide leeway for
torturous interrogational methods  whilst simultaneously seeking to
diminish its absolute nature in order to create an exception for terrorists who
endanger national security. This chapter will focus on whether torture can be
justified in protecting national security in the War on Terror or whether it is
unjustifiable given the detriment it causes for an individual’s human rights.
will discuss how governments have responded to the War on Terror regarding
counter-terrorism policies that include the practice of torture; my focal point
will be on the United States of America albeit European states’ complicity will
be acknowledged. Then I will critically analyse how justifiable it is to use
torture in these circumstances which threaten national security. I will focus
primarily on the ‘ticking time bomb’ scenario along with the necessity defence.
Finally, I will discuss the unjustifiability of torture from a legal and moral
Given the European Convention on Human Rights  is not
applicable in America, there are domestic law measures that uphold the ban on
torture which were in place prior to September 11th 2001. This
includes the 8th Amendment to the United States Constitution which
‘Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted’.
Whilst not directly mentioning torture, the US Supreme court
has confirmed that torture falls under its scope.  The War Crimes Act 1996
extends to international law and criminalises breaches of the Geneva
Conventions; ironically this legislation’s purpose was to prosecute North
Vietnamese soldiers who had tortured U.S. soldiers during the Vietnam War. This includes Article 3(1) (a) of the Geneva
Conventions 1949 that outlined the prohibition of;
‘violence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture’.
The U.S. is also a party to the United Nations Convention
against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
1984 as well as being a drafter of the Universal Declaration of Human Rights
1948 which banned all forms of torture. However in the wake of destruction
caused by Al-Qaeda on 9/11 the authority of such legislative measures faded for
the government when national security was imminently at risk.
point America appeared to be the international figurehead in human rights yet
from the outset of 9/11, the Bush administration experienced repression by
international law’s restrictions. Richard Clarke  quoted Bush to have
declared immediately after 9/11; ‘I don’t care what the international lawyers
say. We are going to kick some ass.’  With a dismissive attitude towards
international law, in August 2002 the ‘torture memos’ were signed and drafted
by Assistant Attorney General Jay Bybee and Deputy Assistant Attorney General
John Yoo that advised the CIA and the U.S. Department of Defence about enhanced
interrogation techniques that, despite being widely regarded as torture ,
could be legal under an expansive interpretation of Bush’s role as
Commander-in- Chief  in the War on Terror. As a result, detainees held in
Guantanamo Bay and CIA black-sites  were subjected to enhanced
interrogation which involved physical and psychological techniques similarly
practiced by U.K. forces in the case Ireland v UK  and by Israeli security
forces  in the 1990s.
The Bush Administration was notably aided by allies in
Europe in the fight against terrorism. For example, the U.K.’s Special Forces
have aided the CIA in renditions and secret detentions as well as adopting a
‘good cop bad cop’ approach in regards to interrogating detainees. 
Countries such as Poland , Italy  and Romania  have also been
complicit in the CIA’s extraordinary renditions as discovered by the European
Court of Human Rights  in various cases. The Convention’s obligations that
bind these European states make their association with the fight against terror
by means of torture all the more shocking.
The emphasis on interrogational methods contrasts to past
conflicts because the War on Terror relies heavily on intelligence rather than
‘brute force’. For example, Syrian-born Canadian Maher Arar was the subject
of a U.S. extraordinary rendition in September 2002. For 12 months he was
detained and tortured in Syria before Canada diplomatically intervened; upon
his release, the Syrian Ambassador in Washington stated there were no links
between Arar and terrorism. Despite pursing legal action against the officials
involved, in Arar v Ashcroft  Judge David G. Trager prioritised national
security over Arar’s human rights;
‘On the other hand, a judge who declares on his or her own
Article III authority that the policy of extraordinary rendition is under all
circumstances unconstitutional must acknowledge that such a ruling can have the
most serious consequences to our foreign relations or national security or
The prioritisation of national security over human rights as
exhibited in this single example has proved to be a consistent theme throughout
the War on Terror with the illicit practice of torture. Yet perhaps what is
most shocking is not that torture was used ‘but that it was being defended’.
With terrorism igniting a ‘moral panic’  in the
societies of America and her allies, it was not difficult to make the concept
of an absolute prohibition on torture when national security was at risk look
preposterous. In an internal struggle of national security against human
rights, it appeared that the former was receiving more support. After all, as
Henry Shue iterates, security is necessary in order to enjoy one’s rights:
‘Without security or subsistence one is helpless… Therefore,
security and subsistence must be socially guaranteed, if any rights are to be
To protect security, the Bush administration determined that
certain detainees must be deprived of their rights granted by the Geneva
‘Under Article 4 of the Geneva Convention, however, Taliban
detainees are not entitled to prisoner of war status…Al Qaeda is an
international terrorist group…its members…are not entitled to POW status under
Denying these detainees their rights is a subtle yet
effective method of dehumanizing the supposed ‘enemy’; of creating an ‘us
versus them’ approach that the Bush administration promoted from the start;
‘You are either with us or you are against us in the fight against terror’.
