


































Economics, Law and Policy 
ISSN 2576-2060 (Print) ISSN 2576-2052 (Online) 

Vol. 7, No. 1, 2024 

www.scholink.org/ojs/index.php/elp 

 
 

223 

Original Paper 

The Moral Justification and Necessity of Torture in the Context 

of Suspected Terrorists 

Wang Suyi
1
 

1
 Beijing Normal University Law School, No. 19 Xinjiekouwai Street, Haidian District, Beijing, China 

 

Received: June 1, 2024        Accepted: June 7, 2024           Online Published: July 3, 2024 

doi:10.22158/elp.v7n1p223               URL: http://dx.doi.org/10.22158/elp.v7n1p223 

 

Abstract 

This essay examines the moral permissibility and necessity of using torture on suspected terrorists, 

particularly in the context of the “ticking bomb” scenario. The paper is divided into two parts. Part I 

critiques the deontological arguments against torture, highlighting the weaknesses in the absolutist 

stance that prohibits torture under any circumstances. It argues that in specific situations, the rights of 

victims justify a self-defence response, which can be executed by authorities on their behalf. Part II 

explores the common law doctrine of necessity, demonstrating that under certain conditions, torture is 

both necessary and reasonable. The essay concludes with a proposal for “torture warrants” to legalize 

and regulate the use of torture in specific, extreme cases, ensuring accountability and minimizing 

misuse. 

Keywords 

Torture, Moral justification, “Ticking bomb” scenario, Necessity doctrine 

 

1. Introduction  

Torture is defined under the United Nations Convention Against Torture and Other Cruel, Inhuman or 

Degrading Treatment or Punishment 1984 (―UN 1984‖) as an act which inflicts severe physical or 

mental suffering or pain on an individual for the purpose of obtaining information or confession (Note 

1). 

In 2017, the Trump administration openly endorsed the use of torture and confirmed the efficiency in 

intelligence collection (Note 2). His intention to soften the US‘s stance on torture has again put the 

ongoing academic debate over the moral and ethical legitimacy and efficiency of the practice of torture 

under the spotlight. On one hand, scholars like Clara Assumpção aver torture of suspected terrorists is 

either morally permissible or necessary (Note 3). Their position is bolstered by deontological ethics and 

the principle of universality of human rights. Yet, as the statement in the question rightly observes, 



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arguments advanced by ethical absolutists suffer from a fundamental weakness–pragmaticism. This 

essay takes an even further stance than the prompt maintains and argues that under specific 

circumstances, the practice of torture is not only morally justifiable but also necessary.  

To illustrate this proposition, Part I will tackle the moral permissibility of the use of torture. It will 

unpack and scrutinise philosophical and moral arguments against the torture of suspected terrorists and 

identify their weaknesses. Part II will turn to the necessity of torture and will illustrate that torture of 

suspected terrorists can be effective under specific circumstances with reference to the common law 

doctrine of necessity. To narrow the scope of discussion, this essay will frame arguments in the context 

of the classic ―ticking bomb‖ scenario.  

 

2. The Ticking Bomb Dilemma: Ethical and Practical Justifications for Torture 

When Courtenay and Conrad surveyed pedestrians in New York regarding the practice of torture, most 

individual‘s first reaction was an affirmative refusal to undertake in such a ―gruesome act‖ (Note 4). 

However, when the very same group was presented with the iconic ―ticking bomb‖ scenario, which is 

often the starting point of moral and ethical debate over the use of torture, many hesitated (Note 5).   

Imagine the following context (Note 6):  

A terrorist stages an attack in your hometown. He hides a bomb carrying deadly chemical 

agents somewhere in the city. The police track him down and identify him as the suspected 

perpetrator, whereupon he confirms that the device has been set to go off. There is a very real 

danger that your city and all its suburbs could be destroyed by the bomb exploding in five 

hours. All will endure a horrifying demise. The terrorist declines to provide information on the 

position of the device despite being urged and pressured to do so. Instead, the terrorist requests 

the immediate and unconditional release of all prisoners on death row, the amount of ten 

million pounds, and a plane for his flight. What do you plan on doing? 

