(a) Is the “necessity defense” a permissible defense to torture? Is “official position” (that is, a person’s official position with the state) an excuse for conducting torture? Should either be? Explain why or why not.
Neither the “necessity defense” nor a person’s “official position” within a state are a permissible defense for torture in international law. All relevant international agreements and case law agree.
Article 5 of the Universal Declaration of Human Rights of 1948 similarly says that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment…” (DRW, p. 411) There is no exception to Article 5 in the Declaration for either “necessary defense” or “official position,” and in fact, Article 30 says explicitly, “Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.” (DRW, p. 411) While the Declaration is not a legally binding treaty, it contributes to the formation of the ban on torture in customary international law.
The International Covenant on Civil and Political Rights (ICCPR) (which is a legally binding treaty), also bans torture in its Article 7, stating “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” (DRW, p. 413) And while there are certain rights that the ICCPR allows derogation from in times when it is “required by the exigencies of the situation,” (DRW, p. 412) torture is not one of them, as laid out by Article 4(2), which states, “No derogation from [article] 7 [ban on torture...
... middle of paper ...
...the international agreements, treaties, legal decisions, etc. above not only prohibit torture with no derogations, but also cruel, inhuman, or degrading treatment. So even if the treatment of post-9/11 prisoners does not reach the level of “torture” or the contorted definition that Gonzales lays out, abusive treatment is not allowed at all.
But if we parse the definition of torture that Gonzales offers, it is clear that it does not conform to international standards of definition. The Convention Against Torture (CAT) says that “torture” “means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person” for a variety of purposes. (DRW, p. 413) While this definition is in fact vague, on its face, Gonzales’ definition of torture requires far more severity to reach the level of “torture” than what is intended in the CAT.
Need Writing Help?
Get feedback on grammar, clarity, concision and logic instantly.Check your paper »
- The doctrine of Parliamentary sovereignty is one of the founding principles of the British legal system. A. V. Dicey states “Parliamentary sovereignty means … that Parliament … has the right to make or unmake any law of England as having a right to override or set aside the legislation of Parliament.” This means that Parliament’s power is unlimited, its validity cannot be questioned, and no one Parliament can bind its successor. It was stated in Madzimbamuto v Lardner-Burke  by LJ Reid that there are no constitutional or legal mechanisms to prevent Parliament from acting morally or politically “highly improper .” In the case Costa v ENEL , the supremacy of EU law was established, and... [tags: Human rights, Law, Common law, Council of Europe]
1601 words (4.6 pages)
- Human rights are important to consider when discussing the injustice that women face, as the treatment given by society often violates the Universal Declaration of Human Rights. This essay will focus on human rights from the perspective of women in Australia by examining what human rights are, and the negative and positive experiences that women have encountered in relation to them. By doing this, the unique experiences women have had with human rights will be discussed as well as the barriers faced and possible recommendations will be suggested on how human rights can be better accessed by women in Australia.... [tags: Human rights]
1818 words (5.2 pages)
- Looking into Finnas’s idea that maybe it is possible that through family and friends one can satisfy all basic desires and goods, but the question still arises of how do humans know how to attain these desires or basic human principles. A baby cries when it is hungry or tired, without being told that it needs to eat or sleep. This example shows that there are innate truths or knowledge that are given to humans the day they are born. Even though Finnas does disagree with Aquinas’s arguments, there is no substantial evidence to prove that humans do not have innate knowledge just through being a human being.... [tags: Human rights]
701 words (2 pages)
- On December 10th in 1948, the general assembly adopted a Universal Declaration of Human Rights. This declaration, although not legally binding, created “a common standard of achievement of all people and all nations…to promote respect for those rights and freedoms” (Goodhart, 379). However, many cultures assert that the human rights policies outlined in the declaration undermine cultural beliefs and practices. This assertion makes the search for universal human rights very difficult to achieve. I would like to focus on articles 3, 14 and 25 to address how these articles could be modified to incorporate cultural differences, without completely undermining the search for human rights practices... [tags: Human Rights Essays]
1354 words (3.9 pages)
- The doctrine of human rights were created to protect every single human regardless of race, gender, sex, nationality, sexual orientation and other differences. It is based on human dignity and the belief that no one has the right to take this away from another human being. The doctrine states that every ‘man’ has inalienable rights of equality, but is this true. Are human rights universal. Whether human rights are universal has been debated for decades. There have been individuals and even countries that oppose the idea that human rights are for everybody.... [tags: Human Rights Essays]
1599 words (4.6 pages)
- Human rights has become a universal promise that has been codified through United Nations treaties and in the legal systems of various nation states. As such, human rights has become a highly political manner, leaving the power of interpretation of what constitutes as ‘rights’ in the hands of the states, as well as who are able to gain access to these rights. The usage of the language of human rights by the state and other agencies reflects in the practical application of codified rights. Parallels will then be drawn between the interpretation of the rights to development to that of the interpretation of the state regarding rights that prohibit torture, as these suggest that speaking in the... [tags: Law, Human rights, Torture]
1180 words (3.4 pages)
- The Human Rights Act ‘The Human Rights Act in its present form, besides failing to properly incorporate the European Convention on Human Rights, gives the United Kingdom a defective law which puts it at the bottom of any international league table of bills of rights. The Act talks of rights, but keeps them at arms length and has as a consequence been hesitantly applied by the courts.’ Discuss.... [tags: Human Rights Essays]
2449 words (7 pages)
- To the best of my understanding, The European Convention on Human Rights, is basically a convention that was put in place to make the rights of all people within this group known in an official format. This is also to create more unity for the members that are involved in the European Convention so in other words this is a win-win. The articles that are within the document are , in my opinion , a wonderful foundation for a group of member states to build upon. The first article that was under Section 1 was the right to life.... [tags: Human rights]
1317 words (3.8 pages)
- Pathologies of Power and human rights discourse Without much hesitation, many argue that the concept of human rights is a universal one and therefore the only blockade on progress and relief is the worldwide level of involvement. The Nuremberg trials, for example, brought the level of neglect by many countries to light. A large population suffered atrocities while everyone else with the ability to intervene stood idly by. Although such an interpretation is true to a certain extent, addressing violations of human rights requires more attentive analysis.... [tags: Human rights]
935 words (2.7 pages)
- Are Human Rights a phenomenon without merit or a crucial aspect of our inter-governmental/inter-societal system. Some would argue that the foundation of human rights contradicts the means. For instance, when discussing the use of the term “Universal Human Rights,” we often forget that the term “universal” instigates nations to follow under one set doctrine of particular principles (Ronin, Bruce, and Hurd, 2008). The contradiction lies within the entity which promotes said norms, the United Nations; within it, the international non-governmental entity seeks out ways of promoting their vision of a world bound by a code of conduct and a common goal of peace and co-existence.... [tags: Human Rights]
2004 words (5.7 pages)