The Pros And Cons Of Torture In International Law

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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
414)
There is not (as shown above) nor should there be any exception to the prohibition on torture. If there was an exception for either “necessity” or “official position” for torture, nations around the world could claim necessity in any conceivable circumstance, and the leaders of those nations could order torture whenever convenient, with no legal implications. Relaxing the total prohibition on “torture, cruel, inhuman, or degrading treatment” would completely undermine the prohibition, essentially permitting the use of torture whenever countries saw fit to use it.
(b) Is the following sound legal advice and/or consistent with international
425 (quoting 7/1/02 memorandum from Assistant Attorney General Jay Bybee to White House Counsel Alberto Gonzalez). Explain why or why not.
Alberto Gonzales’ definition of torture above is neither sound legal advice nor consistent with international standards. First of all, whether the actions above (or anything short) constitute “torture” is almost irrelevant, since all 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

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