In creating a separate class for these detainees, by ‘othering’ them, there is
an ease with which the government and public can regard them indifferently in a
state of Nelsonian blindness;
‘We live in times where people, in [the USA] and in so many
other supposedly “civilised” nations, are so filled with primal fear that they
look on with apparent indifference at the possibility of extreme maltreatment
of their presumable enemies – indifference, indeed, at the evidence and
televised images of this sort of maltreatment’.
This state of ‘Nelsonian blindness’  encapsulated
America and Western Europe in the aftermath of 9/11. Whilst it is difficult to
ever consider torture with ease, this indifference enables a blind eye to be
turned towards the practice of torture and to focus on the need to prioritise
national security; a significant portion of justifiability for this use of
torture is afforded by states in this manner.
Dershowitz purported that torture may be a justifiable method by the Bush
administration given its purpose to extract information that could lead to the
immediate saving of lives and national security ; this is an application
of the ‘ticking time bomb’ scenario  which states have saturated their
counter-terrorism policies in. It is in this specific scenario that Jeremy
Bentham believed torture should be allowed as the ‘lesser of two evils’ for the
purpose of gathering intelligence; the individual’s interests are trumped by
those of the public. However, with consistent intelligence gathering by
means of torture, the reliance on the ‘ticking time bomb’ case is fundamentally
flawed. Most terrorist experts admit that the supposed scenario rarely occurs
in reality  yet the Bush administration appeared to visualise the War on
Terror as an endless ‘ticking time bomb’; this hypothetical situation turned
into a potential daily occurrence for state officials to protect national
justifying the utilization of torture in this situation, governments may invoke
the necessity defence:
‘If torture provides the last remaining chance to save lives
in imminent peril, the necessity defense should be available to justify the
This defence was mentioned in the ‘Torture Memos’ as a
justification for US interrogation methods on Taliban and al-Qaeda suspect
‘It appears to us that under the current circumstances the
necessity defense could be successfully maintained…Clearly, any harm that might
occur during an interrogation would pale to insignificance compared to the harm
avoided by preventing such an attack, which would take hundreds or thousands of
The Bush administration applied this defence to, for
example, extraordinary renditions as demonstrated by the case El-Masri v The
Former Yugoslav Republic of Macedonia  wherein CIA agents transferred
El-Masri to a black-site in Afghanistan where he was tortured, as the Court
discovered, for four months. It is estimated that the CIA, working with other
intelligence agencies, captured 3000 people between 2001 and 2005  for the
sake of necessity; yet, like El-Masri, many detainees were found to be
innocent. This risk of innocence, however, is necessary and ‘the lesser of two
evils’ for state officials when faced with an emergency situation that
threatens the lives of hundreds of civilians;
‘The interests of the society may sometimes be so deeply
involved as to make it right to punish an innocent man ‘that the whole nation
The Israeli Supreme Court authorised the retrospective
application of the necessity defence to Israel Security Agency interrogators
who utilised physical interrogation methods in a ‘ticking time bomb’ scenario
; albeit this was limited to certain circumstances and the defence is not
guaranteed to succeed. For the Bush Administration to rely on necessity goes
against the principle of the defence;
‘The defense of necessity does not define a code of primary
normative behaviour. Necessity is certainly not a basis for establishing a
broad detailed code of behaviour such as how one should go about conducting
intelligence interrogations in security matters…’.
Likewise in English common law whilst the necessity defence
is acknowledged its application is rarely successful  albeit case law is
absent on the availability of the defence regarding the practice of torture
concerning terrorists. Similarly, the International Criminal Court lacks
any such jurisprudence and if it were to uphold the defence in such
circumstances it would be by an ‘extremely narrow margin’ and only in an
‘excusatory form’ as opposed to a justification.
‘If you don’t violate someone’s human rights some of the
time, you probably aren’t doing your job’.
According to Michael Walzer obtaining ‘dirty hands’ is
inevitable in politics; one can do the right thing in a certain situation for
the national interest even if it results in the loss of one’s moral innocence.
 Political leaders, such as Bush and former U.K. Prime Minister Tony
Blair, hold a deep sense of responsibility for national interests and security
that spurs them to go beyond their moral, and legal, duties.  It is a
political necessity as opposed to a moral necessity that drives such leaders
to, for example, practice torture in circumstances such as ‘the War on Terror’.
This pertains to the Machiavelli perspective that political necessity, although
not always absolute, can override moral norms.  However for Walzer what is
immoral is more so the denial of ‘dirty hands’; accountability  is
particularly essential to permit the immoral act by means of political
‘If he were a moral man and nothing else, his hands would
not be dirty; if he were a politician and nothing else, he would pretend that
they were clean’. 
