Military Law

Instructions

Question 1.
1. (a) What is torture and how has it been defined in international instruments prohibiting it?

(b) Under the doctrine of act of State, can an individual be shielded from criminal responsibility for an act he or she committed in the name of or as an agent of a state? Which ICTY case amended the definition of torture and how? What three elements of the torture definition remain contentious?

(c) Why do States / individuals torture? Is it effective? Why or why not? Explain with reference to the experience of one of the following: Israeli, American or French experience.

(d) What is the ticking time bomb scenario? Analyse the scenario on an ethical basis. What is the view of Alan Dershowitz? What is the contrary view?
Ready Paper Excerpt

Question 1. Torture

Torture and international instruments prohibiting it

The implication of torture is intentionally inflicting relentless physical or mental pain or suffering to an individual with a motive of squeezing out of the person, third person confession or information. Torture also means subjecting the individual to a form of punishment to an individual because of an act he or she did, or was done by a third person, or for any known reason attributed to a form of discrimination in which case the suffering or the pain is instigated with the acquiescence or consent of a government official or the instigator of the suffering acts in official capacity[1]

This definition of torture gives a reflection of premeditated infliction of brutal mental or physical suffering or pain for the achievement of a precise objective by state authorities under whose consent the act is executed. The aim of torture is punishing the victim so that a confession or some desired information can be obtained or an act of revenge or creation of feelings of terror in a specific population. The execution of physical torture is achieved by suffocating the victim, beating the victim, subjecting the victim to electric shocks, stretching, submersion, burns, rape as well as sexual assault………

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