In the view of moral absolutists, the prohibition of torture is absolute even in the above ticking bomb 

context. As Ariel Dorfman once famously puts it, ―I can only pray that humanity will have the courage 

to say no to torture, no to torture under any circumstance whatsoever, no to torture, no matter who the 

enemy… no to torture no matter what kind of threat is posed to our safety‖ (Note 7). This stern attitude 

against the use of torture could be explained through deontological ethics. Kant maintains that an 

individual is either good or bad based on the motivation/reasons behind their behaviours, not on the 

goodness of the consequences of such behaviours (Note 8). Someone will have moral value if they are 

inspired by moral principles. In this reading, if someone acts on their impulses and wishes, the action is 

not morally correct, since it was not motivated by moral or ethical principles. More importantly, 

Kantian philosophers are unconcerned with the ramifications of decisions, but rather with their 

motivation. Kant asserts that if two individuals behave for the same purposes, they are still morally 

deserving, particularly if one of their acts results in negative outcomes (Note 9). According to Kant, an 

individual is only good if they perform their duties out of obligation. It is acceptable if they enjoy 



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themselves, however, they must want to do so even if they do not. This level of unshakable allegiance 

towards moral principles and ethical values is best summarised by the maxim that ―one should only act 

which will become a universal law‖ (Note 10). Under this paradigm, since torture itself is an 

intrinsically wrong/evil action, no amount of good could possibly justify it. Thus, torture would never 

be admissible, not even in a ―ticking-bomb‖ scenario.  

A practical application of Kantian deontologism is Gafgen v Germany (Note 11). In this case, the 

European Court of Human Right (―ECtHR‖) upheld a breach of Article 3 (Note 12) of the European 

Convention of Human Rights (―ECHR‖) when German police officers subjected the kidnapper of an 

11-year-old boy to threats of torture in an attempt to locate and rescue the victim. In reaching their 

decision, the Grand Chamber emphasised that Article 3 is an absolute right. There was no ground for 

defending any violations, which implies that they cannot be justified against the worthiness of other 

ends, such as the life of an 11-year-old boy (Note 13). On a point of which might appear to be pedantry, 

it should be noted that Grand Chamber did not adjudicate that Gafgen was tortured. Rather, they 

concluded he was subject to inhuman treatment.  

Kantian absolutism‘s stance on the ticking bomb scenario suffers from fatal flaws. One major weakness 

is its impotence in reconciling two conflicting and competing interests. The Kantian maxim mandates 

persons not to commit any harm (because it is morally impermissible), but it does not give any 

guidance when others inflict harm first. For instance, in Gafgen, when the applicant kidnapped 

11-year-old Jakob, Jakob‘s conventional rights were equally at stake and he was incapable of 

undertaking any defence to protect his rights. Echoing Professor Steven Greer‘s criticism, it is 

disappointing to see that Grand Chamber did not take the conventional rights and interests of the victim 

into proper consideration while rendering the judgment (Note 14).  

One may challenge my view by suggesting that my argument only grants the victim, Jakob, a morally 

permissible right to self-defend and it does not justify the imposition of inhuman treatment of German 

police on the kidnapper. There is some truth to this critique. To counter this, Osman v United Kingdom 

(Note 15) needs to be closely examined. In this case, ECtHR confirmed that national authorities have a 

―positive obligation under Article 2 of the ECHR‖ to take preventive operational measures to protect an 

individual whose life is at risk from the criminal acts of another individual‖ (Note 16). Neil Graffin 

argues that this positive obligation is subject to two conditions (Note 17). The first is it cannot impose a 

disproportionate burden on authorities, and the second is that such obligation must exercise in respect 

of the suspects‘ rights under Article 5 and 8 of ECHR (Note 18). I agree with these two conditions. 

Indeed, it is precisely these two limitations that equally prevent the national authorities from abusing 

the practice of torture, which many Kantian absolutists are concerned about. This will be discussed in 

further detail in Part II. Unlike Osman, in which the murder could not have been predicted with 

sufficient certainty, in the case of Gafgen, the risk was much more imminent. Accordingly, it is 

puzzling why such a positive obligation is not engaged in the judgment to protect the rights of Jakob.  

In addition to the conflicting convention rights, the inequality of each side enduring suffering as a 



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consequence of their rights having been abused is often not addressed under Kantian justification 

against torture. As Mavronicola puts it, Gafgen infringed on Jakob‘s interests even more seriously than 

the police did to Gafgen. Jakob would have faced a horrific nightmare spanning days if he had not been 

killed nearly immediately after being kidnapped. His ordeal would have been made much worse by the 

reality that he was an 11-year-old boy estranged from his parents. Gafgen‘s ordeal, on the other hand, 

lasted just ten minutes of ―considerable anxiety, agony, and emotional pain‖, according to the Grand 

Chamber (Note 19). If the aim of Article 3 is to prevent human suffering caused by anyone for which 

the state may be held liable, given that if this was the only viable means of rescuing Jakob, it is argued 

that the positive obligation on the police to use force to extract information from Gafgen is morally 

permissible and necessary, since Gafgen is subject to a far less serious violation of his Article 3 rights 

than Jakob. 