In El-Masri  the Court became the first to deem the
CIA’s rendition methods as amounting to torture; any attempts to justify such
techniques are irrelevant in Strasbourg as there is an equal amount of
rationale to dissuade any prioritisation of national security over human
rights. The most blatant reason is the prohibition on torture’s place in law.
Although its role is heavily debated, there is an undeniable influence from
morality on the law and a clear consensus between law and ethics that torture
is wrong. As Lord Coleridge CJ
stated in R v Dudley and Stephens ;
‘Though law and morality are not the same, and many things
may be immoral which are not necessarily illegal, yet the absolute divorce of
law from morality would be of fatal consequence…’
In torture debates there are not claims that it is a good
practice; at the most, there are claims that torture is the ‘lesser of two
evils’ henceforth acknowledging its immoral evil nature. In diminishing an
individual’s human dignity and autonomy, the immorality of torture creates a
challenge from the onset for governments to justify its practice. Yet, torture
is visualised by states as morally permissible given its status as the lesser
of two evils in a ticking time bomb scenario. However, to claim a moral right
to torture detainees in order to ‘extract military necessary information’ that
upholds national security enforces a precedent that others may use. For
example states such as Egypt, China and Pakistan have followed America in
invoking the War on Terror as a justifiable circumstance to abuse prisoners and
Muslim minorities ; there is a danger of slippage.
ignorance of the illegality of torture also proves to be detrimental to the
‘Rule of Law’ which, in part, promotes that nobody is above the law. As Jeremy
Waldron highlights the rule of law does not ‘favour freedom or unregulated
discretion for the government’ but rather institutions must ‘bend over
backwards’ to ensure legality and the rule of law are ‘honoured’. Instead,
institutions have tarnished it by working above the legal system, an example
being Bush’s position as Commander-in-Chief that deemed international
legislative restriction on torture practice to be unconstitutional given its
constraint on Bush’s power in this role. Blair has insisted the U.K.
abides by the rule of law; ‘All I know is that we should keep within the law at
all times…” However, whilst more subtle than the U.S., this is not the
case. For example, the British government adopted measures  to ensure
either key aspects of cases were heard in secret or that cases were ruled
completely non-justiciable. The lengths governments go to conceal the
practice of torture  and the wide consensus in opposition to it is an
indication that it is an unjustifiable practice.
proclaiming that torture is justifiable for protecting national security, state
bodies are contradicting the volume of case law that has emerged since the War
on Terror began. In Hamdan v Rumsfeld  the U.S. Supreme Court essentially
overruled the Torture Memos in stating that Article 3 of the Geneva Conventions
was applicable to all detainees in the War on Terror. In Strasbourg, the
Court has openly condemned U.S. rendition practice as first witnessed in
El-Masri  in a ‘comprehensive condemnation of the worst aspects’ of CIA
tactics that were endorsed by allying governments. Essentially the
practice of torture, taking into consideration the vast body of case law discussed
in Chapter 1, is unjustifiable due to its position as a jus cogen in law;
‘Thus, torture mocks the law, using punishment to gather
evidence to justify the punishment already inflicted, rather than using
evidence to justify punishment’.
‘potential’ terror suspects there is blatant unjustifiability in the lack of
certainty regarding their guilt. In various cases, the suspect is completely
innocent as exemplified in Al-Nashiri v Poland , wherein the applicant was
the victim of a joint US-Polish rendition, and undeniably this is a ‘formidable
moral barrier’ to torture practice. Cesare Beccaria identifies this as a
fundamental flaw central to attaining confession by means of torture;
‘If he be not guilty, you torture the innocent; for, in the
eye of the law, every man is innocent, whose crime has not been proved’.
Contemporarily it is common to divert focus on the act of
torture to its consequences; the victim is treated as a means rather than an
end. The victim’s humanity is undermined and their autonomy is disrespected; in
Kantianism torture is extremely wrong in how it utilises an individual ‘as a
mere means to purposes’ they do not reasonably share. The practice of
torture is self-incriminating and forces an individual in collusion with the
torturer against themselves in a manner that violates their
right to the presumption of innocence. 
uncertainty of guilt directly links to the questionable efficiency of torture.
In the War on Terror the primary purpose of practicing torture is to illicit
valuable intelligence from the suspect; however such information can be
‘misled’ when the suspect is ‘innocent or holds a grudge’.  For example,
only 0.06% of the 5000 detainees captured between 9/11 and the publication of
Abu Ghraib photographs were charged; an incredibly low success rate to support
the efficiency of torture. In fact, there are suggestions by U.S.
commanders that treating detainees with dignity is more effective in gathering
intelligence  yet, proof of this method is also elusive. However, Richard
Posner highlights that torture’s inefficiency should not be dismissed as
‘…it is hard to believe that it is always and everywhere
ineffectual; if it were, we would not have to spend so much time debating it’.
The common practice and debate of torture, therefore,
provides opposition to the suggestion that its practice is ineffective.
