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International criminal law liability for interrogation methods by military personnel under customary international law and the ICC Statute

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The legal literature to date has paid scant attention to the criminal liability of military officers for torturous interrogation methods. Now, however, this issue has become more topical due to recent US/UK military interventions in both Afghanistan and Iraq. In particular, numerous members of the Iraqi and Afghani regimes, political and military, have been arrested for alleged implication in international crimes, including terrorism. This article discusses the criminal law ramifications of interrogation methods, relying on the recent case law of the ICTY and of the ECHR, as well as significant judgments of the Israeli Supreme Court on this subject. I emphasize the tension between the international rule of law and the defense of necessity as such tension relates to conflicting jus cogens norms which arise during military interventions. I propose legal strategies that may be effectively applied to these controversial situations.


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