Another major moral claim against the practice of torture is the slippery slope argument. 

Green-Sanders argues that granting some level of justification to inhuman treatment or torture to 

suspected terrorists, including in life-or-death scenarios like the ―ticking-bomb‖ scenario, starts a risky 

chain of events that might lead to torture being a normality (Note 20). In addition, in the real world, 

Green-Sanders maintains that there is no way to be certain that the suspect or detainee is the correct 

penetrator, that they possess all the knowledge, or that they will supply the details under the threat of 

torture (Note 21). This danger is unacceptable since causing discomfort or distress on others for the 

sake of obtaining information is not morally justified, particularly in established democracies. In 

Gafgen, the Grand Chamber also expressed the same concern and admitted part of the rationale behind 

the judgment is to prevent any potential ―ill-treatment in future difficult situations‖ (Note 22). Yet, 

Bagaric and Clarke make a powerful point that a legal standard for torture would not slip if the practice 

of torture were rigidly legalised (Note 23). One piece of evidence in support of this is capital 

punishment. Donohue‘s model which analysed all existing death penalty cases confirmed that the legal 

standard for capital punishment does not seem to have slipped after capital punishment was formally 

legalised (Note 24).  

In one version of the slippery slope argument, Jeremy Waldron interestingly characterises the blanket 

ban on torture as a ―legal archetype‖ (Note 25), which can be understood as a baseline or bottom line in 

a legal system. In Waldron‘s words, torture ―sums up or makes vivid to us the point, purpose, principle 

or policy of a whole area of law‖ (Note 26). Waldron demonstrates that landmark judicial decisions 

against less severe and harmful examples of police brutality were rendered, using torture as a baseline. 

The analogy of torture was used to justify the rejection of other forms of brutality. For example, in 

Rochin v California (Note 27), the Supreme Court made a comparison between ―forcing a piece of 

information out of a suspect‘s body‖ and ―forcing a substance from his body‖. It follows that if the 

former is strictly prohibited, the latter should have the same treatment in law. In this sense, the 

judgment would not be possible if torture were to become legalised and validated, since a punishment‘s 

resemblance to a normal legal practice could hardly be used to justify another. Waldron maintains that 



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―the premise is that our trust in what occurs at the bottom of the slope which is the practice of torture 

informs and encourages our confidence in the lesser evils that lay beyond torture as well‖. As a result, 

dismantling the archetype of torture prohibition contradicts the prohibition of lesser types of violence. 

The whole series of anti-brutality injunctions would fall apart, and the justice system‘s character would 

be tainted.  

Moreover, Waldron contends that what makes such a brutalization of the justice framework particularly 

terrifying is that it often involves the brutalization of the enforcer—who, in contemporary democracies, 

is essentially the state. It is one thing to give a person the legal justification to torture another individual 

in a particular circumstance. However, allowing the state to constitutionally institutionalise torture in 

some cases is something entirely new. The more the practise of punishment spreads, the further it 

undermines the prohibition‘s archetypical character. The more this occurs, the more the practise 

spreads. It is not only a slippery slope but also one that becomes increasingly steeper as it descends.  

Waldron‘s craft of argument is intriguing. However, by focusing solely on the relationship between 

incidents of police brutality and the practice of torture, Waldron exaggerates the role torture played in 

such cases and overlooks the intention behind police violence, which has most proven to be motivated 

by racial bias/discrimination (Note 28). The nature of the use of torture among suspected terrorists is 

very different. Two ethical approaches explain the nature of such practice. Firstly, according to the 

realist approach, which follows from Hobbesian thought, the ticking bomb scenario is the defence of 

the nation‘s interest (e.g., protection of community). It permits a person to do anything for the good of 

his country, the national interest is subject to the nation. Thus, torture would be morally justified if it 

was used to promote the state‘s well-being. The realist perspective, with its emphasis on national 

interest and patriotism, would enthusiastically embrace the use of torture not only in ―ticking bomb‖ 

scenario but also in self-defence situations. On the other hand, the consequentialist approach maintains 

that actions are judged by their consequences and that the overarching goal should be to generate a 

―global good‖. Thus, if the use of torture is justified on the basis of the benefits derived from it, torture 

is also equally ethically justifiable. 