This chapter focused on the debate as to whether torture can
be justified in the War on Terror. In arguments justifying its practice the
‘ticking time bomb’ scenario is central and supported by the necessity defence,
as promoted by America, as well as a trend of Nelsonian blindness and the idea
that immoral actions are inevitable in politics; the protection of national
security is vital. However, there is a strong moral and legal argument to
counter the justifiability of torture given its jus cogens position in
international law and its detrimental impact on the human rights of those
affected by torture.
a doubt, torture is a crime against humanity that has had devastating
consequences for individuals who have suffered under it; such infliction of
trauma must be deterred from repeated future use. An effective method of deterrence
is establishing accountability and promoting prosecution of those culpable. The
struggle for accountability of the Bush administration’s utilization of torture
will be the primary focus in the next chapter.
‘This long overdue
message that no one is above the law is particularly important now, as the
Trump administration…embraces the war with no plan in sight’ – Katherine
Following his inauguration, President Barack Obama issued
executive orders to ensure interrogations occurred lawfully  and to close
Guantanamo Bay within the year. However, as opposed to law passed by
Congress, executive orders can be overturned by successive presidents; they
lack the weight of change that accompanies the law. By choosing to merely
renounce further practice of torture and not acknowledge that which occurred
under the Bush Administration, the Obama Administration gave rise to impunity
and undermined ‘the universality of the prohibition on torture’.
chapter will focus on, having underlined the unjustifiability of torture,
accountability in the ongoing War on Terror’s utilization of torture. Primarily
I will focus on how accountability has, and currently is, being pursued.
Second, in considering future alternatives for accountability, I will explore
the extra-legal action model of handling a breach of the torture prohibition.
Then, I will analyse the controversial proposal of torture warrants by Alan
Deshorwitz as a means to regulate torture practice.
Following a wave of disrespect by the Bush Administration
and allies throughout the War on Terror, the prohibition on torture’s absolute
nature has been heavily targeted. Whilst it retains its peremptory norm
position in law, its influence has been weakened by arguments such as the
‘ticking time bomb’ scenario; however, torture’s unjustifiability remains
concrete. In this post-Bush era, attention must be directed towards reinforcing
the absoluteness of the torture prohibition in order to prevent a repetition of
its inhumane practice. According to Juan. E. Méndez, accountability is
‘critical to preventing the recurrence of human rights violations’.
accountability has not been achieved at length regarding the use of torture
during the Bush administration. In fact, impunity has characterised America
with minute consequences for the CIA and none for government officials. As the
International Criminal Court has noted;
‘no national investigations or prosecutions have been
conducted or are ongoing against those who appear most responsible for the
crimes allegedly committed by members of the CIA.’ 
In its report, the Senate Intelligence Committee noted that
the CIA failed to implement appropriate corrective actions when dealing with
unauthorized interrogation techniques. For example, CIA Headquarters opted
against disciplinary action of an officer for the death of a CIA detainee as he
had been ‘motivated to extract any and all operational information’. Furthermore
following an inquiry into the death of detainee Gul Rahman CIA management
dismissed recommendation of accountability on the grounds that it was
‘inappropriate’ for a junior officer to be punished for following orders ;
this contradicts the fourth Nuremberg principle;
‘The fact that a person acted pursuant to order of his
Government or of a superior does not relieve him from responsibility under
international law, provided a moral choice was in fact possible to him’.
Evidentially in circumstances of accountability, the stake
of national security appears to take precedence over an individual’s human
Yet, the ‘real rule of law harm’ did not arise from CIA
officers’ torture practice but rather from government officials who paved the
way for such conduct. Coincidentally those in positions of power during
the Bush Administration either retired or departed office along with Bush;
nobody was forced from their position as a repercussion for their immoral
actions. In their impunity, there is a ‘denial of truth’, a ‘hiding’ of
responsibility and an ‘absence of justice’.  In committing universal
crimes akin to the practice of torture there is ‘no possible refuge’ for
conspirators except for government officials who will suffer the consequences
of vilification and nothing more. Nevertheless, for the sake of human
rights, this is not an acceptable level of accountability for committing a
crime against humanity. The essence of this was noted in the third Nuremberg
‘The fact that a person who committed an act which
constitutes a crime under international law acted as Head of State or
responsible Government official does not relieve him from responsibility under
international law’. 
