Abstract:
This paper seeks to address the question can ‘officially induced error’ be a defence
to the crime of torture in international criminal law? This question is answered
within the context of the “torture memos” relied upon by senior U.S officials to
implement interrogation techniques at Guantanamo Bay and in Afghanistan that
amounted to torture and cruel, inhuman or degrading treatment. The role that these
legal memoranda played in the development of the illegal interrogation policy
provides a useful basis for investigating the appropriateness and limitations of the
defence of officially induced error as it may be applied in international criminal law.
Domestically a number of nation states have implemented versions of the officially
induced error defence on the premise that such a defence is necessary on policy
grounds where the defendant does not have the requisite criminal intent because they
relied on incorrect advice on the law. This paper concludes that the defence of
officially induced error may have a place in international criminal law, but it should
not succeed in the U.S. example because of the clear customary legal obligation to
treat detainees humanely.