The final criticism of the claim against torture falls upon the idea of practicality. Steinhoff gives an 

extreme example of the human race versus aliens. He invites us to consider—if one has the choice 

between killing a maniac (Let us say Idi Amin) or the minority group (namely us) for an hour, he/she 

would want to bless the creation of such a situation that character inhumanely harmfulness on the 

minority group (He has postulated, so far, an alien or one) and whether they‘d even consider going 

against it if one hour were granted to do that when you think about it. Alternatively, what if it is 

decided that humanity as a whole must be tortured in order to obtain information or only one particular 

group of people are punished in order to protect one person? Fruits and vegetables count, too, if the 

consequences of their neglect could be considered catastrophic. The rules cannot be simply avoided by 

serving no function for the sake of the ―absolute good‖, especially if there are no justifications for 

doing so. Legality exists in justice, as well as in ease; the letter of the law as well as in wealth. 



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Part I scrutinises the deontological claim that torture is categorically wrong under any circumstances 

because of its intrinsic affront to human decency and dignity. As demonstrated above, the deontological 

prohibition of torture presents a few ethical flaws. The first is its failure to reconcile and balance all 

parties‘ competing interests and Convention rights and the second is the slippery slope argument itself 

is displaced and unconvincing in the ―ticking bomb‖ scenario.  

 

3. The Doctrine of Necessity: Utilitarian Perspectives on Torture in Extreme Scenarios 

There is a common fear shared by advocates of human rights that once the right of the individual not to 

be subjected to torture is derogated, even just slightly, the practice will be abused and exploited. Part II 

will focus on this very specific concern and make reference to the common law doctrine of necessity as 

a standard to assess the necessity of practice of torture in the ―ticking bomb‖ scenario.  

The doctrine of necessity is deeply embedded with the principle of utilitarianism, which inevitably 

involves weighing ―choices of evil‖. The doctrine holds that certain conduct or in our context use of 

torture is permissible and acceptable because it prevents a greater evil and thereby results in a net social 

advantage or profit to society (Note 29). In comparison to inflexibilities presented in deontological 

claims, Andrew Ashworth suggests, the necessity doctrine is a compromise of human vulnerability in 

the face of immense pressure, in which the accused violates the law rather than resulting in greater 

harm if he did not violate the law (Note 30). The defence of necessity has long been recognised as a 

common-law doctrine and subject of controversy in both English and American courts. 

3.1 An Assessment  

A comprehensive five-prong test devised by John Cohan is applied here to analyse the ―ticking bomb‖ 

scenario (Note 31). It is said that the practice can be justified by the doctrine of necessity and becomes 

necessary if the defendant can prove that:  

(1) He had to choose between two evils and selected the lesser of the two. 

(2) He took measures to prevent imminent harm. 

(3) He had a reasonable expectation of a causal link between his actions and the damage to be 

prevented. 

(4) There were no other alternatives but to break the rule. 

(5) In the first place, the defendant‘s actions are not irresponsible and negligent. 

Limb one is comprehensively covered in Part I. The following will focus on the rest of the elements.  

On (2), imminence denotes the danger‘s immediacy, but how real must the threat be in order for it to be 

―imminent‖ enough to warrant torture? What if the ticking bomb goes off in a month, rather than a day 

or two? Or how about a week? The criterion of imminence usually ensures that the threatened damage 

is temporally quite close to the present moment. Torture ―ought not to be utilised but in cases which 

admit of little delay; in cases in which if the thing done were not done instantly there is a likelihood, at 

least a great possibility, that the doing it will not answer the purpose‖, Bentham says (Note 32). If the 

danger is not immediate, there is always scope to use conventional law enforcement techniques and all 



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legitimate ways to find the relevant information. The matter of imminence, on the other hand, must be 

interpreted in terms of the gravity of the harm to be avoided. The danger could be days away if the 

gravity of the threat is immense, such as a ticking nuclear bomb that might destroy tens of thousands of 

civilians, but the gravity of the hazard may warrant drastic action now. On this topic, a study by an 

Israeli national commission known as the Landau Commission Report concluded that using torture to 

reveal the position of a device, if it is due to blow in five minutes or five days, could be justified (Note 

33). 