This principle of command responsibility is domestically
present in U.S. law as a precedent in re Yamashita.  This case involved
the prosecution, and eventual execution, of Japanese General Tomoyuki Yamashita
whose troops had committed crimes against humanity against prisoners of war and
the civilian population of the Philippines. Whilst Human Rights Watch cites
Donald Rumsfeld as being liable under this principle , given Bush’s role
as Commander-in-Chief during his presidency, there is potential for liability
under this principle for his involvement in authorizing the torture of US
accountability against state officials is not impossible, for example, former
Chilean dictator Augusto Pinochet was indicted for human rights violations by
Baltasar Garzón , however attempts regarding the Bush Administration so
far have been fruitless. For example, the district court of Columbia dismissed
the case of Ali v Rumsfeld  which was brought on behalf of nine men
subjected to torture on the command of Rumsfeld. The district court held that
U.S. officials were immune from lawsuits regarding actions that fell ‘within
the scope of their official duties’.  Similarly, the Ninth Circuit Court
of Appeal dismissed Padilla v Yoo  and granted Yoo ‘qualified immunity’
given that Padilla’s alleged treatment was not clearly established in 2001-2003
to amount to torture. 
accountability has been actively sought by various European domestic courts
albeit with little success. Under Belgium v Senegal  the International
Criminal Court of Justice confirmed that states party to the UN Convention
against Torture were burdened with an obligation to prosecute or extradite
alleged perpetrators to another country with jurisdiction for prosecution.
 In this case, Belgium sough to compel Senegal to prosecute Hissène Habré,
the former President of the Republic of Chad, or otherwise extradite him to
Belgium for prosecution of alleged torture practice and other crimes against
humanity. Lawsuits instigated by Belgium, Germany and even Britain for breaches
of the prohibition on torture prior to 20th January 2009 were
dismissed primarily due to Bush’s continuing Presidential position. However, in
November 2017 the Chief Prosecutor of the International Criminal Court, Fatou
Bensouda, filed a request to investigate the alleged crimes against humanity
and war crimes committed in Afghanistan;
‘The information available provides a reasonable basis to
believe that…members of the U.S. armed forces…and…the CIA have committed the
war crimes of torture and cruel treatment…’ 
Though currently in
the preliminary examination stage , the authorisation of this case would
bring the U.S military and CIA’s torturous tactics under overdue international scrutiny.
Although the U.S. is not a state party to the ICC , Afghanistan is which
henceforth allows the ICC to assert jurisdiction over any crimes that occurred
in Afghanistan’s territory.
Speculating potential accountability and its necessity can appear
to be passive in targeting the breach of a jus cogen by governments, therefore
there has been suggestions of bringing accountability into the state practice
or the legal system through, respectively, an extra legal action model and
Extra Legal Action Model
In politics obtaining ‘dirty hands’ is inevitable 
particularly in exceptional circumstances as proposed by the ‘ticking time
bomb’ scenario. It is unquestionable that the government official has violated
the law; what remains an issue is the accountability the official must face for
acting extra-legally. Embracing realism, the extra-legal action model
acknowledges that the use of torture in some cases can be inevitable however
its corrupt nature remains imperative. According to Oren Gross, this model
requires a government official to publically acknowledge they practiced torture
and consequently broke the law.  As a result, the public must participate
in a ‘process of appraisal’ regarding the official’s actions and whether
accountability or a pardon should occur.
method’s appeal lies behind the absence of judicial involvement; a ‘clean’
judicial system is promoted and the judiciary can ‘fulfil its role as protector
of individual rights without having to fear that by doing so it compromises the
security of the state’. Importantly, the absolute ban on torture remains
implemented which is crucial in preventing slippage. The practice of torture
‘thrives’ when placed beyond the law  and any ease in its jus cogen status
would catalyse a slippery slope of decline in the prohibition of torture. There
is always going to be an attraction to further broaden the scope of torture
practice to the point that the ‘ticking time bomb’ scenario is just one of many
circumstances that is an exception to the law that is no longer a peremptory
norm; ‘when torture is no longer unthinkable, it will be thought about’.
However, diminishment of absoluteness can also occur through choosing to pardon
an official’s actions. This could result in ‘official illegality’ becoming a
‘precedent’ for officials who find themselves in certain circumstances that
pose a risk to national security. 
primary issue with the extra-legal action model is the involvement of the
public who, according to David Dyzenhaus, Gross anticipates to engage in
‘genuine democratic deliberation’; therefore the public’s
perspective of torture practice is crucial. It is difficult to imagine a
majority not acknowledging torture as inhumane and cruel, a ‘forced
self-betrayal’ of oneself, however, post-9/11 torture practice is viewed in a
different light for proportions of the public.  The influence of the media
dehumanising terrorist suspects and authoritative figures such as Bush,
Rumsfeld and, recently, current President Donald Trump promoting torture
undoubtedly shape the public’s perception of its practice:
‘I wanna keep our country safe…As far as I’m concerned we
have to fight fire with fire…We’re not playing on an even field’. 
Therefore there is no
guarantee of accountability given the public’s lack of consensus on a
perception of torture and absoluteness particularly in the face of threats to
national security. It is also unclear as to how the public will judge the
official’s actions; any poll or vote is unrealistic and impractical.
