The Doctrine Of Human Rights Essay

The Doctrine Of Human Rights Essay

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(2) human rights/torture (class 7) & post-9/11 use of force (class 14) (25 points)
(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...


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...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.

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