On (3), the intervention taken must be fairly determined to be causally successful in averting the 

greater evil under this factor. Bentham put the causal nexus aspect this way: ―Torture is not to be used 

except on circumstances when pause is not possible, but only in situations where the value provided by 

doing the thing required is such as to justify the use of such a drastic remedy‖ (Note 34). Torture‘s 

usefulness under the need theory cannot be maintained where there is a remote chance of 

accomplishment and less invasive; permissible forensic tactics are usable. 

This aspect takes into account whether the suspect has the ability to supply the requested details. To 

some point, this overlaps with the lesser-of-two-evils factor, as this essay argues that when deciding if 

torture is the lesser evil, officials should weigh the degree of confidence that the suspect has the 

requisite evidence. If the perpetrator admits to planting the bomb but declines to reveal its position, 

there seems to be a strong degree of confidence that the suspect has the ability to reveal the necessary 

facts. However, if authorities have just a theory and no evidence to back that up, we‘re in a whole 

different position. In this regard, Bentham argues that there seem to be two cases in which torture may 

be used appropriately (Note 35). The first is where the thing that a man is asked to do is something that 

the society is interested in his performing or something that he has a guarantee in being able to do 

(Note 36). Therefore, he is certain not to be innocent as long as he continues to struggle for not doing. 

The second is when a man is required to do anything that is perhaps, though not certainly, beyond his 

power to do; and through which he may suffer, even though he is innocent; but which the public has 

such a strong interest in him doing that the danger of what might result from his failure to do so is 

greater than the danger of an innocent person suffering the greatest degree of pain (Note 37). Bentham 

went on to state that torture cannot be used until there is good evidence that the inmate has the will to 

perform what is asked of him. 

A related point to make regarding the causal nexus factor is the effectiveness of torture. According to 

Sanford Levinson, torture would never be required because ―we have no idea how effective torture is as 

a method of extracting intelligence‖ (Note 38). Although it is true that there are fundamental 

difficulties in evaluating the efficacy of coercive interrogation, we cannot say that we have ―no idea‖ 

how reliable it is. According to the Washington Post, Philippine officials tortured a jihadist into sharing 

intelligence that may have prevented attempts to kill the Pope, smash eleven passenger aeroplanes into 

the Pacific Ocean, and fly a private Cessna loaded with explosives into the CIA headquarters in 1995 

(Note 39). Intelligence officers pounded the suspect ―with a chair and a long piece of wood (breaking 



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much of his ribs), pushed water into his mouth, and mashed lighted cigarettes into his private parts‖ for 

sixty-seven days. They handed him over to American authorities after effectively completing this 

operation, along with the life-saving knowledge they had extracted from him. Following Osama bin 

Laden‘s death, CIA officials said that vital intelligence obtained by waterboarding aided in the capture 

of the world‘s most wanted jihadist (Note 40). It is hard to escape the daunting philosophical problem 

of deciding between evils while ignoring the scientific fact that torture operates sometimes, if not 

always. No crime-prevention strategy is guaranteed to be successful. 

On (4), a demonstration that there is no fair legal solution to averting the greater evil is needed. If time 

allows, some fair solutions to torture will need to be used in order for torture to pass muster under the 

necessity theory. The legal way-out component is linked to the imminence factor, which means that if 

the emergency situation is actually urgent, there will be little opportunity to consider legal options. If 

the threat is not immediate, Bentham recommends that ―a form of compulsion that seems less serious, 

and therefore, less unpopular can be used in preference‖. Obviously, if the threat to be averted is so 

immediate that there is little time to consider less invasive tactics, interrogators can decide if torture is 

the only rational way of averting the greater evil under the circumstances (Note 41). 

Other options, such as bribery, other bonuses, or psychological tactics, may be discussed. The less 

traumatic option of injecting the prisoner with ―truth serum‖ may be seen by interrogators (Note 42). 

The usage of truth serum or other mind-altering drugs may be legal in the United States unless the drug 

causes ―prolonged psychiatric damage‖ (Note 43). In either case, ―a large percentage of participants 

maintain the capacity to dissemble when under the control of truth serum‖, and certain drugs cannot 

guarantee the quality of the data collected (Note 44). Others contend that while medications make 

criminals chatty, there is more proof that they are merely ―chirruping on‖ rather than speaking the facts, 

and that there is a shortage of scientific evidence of the authenticity of admissions elicited under 

so-called truth serum (Note 45). Truth serum, on the other hand, is less painful and, according to the 

United States‘ view of the United Nations Convention, is a legal procedure. ―When the stakes are 

sufficiently large, and all techniques have failed, even a reasonably small risk of finding valuable 

intelligence might very well be considered as adequate to warrant the usage of such interrogation 

methods,‖ such as truth serum, says Mary Lowth‘s study (Note 46). 