Cheryln Chang suggests that the decision should be finalised at the ‘highest
level possible’ of authority, ideally the courts , similar to the torture
In an outright rejection of absoluteness, Alan Deshorwitz
advocates the introduction of torture warrants as a means to regulate torture
in extreme circumstances under the judiciary’s supervision. In response to the
Landau Commission of Inquiry endorsing the necessity defence, Deshorwitz
proposed that the torture warrants model would provide ‘accountability,
record-keeping, standards and limitations’. Contrary to the extra-legal
action model, torture warrants actively prevent torture practice ‘below the
radar’; if the prohibition of its practice is cemented in law then so should
the regulation of its utilization in extreme scenarios.
to the public involvement in the extra-legal action model, torture warrants
directly involve the judiciary;
‘The essence of a democracy is placing responsibility for
difficult choices in a visible and neutral institution like the judiciary’.
In deciding whether to advocate the practice of torture or
not, judges are hereby complicit in the act itself; however, this can prove
difficult. As Sanford Levinson highlights, the late Justice Scalia, in relation
to capital punishment cases, stated that judges are complicit to the extent
that ‘if they hold a moral obligation against the act’ then they should not
chair the proceedings. Assuming the country’s highest court would hear
torture warrant proceedings, it is notable that in America the President
nominates and appoints justices of the U.S. Supreme Court; this is alarming
considering Trump’s positive approach to torture. For example, in April 2017
the Senate confirmed Trump’s nomination of Neil Gorsuch to the Supreme Court
following the death of Justice Scalia; in the past Justice Gorsuch fought the
disclosure of the Abu Ghraib photographs and defended the state’s extraordinary
rendition of Khalid El-Masri. In appointing justices like this, there is
potential for torture warrants to be provided with ease and normalised to the
detriment of all detainees’ human rights for the sake of protecting national
security; slippage is a very real danger that accompanies Deshorwitz’s torture
Practically, given time is precious in these emergency
scenarios, it is unlikely that the judiciary would be able to make ‘quick and
right decisions’ in such a short time frame  particularly given the need
to consider both human rights and national security in their deliberation. It
is difficult to imagine government officials waiting patiently for a judge’s
permission to torture especially when national security is at risk and given
the fact it has been practiced illegally consistently already. Finally,
judicial torture warrants would be damaging to the integrity and perception of
the legal system; it would be conflicting to the ‘genius and spirit’ of the
law. Integrating torture into the legal system is a common
feature of tyrannical governments  and would contravene the essence of
America as a democracy the ‘land of the free’.
The issue of accountability concerning the Bush
administration was the focus of this chapter. Various avenues have been
explored in seeking accountability for Bush and his associates however in
nearing seventeen years since the War on Terror began there is a distinct lack
of prosecution for practicing torture on detainees. Whilst the ICC offers a
glimmer of hope for the future, the likelihood of Bush himself being held
accountable is unlikely; realistically the CIA and U.S. military will face
prosecution. Suggestions of different avenues to approach accountability are
few and flawed with torture warrants contravening absolute prohibition and the
extra-legal action model, whilst better, is also flawed and undefined regarding
who undertakes an appraisal of an official’s actions. Broadly speaking,
transitional justice in accountability terms is failing in America where
impunity is rife, contradicting a principle of the United Nations:
‘It is the duty of every state under international law to
respect and to secure respect for human rights requires that effective measures
should be taken to combat impunity’.
‘There have been, and
are now, certain foreign nations…which convict individuals…hold them in secret
custody and wring from them confessions by physical or mental torture. So long
as the Constitution remains the basic law of this Republic, America will not
have that kind of government’ – Justice Black.
This dissertation has aimed to identify the unjustifiability
of torture practice in the War on Terror for the sake of national security and
at the cost of an individual’s human rights. As Chapter one indicates, the
prohibition of torture is an absolute right that is guaranteed regardless of an
individual’s actions; therefore it is applicable to detainees suspected of
terrorism. However, this jus cogen has been regularly breached and its
protection denied for detainees being held by the CIA and assisting
organisations who implore, as outlined in Chapter two, that their actions are
necessary in ‘emergency’ situations. Even more deplorable is the lack of
accountability that has been achieved, as explored in Chapter three,
particularly for those individuals who were wrongly detained or subjected to an
insistence that torture is necessary in ‘ticking time bomb’ scenarios is an
argument that has lost credibility in the War on Terror. The breadth of torture
committed by America goes beyond the rare emergency scenario first explored by
Bentham. Instead, it has been reduced to a regular potential event that has
saturated interrogations with torturous methods to the point of ‘normalisation’
as similarly endorsed by media outlets and various academics and politicians;
yet despite this, it ‘is still torture no matter how many steps we remove
ourselves from the interrogation room’. It is crucial to reemphasise the
prohibition of torture as a peremptory norm in order to prevent the U.S
government and allies, present and future, from committing the same atrocities
authorised by the Bush administration when blinded by national security in the
wake of 9/11.
