Human Rights and Antiterrorism: A Positive Legal Duty to Infringe Freedom From Torture?

Abstract

In law freedom from torture and ill-treatment is “absolute,” meaning that a state cannot infringe the right for purposes that would seem legitimate such as the protection of national security. However, with the growth in international terrorism, particularly suicide violence, should the freedom remain without limitation? This article considers legitimizing torture by reference to the “positive” legal obligation the right imposes on states to prevent harm to individuals by third parties such as terrorists. Assuming such a legal argument could be made out, it is questioned whether adopting such measures of interrogation would in fact outweigh the negative consequences that would inevitably follow from reversing accepted international standards for the protection of, say, detainees from ill-treatment in state custody.