The Fifth Amendment right against self-incrimination, according to Dershowitz, does not preclude the 

usage of truth serum or even coercion if a defendant is granted protection from indictment (Note 47). 

As a result, if using truth serum to interrogate a prisoner would not breach substantive fair process 

protections, it may be a legitimate solution to abuse. In comparison to simple, physical torture, the 

testimony cannot be used in prosecution, however; the suspect‘s human rights may not be deemed 

abused. It may be because truth serum injections are minimally painful, have virtually no discomfort or 

negative side effects, and simply reduce a person‘s inhibitions. If this rational legal option fails to yield 

the desired details, the interrogation may have no choice but to resort to torture. 

 



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On the (5), many attackers believe they have ―clean hands‖, that is, that they are not to blame for the 

situation that has prompted them to target us (Note 48). They feel they are completely innocent of any 

crime and that the bad to be avoided is entirely external to them, such as fascism, colonialism, and the 

introduction of Western ideals. Terrorists may believe that they are facing a severe type of 

discrimination or persecution by a strong political adversary, that an act of terrorism is the only way to 

avoid the damage, and that the act is, on average, the lesser evil (Note 49). Furthermore, there is no 

such thing as an ―innocent victim‖ in the hostile community for a criminal, but people and all 

―innocent‖ objectives are fair game for the offending country (Note 50). The targets are not completely 

innocent in the eyes of the terrorists, but collectively guilty of their government‘s policies. Terrorists 

may conclude that they were not the original aggressors, but that the enemy government‘s imperialism 

is illegal brutality and aggression toward their fundamental rights, and that terrorist action is the only 

logical way to combat the infringing government and end dictatorship. 

Terrorists, according to R.M. Hare, ―function on behalf of an impoverished segment of the society that 

has no other way of achieving redress of its just grievances‖ (Note 51). Such people would say that in a 

similar situation, they will be willing to make someone do the same to them. However, as Hare points 

out, the issue is what constitutes, ―just complaints‖ (Note 52). It would be appropriate to demonstrate 

that there were no other viable options for resolving complaints. Terrorists, on the other side, entirely 

comply with the clean hands requirement—they have clean hands, and therefore, are not the root of the 

bad they aim to kill. 

Even where serious situations arise, the different features of the need for protection render it 

exceedingly impossible for officials to explain or excuse the usage of torture. It isn‘t to say that in a 

ticking time bomb case, officials would not use torture. Nonetheless, the universal agreement that 

torture is unethical seems to have been conventional international law. As a result, it will extend to all 

state entities, with ―necessity‖ serving as neither a rationale nor an excuse for violating it. In the end, 

states will pursue whatever measure they find appropriate in the face of exigent situations that will 

otherwise go unnoticed. 

3.2 Application of the Doctrine of Necessity-Torture Warrants 

A more concrete application of the doctrine of necessity is torture warrants. According to Dershowitz, 

―torture warrants‖ may be introduced, a process that will involve prosecutors to submit an application 

and, if sufficient cause is shown, a judge to sanction the procedure (Note 53). In a similar way, Floyd 

Abrams and Harvey Silverglate have also said that they would support the usage of nonlethal 

punishment if it could save thousands of lives, but they do not want torture to be accepted by our legal 

system (Note 54). The strategy taken by Abrams clashes with the third critical democratic value: 

transparent governance and transparency. Off-the-books, under-the-radar activities are incompatible 

with democratic philosophy and practise. Citizens cannot support or disapprove of government 

activities they do not know about. Off-the-books behaviour has been seen to have disastrous effects in 

the past (Note 55). Totalitarian and totalitarian governments do not face this conflict because they do 



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not adhere to civil libertarian or democratic ideals that are at odds with the importance of stability. We 

jeopardise our people‘s protection and welfare if we should not torture them. We sacrifice public 

transparency standards if we allow torture but leave it off the record and under the radar. We abandon 

our principled resistance to torture under all situations if we establish a legislative framework for 

restricting and monitoring torture. We, therefore, create a highly volatile and expandable scenario. 