It is inescapable for the Bush administration that they
knowingly authorised the practice of torture; what remains unclear is whether
they will be held accountable for such. Whilst it is unprecedented for a former
U.S. president to be prosecuted for a crime against humanity, Professor Manfred
Nowak has stated that the U.S. government ‘is required to take all necessary
steps’ to bring Bush before a court. However, it is more probable that the
CIA and U.S. military will face accountability in the International Criminal
Court, provided the investigation progresses beyond its preliminary stages; yet
there remains uncertainty as to whether prosecution will be successful.
Undeniably, there is an issue of impunity that is preventing the prosecution of
the practice of torture by America.
Obama failed to acknowledge that torture had been utilised
by the U.S. during his presidency; a task that was subsequently carried out by
the Senate Intelligence Committee. However given the election of President
Trump, who has made no secret of his desire to reintroduce enhanced
interrogation, one wonders whether the SCI report successfully directed public
attention to the abhorrent practice of torture. Alternatively, an example,
albeit unprecedented , is to be had in the Truth and Reconciliation
Commission in South Africa. Following the end of apartheid in 1994, the TRC was
constructed to record human rights violations by the relevant perpetrators as
well as provide rehabilitation for victims. Correspondingly, on American soil,
in 2009 the Illinois Torture Inquiry and Relief Commission was introduced to
investigate torture allegations against the Chicago police department; if such
a truth commission were to be replicated, albeit on a larger scale regarding
the War on Terror, it would promote deterrence from future torture utilization
which, given the impunity in the U.S., is essential. This is in line with the
suggestion of Human Rights Watch to establish an ‘independent non-partisan
commission’ to investigate allegations of torture as well as ‘make
recommendations to ensure that such widespread and systematic abuses are not
repeated’. Akin to the extra-legal action model, TRC hearings were public
and also received media coverage to reach a larger audience. In capturing
public interest and building awareness there is potential for a strengthening
demand for accountability amongst the public that the SCI report fell short of
achieving. However, truth commissions are a complex rather than simple solution
and possess notable flaws that diminish their effectiveness as a tool for
transitional justice. For example, the TRC lacked transparency regarding revealed
information.  and, in relation to America, there would be uncertainty
regarding compellability of senior government officials to testify.
Accountability aside, a reoccurrence of human rights
malpractice during the Bush administration must be prevented. It is practically
advisable for America to change its approach towards detainees, particularly
those suspected of terrorism. Military training focuses on ‘othering’ the enemy
to prevent emotional responses such as remorse and compassion from interfering
with duty; dehumanising the enemy has characterised warfare since the 20th
century  As proposed by Amnesty International, reform should be introduced
to mainstream human rights content within military training.  It calls for
an evaluation of the Expanded International Military Education and Training
courses by the U.S. departments of State and Defence as well as introducing
further compulsory human rights courses that should be taken by all military
trainees  Furthermore, it is necessary to strengthen the vetting process
of trainees’ backgrounds. Whilst the Leahy Law  has been implemented since
1996 it can be reinforced to ensure a standardised vetting procedure is
consistent across all embassies.  In doing so, recruitment will be limited
to individuals capable of ‘dealing with the complexities and ambiguities of
Currently, transitional justice is failing in America. Although the Obama administration began with an insistence to combat terrorism in a manner consistent with American values and ideals,  there remains a significant lack of accountability for the abuse of torture practice and now there is a President that has openly favoured torturous techniques such as waterboarding. With the appointment of Gina Haspel as director of the CIA, there is an underlying threat that tolerance of torture, and subsequently its practice, is being established in the White House once again. It is, therefore, more important than ever to acknowledge the unjustifiability of torture in practice and its unacceptable toleration and lack of accountability in the 21st century. As Michael Haas has stated, civilisation cannot tolerate ignorance of these wrongs because civilisation simply cannot survive their being repeated over and over again ; the threat to national security undoubtedly pales in comparison.
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condition, episode, person or group of persons emerges to become defined as a
threat to societal values and interests; its nature is presented in a stylised
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dishonest for a man deliberately to shut his eyes to facts which he would
prefer not to know’ – Twinsectra Ltd v Yardley and Others  UKHL 12,
 2 AC 164  (Lord Millett).
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hypothetical scenario of a series of unlikely assumptions designed to prejudice
the moral outcome.
Farrell (n15) p.215-216.
Mayer ‘Whatever It Takes’ New Yorker (19th February 2007) quoted in
‘K. Kovarovic ‘Our Jack Bauer Culture: Eliminating the Ticking Time Bomb
Exception to Torture’ (2010) 22(2) Florida Journal of International Law 251,
T. Parry quoted in R. Stephen-Brown (n103) p.8.
from Assistant Attorney General Jay Bybee to White House Counsel in ‘Standards
of Conduct for Interrogation under 18 U.S.C.
§§ 2340-2340A’ (1st
August 2002) p.40-41.
39630/09 ECtHR 13th December 2012 – this was the first rendition
case decided by the ECHR.
