Officially Induced Error: A Defence for Torture?

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.