The request for a torture warrant aims to restrict the usage of torture to the lowest level and degree 

possible while still establishing collective responsibility for its occasional occurrences (Note 56). It is 

not a concession for civil liberty; rather, it is an attempt to maximise civil liberties in the face of the 

real possibility that torture occurs and may continue to occur outside of the reach of accountability 

(Note 57). And if judges seldom refuse requests, requiring the action to be accepted by a judicial 

officer would result in fewer cases of torture. 

 

4. Conclusion: Torture—Moral and Can Be Necessary  

Part I established that torture is not necessarily morally impermissible in the ticking-bomb scenario. To 

advance this proposition, this essay first identifies weaknesses of arguments driven by Kantian 

deontologism and concludes that since torture infringes victims‘ rights and interests in the first place, 

victims shall be granted a self-defence right to defend their interests being damaged. Additionally, the 

authority could exercise this self-defence on behalf of the victim if victims are incapable of protecting 

themselves from the infringement. Part II illustrates that that the long-recognised common law doctrine 

of necessity is used to demonstrate that if all certain conditions are met, torture in the ticking-bomb 

scenario is necessary and reasonable. The essay ends with a torture warrant as a reform 

recommendation to legalise and formalise the use of torture in specific circumstances.   

 

References  

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at-the-committee-found.html 

Ashworth, A., & Redmayne, M. (2010). The Criminal Process. Oxford University Press. 

https://doi.org/10.1093/he/9780199547289.001.0001 

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Notes 

Note 1. Article 1, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or 

Punishment, Adopted and opened for signature, ratification and accession by General Assembly 

resolution 39/46 of 10 December 1984 entry into force 26 June 1987, in accordance with article 27 (1). 

Note 2. Matthew Weaver and Spencer Ackerman, Trump Claims Torture Works But Experts Warn Of 

Its ―Potentially Existential‖ Costs (the Guardian, 2017) 

<https://www.theguardian.com/us-news/2017/jan/26/donald-trump-torture-absolutely-works-says-us-pr

esident-in-first-television-interview> accessed 16 April 2021. 

Note 3. Clara Assumpção, Can The Use Of Torture In Intelligence Gathering Be Justified? 

(E-International Relations, 2020) 

<https://www.e-ir.info/2020/03/20/can-the-use-of-torture-in-intelligence-gathering-be-justified/> 

accessed 16 April 2021. 

Note 4. Courtenay R. Conrad and others, Threat Perception And American Support For Torture (2017) 

40 Political Behavior, 1000. 

Note 5. ibid, 1001. 

Note 6. This description is adapted from Alan M Dershowitz, Why Terrorism Works: Understanding 

The Threat, Responding To The Challenge (Yale University Press 2008), p. 33. 

Note 7. UWE STEINHOFF, Torture—The Case For Dirty Harry And Against Alan Dershowitz (2006) 

23 Journal of Applied Philosophy, 345. 

Note 8. Peter Brian Barry, The Kantian Case Against Torture (2015) 90 Philosophy, 595. 

Note 9. ibid. 

Note 10. ibid. 

Note 11. Gafgen v Germany Application No. 22978/05, Merits, 1 June 2010. 

Note 12. Art. 3 European Convention on Human Rights provides as follows: ―No one shall be 

subjected to torture or to inhuman or degrading treatment or punishment‖. 

Note 13. Natasa Mavronicola, Is The Prohibition Against Torture And Cruel, Inhuman And Degrading 

Treatment Absolute In International Human Rights Law? A Reply To Steven Greer [2017] Human 

Rights Law Review, 480. 

Note 14. Steven Greer, Is The Prohibition Against Torture, Cruel, Inhuman And Degrading Treatment 

Really ‗Absolute‘ In International Human Rights Law? (2015) 15 Human Rights Law Review, 120. 

Note 15. Osman v. the United Kingdom-23452/94. 

Note 16. ibid, at para 116. 

Note 17. Neil Graffin, Gäfgen V Germany, The Use Of Threats And The Punishment Of Those Who 

Ill-Treat During Police Questioning: A Reply To Steven Greer (2017) 17 Human Rights Law Review, 

690. 

Note 18. ibid, 691. 

Note 19. (n 10), at para 110. 



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Note 20. Dominique Greene-Sanders, The Plausibility Of A Slippery Slope: Guantanamo Bay As An 

Example Of Direct/Indirect Participation In Torture And The Corruption Of Societal Morality (2014) 

516 UNF Graduate Theses and Dissertations, 53. 

Note 21. Greene-Sanders (n 19), 106. 

Note 22. (n 10), at para 124. 