Priest ‘Wrongful Imprisonment: Anatomy of a CIA Mistake’ Washington Post (4th
Ross ‘The Right and the Good’ (Oxford: Clarendon, 1930) p.61.
Public Committee against Torture in Israel (n91).
in murders cases such as R v Dudley and Stephens (1884) 14 QBD 273.
the UK is not free of torture scandal it has a law that explicitly criminalises
torture more so than the USA i.e. Criminal Justice Act 1998 s.134; Human Rights
Act 1998 Sch.1 Art.3.
Ginbar ‘Why Not Torture Terrorists? Moral, Practical and Legal Aspects of the
‘Ticking Bomb’ Justification for Torture’ (OUP 2008) p.338.
US Defence Department Official quoted in A.J. Bellamy ‘No Pain, No Gain?
Torture and ethics in the war on terror’ (2006) 82(1) International Affairs
Farrell (n15) p.103.
Erp ‘Political Obligation, Dirty Hands and Torture; A Moral Evaluation’ (2013)
32(1) South African Journal of Philosophy 109, p.113.
elaborated in Chapter 3.
Walzer, ‘The Problem of Dirty Hands’ (1973) 2 Philosophy and Public Affairs
Bellamy (n122) p.131.
14 QBD 273.
Bellamy (n122) p.124.
Waldron (n97) p.323-325.
Waldron (n97) p.189.
Blair December 2005 quoted in R. Blakely (n92) p.248.
example, Justice and Security Act 2013 Part II Closed Material Procedures.
Blakely (n92) p.247.
example, US rendition practice and ‘black-sites’.
Sussman ‘What’s Wrong with Torture’ (2005) 33 Philosophy and Public Affairs 1,
in Article 6(2) European Convention on Human Rights and although not expressly
cited in the Constitution of the United States of America it is implied from
the 5th, 6th and 12th amendments as well as
Coffin v United States 156 U.S. 432 (1895).
Rejali quoted in M. Farrell (n15) p.140.
Bell ‘Behind This Mortal Bone: The (In)Effectiveness of Torture’ (2008) 83(1)
Indiana Law Journal 339, p.352.
‘The Moral Justification against Torture’ (2012) 1(72) Manchester Student Law
Review 72, p.74.
Cammarano ‘I beg your pardon: Maintaining the Absolute Prohibition on Torture
through the Presidential Pardon’ (2012) 69(4) National Lawyers Guild Review
Méndez (n36) p.22 .
Criminal Court Report on Preliminary Examination Activities in Afghanistan (4th
December 2017) p.59 .
Committee Study of the Central Intelligence Agency’s Detention and
Interrogation Program (9th December 2014) S. Rpt. 113-288, p.14.
Seyfarth ‘Facing an Ugly Truth: The Senate’s Report on CIA torture as
truth-telling’ (2017) 18(2) Oregon Review of International Law 99, p.121.
of International Law Recognised in the Charter of Nuremberg Tribunal and in the
Judgment of the Tribunal (1950). This is supported by Article 33 of the Rome
Statute of the International Criminal Court 1998.
Vladeck ‘The Torture Report and the Accountability Gap’ (2015) 61(2) Georgetown
Journal of International Affairs 174, p.176.
Seyfarth (n163) p.120.
Bozzam ‘Impunity: an impossible reparation’ (2000) 69(1) Nordic Journal of
International Law 27, p.29.
died without being convicted of any crimes.
F.3d 762 (D.C. Cir. 2011).
F.3d 748 (9th Cir. 2012).
Criminal Court (n160) p.55 .
a request to investigate similar activities by UK nationals in Iraq.
W. Bush renounced Bill Clinton’s signature on the Rome Statute 1998, which
created the International Criminal Court, on 6th May 2002. Added
protection took form in the American Service-Members’ Protection Act which Bush
signed into law on 2nd August 2002.
proposed by Michael Walzer (n127) and discussed in Chapter 2.
Farrell (n15) p.188.
Farrell (n15) p.191.
Bellamy (n122) p.146.
Sanford Kadish quoted in ‘M. Strauss ‘Torture’ (2003) 48(1 & 2) New York
Law School Law Review 201, p.268.
Farrell (n15) p.189.
Sussman quoted in C. Chang ‘The Absolute Prohibition on Torture: Extra-Legal
Action and Ex-Post Ratification’ (2007) 2007 UCL Jurisprudence Review 27, p.29.
Rights Watch (n170) accessed 2nd April 2018.
Bird and J. Bird ‘Human Rights and the Military’ (2005) 30(2) Alternative Law
Journal 81, p.85.
International USA ’Unmatched Power, Unmet Principles: The Human Rights
Dimensions of US Training of Foreign Military and Police Forces’ (New York:
Amnesty International USA publications, 2002) p.v.
screening the background of military and police trainees for past human rights
International USA (n211) p.53.
Kleinman ‘The Promise of Interrogation v. the Problem of Torture’ (2009) 43(4)
Valparaiso University Law Review 1577, p.1589.