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This chapter analyzes national and international legal materials to consider the viability of the ‘defence of necessity’ (DoN) as legal grounds for torturing in a ticking bomb situation. As the chapter explains, in order to provide such grounds the DoN would have to be shown as constituting, at least potentially, an uncapped ‘choice of evils’ justificatory defence. While there is a narrow theoretical scope for interpreting the DoN in England and the USA as having these characteristics, German and other legal systems ‘cap’ it, placing absolute restraints on ‘lesser evil’ calculations. Exempting torturing interrogators from criminal liability using the DoN violates states' international legal obligations to prevent and punish torture. In international criminal law, including the Rome Statute of the International Criminal Court, the ‘defence of necessity’ is conflated with that of duress, and its availability is closely linked to the unavailability of justifications for acts such as torture.

The defence of necessity was the route used to effectively legalize euthanasia in the Netherlands. The Dutch use of necessity focuses on the key conflict between the duty to preserve life and the duty to relieve suffering. The defence was eventually codified in 2001. The Dutch approach contrasts with the common law refusal to allow the defence of necessity to be used in murder cases, which has been re-affirmed recently in both England and Wales and Canada. These jurisdictions made differing choices regarding the use of rights and necessity as mechanisms of legal change on assisted dying. Adoption of the Dutch approach using the defence of necessity seems unlikely in common law jurisdictions. The Dutch, either through choice or happenstance, have avoided the use of constitutionally entrenched rights as the mechanism of legal change.

An examination of the differing contours of the legal regulation of assisted dying resulting from the three mechanisms of legal change as well as legislative approaches reveals interesting features. Regimes resulting from necessity or compassion as mechanisms of legal change are not restricted to cases of an autonomous request but will include termination of life without request where necessary to relieve suffering. Regimes resulting from rights as the mechanism of legal change require a competent request unless the relevant jurisdiction allows proxies to exercise rights on behalf of incompetent individuals, in which case it would be difficult to rule out the possibility of dispensing with the requirement of a competent request. Regimes resulting from necessity or compassion as mechanisms of legal change will always maintain a suffering requirement, however, which is not necessarily the case with regimes resulting from rights as the mechanism of legal change.

This chapter describes and analyzes the model of legalized torture established by a 1999 Israeli Supreme Court (as High Court of Justice, HCJ) ruling, under which interrogation of suspected terrorists has been regulated in Israel between then and the present. Declaring the Landau system as illegal, since the ‘defence of necessity’ (DoN) cannot apply a priori and interrogators have no authority to torture or ill-treat, the Court nevertheless ruled that the DoN is available ex post facto to interrogators who torture (applied ‘physical methods’) in ticking bomb situations. According to official data, dozens of Palestinians were interrogated annually using ‘extraordinary measures’ in TBSs during the second Palestinian Intifadah's first two years. Human rights organizations claim much higher numbers. No interrogators have been prosecuted. Methods, pronounced by a UN expert to amount to torture, include incommunicado detention, sleep deprivation, shackling in painful positions, and other forms of violence and humiliation.

This chapter introduces Part IV, where three issues raised by the discussion of the models in Part III are to be examined. The question of whether or not the interrogation methods used in the US and Israeli models constitute torture under international legal definitions or are even unlawful at all, for instance as ‘cruel, inhuman, or degrading treatment’ is discussed first, followed by an analysis of the ‘defence of necessity’ as a putative basis for exempting torturers in ticking bomb situations from criminal responsibility. This issue will be analysed both in the context of national and international criminal law. Thirdly, in concluding this Part, the applicability of that defence and other ex post mechanisms to the reality of states facing terrorism in the early 21st century will be discussed.

Jurisprudentially, the main drivers of legal change or attempts at legal change on assisted dying have been rights and the duty-based defence of necessity. An alternative proposal has been made in France, based on the virtue of compassion. This would be a novel basis for legal change which has little precedent. Compassion was put forward explicitly as an agent for legal change in a recent proposal by the French National Bioethics Advisory Committee to enact a ‘euthanasia exception’ which would entail diversion from the criminal process following a ‘plea of defence of euthanasia’ which would then be subject to investigation by an interdisciplinary commission. Neither rights nor the defence of necessity are likely candidates to drive forward legal change on assisted dying in France.

This chapter concludes Part IV, and examines practical aspects of applying criminal law defences to interrogators who torture terrorists. Under international law, states cannot ever justify torture and other ill-treatment — all ‘coercive’ interrogation methods are prohibited absolutely, and those used by the USA and Israel may and do constitute torture. Theoretically, an uncapped ‘lesser evil’ justificatory ‘defence of necessity’ (DoN) may very narrowly be available to torturers in certain domestic legal systems but is firmly rejected in others, as well as in international criminal law. The DoN and all other ex post models are impractical in that they require amateur torturers to face hardened terrorists in dire emergencies. In reality, the perceived recurrence of ‘ticking bomb’ and similar situations inevitably creates a priori systems of torture and impunity, as has happened in Israel. Realistically, democracies facing terrorism must choose between openly legalizing torture and never torturing (the author's recommended option).

This chapter describes and analyzes the Landau model of legalized torture, under which interrogation of suspected terrorists was regulated in Israel between 1987 and 1999, with Supreme Court approval. Shaped by the recommendations of the Landau Commission of Inquiry, which included detailed instructions to interrogators on applying psychological ‘pressure’ and ‘a moderate measure of physical pressure’, the model claimed that such instructions are lawful under the ‘defence of necessity’ provision in the Penal Law, which applies to them. Many thousands of Palestinians, far outweighing the number of those convicted of any terrorist offences during the period, underwent the Landau interrogation methods, pronounced by UN bodies to amount to torture. Methods included various combinations of incommunicado detention, sleep and sensory deprivation, forced painful positions, ‘shaking’, and other humiliating or violent methods. Those applying the techniques according to instructions invariably enjoyed impunity from prosecution.