Note 23. Mirko Bagaric and Julie Clarke, Tortured Responses (A Reply To Our Critics): Physically 

Persuading Suspects Is Morally Preferable To Allowing The Innocent To Be Murdered (2006) 40 

University of San Francisco Law Review, 704. 

Note 24. John Donohue, Economic Models Of Crime And Punishment (2021) 74 Social Research, 380. 

Note 25. Jeremy Waldron, Torture And Positive Law: Jurisprudence For The White House (2005) 105 

Columbia Law Review. 

Note 26. ibid, 1723. 

Note 27. Rochin v. California 342 U.S. 165 (1952). 

Note 28. Derek R. Avery and Enrica N. Ruggs, A Death In The Family: A Metaphor About Race And 

Police Brutality (2020) 39 Equality, Diversity and Inclusion: An International Journal, 769. 

Note 29. Kim Chandler, Ben White and Lindy Wilmott, 'The Doctrine Of Necessity And The Detention 

And Restraint Of People With Intellectual Impairment: Is There Any Justification?' (2015) 23 

Psychiatry, Psychology and Law,361. 

Note 30. Andrew Ashworth and Mike Redmayne, The Criminal Process (Oxford University Press 

2010), 183. 

Note 31. John Alan Cohan, 'Torture And The Necessity Doctrine' (2021) 41 Valparaiso University Law 

Review, 1609-1610. 

Note 32. Justin Clemens, 'Bentham, Torture, Modernity' (2017) 4 Cogent Arts & Humanities, 6. 

Note 33. Mordechai Kremnitzer, The Landau Commission Report—Was The Security Service 

Subordinated To The Law, Or The Law To The ―Needs‖ Of The Security Service? (1989) 23 Israel 

Law Review, 260-263. 

Note 34. Clemens (n 32). 

Note 35. Stephen Engelmann, Nudging Bentham: Indirect Legislation And (Neo-)Liberal Politics 

(2016) 43 History of European Ideas, 81. 

Note 36. ibid. 

Note 37. Clements (n 32). 

Note 38. Sanford Levinson, Torture: A Collection (Oxford University Press 2006), 291. 

Note 39. Vincent Charles Keating, The Anti-Torture Norm And Cooperation In The CIA Black Site 

Programme (2016) 20 The International Journal of Human Rights, 940. 

Note 40. ibid. 

 

 



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Note 41. Matt Apuzzo, Haeyoun Park and Larry Buchanan, Does Torture Work? The C.I.A.‘S Claims 

And What The Committee Found (Nytimes.com, 2014) 

<https://www.nytimes.com/interactive/2014/12/08/world/does-torture-work-the-cias-claims-and-what-t

he-committee-found.html> accessed 19 April 2021. 

Note 42. Robert J. Homant and Michael J. Witkowski, Support For Coercive Interrogation Among 

College Students: Torture And The Ticking Bomb Scenario (2011) 6 Journal of Applied Security 

Research, 140-150. 

Note 43. ibid. 

Note 44. ibid. 

Note 45. Jeffrey R. Tiel, Can Torture Be Justified? (2019) 18 Journal of Military Ethics, 40. 

Note 46. Mary Lowth, Does Torture Work? Donald Trump And The CIA (2017) 67 British Journal of 

General Practice, 126. 

Note 47. Alan M Dershowitz, Why Terrorism Works: Understanding The Threat, Responding To The 

Challenge (Yale University Press 2008), 250. 

Note 48. Brittany M. Wickham, Nicole M. Capezza and Victoria L. Stephenson, Misperceptions And 

Motivations Of The Female Terrorist: A Psychological Perspective (2019) 29 Journal of Aggression, 

Maltreatment & Trauma, 956-958. 

Note 49. ibid. 

Note 50. ibid. 

Note 51. R M Hare, The Ethics Of Medical Involvement In Torture: Commentary (1993) 19 Journal of 

Medical Ethics, 138-140. 

Note 52. Ibid. 

Note 53. Dershowitz (n 47), 175. 

Note 54. ibid. 

Note 55. Alan Dershowitz, The Case For Torture Warrants (Reuters, 2014) 

<http://blogs.reuters.com/great-debate/2011/09/07/the-case-for-torture-warrants/> accessed 19 April 

2021. 

Note 56. Maureen Ramsay, Can The Torture Of Terrorist Suspects Be Justified? (2006) 10 The 

International Journal of Human Rights, 110. 

Note 57. ibid. 

 

 


