Studying the Possibility of Relative Permission of Torture in Case of Emergency under International Law

INTRODUCTION: In accordance with domestic and international law, torture is prohibited. However, there remains a question: whether torture is absolutely prohibited and is not permitted in any circumstances or it can be prescribed in necessity cases. According to this research, although emergency may be justified, application of this institution in torture confronts with important challenges. The prohibition of torture is absolute in domestic and international law. Unnecessariness, invalidity and unreliability of information obtained under torture indicate the absolute prohibition of torture . THEORETICAL FRAMEWORK: It seems that there is not disagreement regarding the prohibition of torture in domestic and international law. For example ″Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984″that is the most important document prohibiting torture. Article 1 of this Convention defined torture: ″Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from 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 instigation of or with the consent or 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 to lawful sanctions.″ Moreover, in Iran’s domestic law, Article 38 of the Constitution states that torture is prohibited. On the other hand, the definition of necessity should be considered. Emergency is defined as to compel to accept harm. In legal terms, necessity and emergency are often synonymous and are one of the justifications and it is a defense that breaks the law in order to prevent greater harm. The question is whether the torture is permissible in urgent circumstances such as protecting the country? For example it can be noted “Ticking Bomb Scenario” in international law. The ticking bomb scenario is a hypothetical “thought experiment” that is used to question the absolute prohibition of torture. It can be formulated as follows: “Suppose that a perpetrator of an imminent terrorist attack, that will kill many people, is in the hands of the authorities and that he will disclose the information needed to prevent the attack only if he is tortured”. In customary international and treaties law, as well as the different legal systems has answered the question. For example, Jay S. Bybee, Assistant Attorney General in America 2002, to the resorting of “Self- Defense” to justify torture and states that the use of torture is essential to obtain information in order to prevent imminent threat to the Unites States and its citizens. Therefore two views exist regarding prohibition of torture in urgent circumstance in the legal: One group holds that torture is prohibited; but torture is permitted in urgent and emergency circumstances to protect and secure the society. But in contrast, the second group believe torture is absolutely prohibited. The method of research in this study is descriptive- analytical. Data are collected from library sources, articles, books, document and scientific publication to analyze and compare the issue. The importance of the prohibition of torture has been recognized at the domestic and international law. Among international documents and treaties concerning this issue is the ″Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984.″ Paragraphs 2 and 3 of Article 2 of this Convention state: ″No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.″ ″An order from a superior officer or a public authority may not be invoked as a justification of torture.″ Two views have been discussed regarding torture in international law. One group holds that torture is prohibited except in urgent and emergency circumstances protect and secure the society. This group point to cases such as self- defense, urgent defense, and coercive interrogation and mitigation circumstances perpetrators of torture to justify torture. In contrast, the second group maintain that torture is absolutely prohibited. Slippery slope, inessential, invalidity and unreliability of information obtained under torture are some of the facts this group refer to. This research argues that torture is absolutely prohibited in domestic and international law. CONCLUSIONS & SUGGESTIONS: In accordance with domestic and international law torture is absolutely prohibited. Those who believe that torture is permitted in urgent circumstances resort to cases as self-defense, urgent defense, coercive interrogation and mitigation of punishment to perpetrators of torture. They believe that torture is necessary to obtain information from the. It is worth noting that there is no self- defense or urgent defense in such circumstances. The most important condition of self- defense is imminent aggression that doesn’t exist in this case. Arrested suspects are not a threat. Rather, they are only defenseless victims and can never be considered an imminent threat. In addition to the most important condition of urgent defense is necessity that does not exist in this case. Although sometimes torture may lead to obtain information but there is no guarantee that in all cases, the accused under torture will tell the truth and we can’t make sure that the accused have information. On the other hand, torture is contagious (slippery slope). Once torture is permitted, it may not be stopped. Torture will be used to punish convicted criminals, to extract information from suspects and even witnesses in routine criminal cases, and to intimidate political opponents. So torture should be absolutely prohibited in domestic and international laws. Therefore, it is necessary to hold training courses to enhance the scientific level officials and training cause of absolute prohibition on torture, even in cases of emergency in order to protect civil rights.