Abstract: This article explores the enduring tension between the absolute prohibition of torture and the perceived imperatives of national security. It argues that the admission of evidence obtained through torture, however compelling the security rationale, undermines both the integrity of judicial institutions and the normative foundations of international law. Through an analysis of key jurisprudence from the House of Lords, the European Court of Human Rights, and the International Criminal Court, the article concludes that legality and dignity must prevail over expedience, for evidence born of pain cannot yield justice.

I. Torture and the Architecture of Absolute Prohibition

Torture occupies a singular place in international law as a jus cogens norm, one from which no derogation is permitted. Article 2 of the United Nations Convention against Torture (“UNCAT”) declares that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture”[1]. The same principle appears in Article 3 of the European Convention on Human Rights (“ECHR”) and Article 7 of the International Covenant on Civil and Political Rights (“ICCPR”), both of which forbid derogation even in times of emergency.[2]

This prohibition has a dual character: it is both substantive, forbidding the act itself, and procedural, requiring investigation, prosecution, and exclusion of any evidentiary product of torture. The International Court of Justice confirmed its peremptory status in Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), declaring the ban erga omnes partes and binding on all states regardless of treaty relations. Domestic courts have echoed this view; in R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3), the House of Lords recognised universal jurisdiction over acts of torture precisely because such crimes “shock the conscience of mankind”[3]. Together, these rulings form the doctrinal backbone of the absolute: torture is not merely illegal, it is impossible to legalise.

Yet the early twenty-first century exposed the fragility of absolutes. The post-9/11 “war on terror” blurred moral and legal boundaries through official reinterpretations such as the 2002 “Bybee Memo,” which re-engineered the very definition of torture to exclude severe but “non-organ-failure” pain[4]. This bureaucratic alchemy transformed prohibitions into permissions, paving the way for the abuses of Abu Ghraib, Bagram, and Guantánamo Bay[5]. The jurisprudential question that followed was no longer whether torture was forbidden, but whether its fruits could nonetheless nourish the tree of justice.

II. The Jurisprudential Divide: A v. Secretary of State and Beyond

The leading common-law authority, A v. Secretary of State for the Home Department (No. 2), confronted this dilemma head-on[6]. The House of Lords held unanimously that evidence procured by torture is inadmissible “irrespective of where, or by whom, or on whose authority the torture was inflicted”[7]. Lord Bingham warned that to rely on such evidence would make the United Kingdom “complicit in the moral evil of torture”[8]. The judgment thus reasserted the constitutional principle that legality cannot be balanced away by expedience. Even so, the Law Lords differed on the evidentiary threshold required to prove torture, revealing an enduring procedural tension: how absolute can an absolute remain once filtered through rules of proof?

The ECtHR addressed that tension by constitutionalising the exclusionary rule. In Al Nashiri v. Poland and Al Nashiri v. Romania, it held that participation in CIA “black-site” operations violated Article 3 ECHR and that “no weight can be attached to statements obtained by torture or other ill-treatment”[9][10]. The Court extended the duty to prevent torture beyond national borders, imposing positive obligations to investigate, cooperate, and ensure that intelligence sharing does not perpetuate ill-treatment. In Othman (Abu Qatada) v. United Kingdom, it linked Article 3 to Article 6, holding that extradition where a “real risk” existed that torture evidence would be used at trial breached the right to a fair hearing[11] The contamination of evidence infects the entire judicial organism.

The International Criminal Court adopts the same logic at a systemic level. Article 69(7) of the Rome Statute excludes any evidence obtained in violation of human rights “if the violation casts substantial doubt on the reliability of the evidence or its admission would be antithetical to and would seriously damage the integrity of the proceedings.” In the Situation in Palestine, the Office of the Prosecutor reaffirmed that coercion not only breaches Article 55(1)(b) but also corrodes the legitimacy of international adjudication itself[12]. What unites these fora is the recognition that procedural fairness is itself a human right: no truth derived from torture can claim legality, since coercion extinguishes the autonomy that renders testimony meaningful.

III. The Illusion of Necessity

The most persistent challenge to the absolute ban is the moral fable of the “ticking bomb.” In this hypothetical, a captured terrorist knows the location of a device capable of killing thousands; torture, it is said, becomes the lesser evil that prevents a greater one[13]. Yet the narrative’s force lies not in its realism but in its seduction. It transforms the moral imagination into an emergency room where legality is placed on life support. As David Hamer observes, such scenarios are “too improbable to justify a relaxation of the rule.”[14]

Empirically, torture is a notoriously unreliable method of intelligence gathering. The U.S. Senate’s 2014 report on CIA interrogation concluded that “enhanced” techniques produced little or no actionable intelligence and often fabricated leads that wasted resources. Victims will say anything to end pain; truth, like dignity, becomes collateral damage[15]. Moreover, the invocation of necessity often masks institutional incentives rather than genuine emergencies. Once states legitimise coercion under the guise of prevention, the exception metastasises into policy.[16]

At a conceptual level, the flaw lies in the belief that the law can suspend its own authority to ensure its survival. The prohibition of torture, however, is among the rare norms that constitute the very essence of legality. To derogate from them is not to “balance” law but to exit it. The European Court in Selmouni v. France underscored that Article 3 ECHR “enshrines one of the fundamental values of democratic societies”[17]. Likewise, the ICTY in Prosecutor v. Furundžija described the prohibition as “one of the most fundamental standards of the international community”[18]. These statements mark torture as a meta-norm, a condition of legality, not one of its negotiable rules.

Recent developments underscore the unsustainability of the “necessity” narrative. In 2023, the U.S. Department of Justice withdrew its reliance on statements extracted under torture in the Guantánamo death penalty prosecutions, acknowledging that their admission would compromise the legitimacy of the proceedings themselves[19]. After decades of invoking security as justification, even the architects of the “ticking-bomb” framework recognised that the law cannot preserve its moral identity by betraying it.

Necessity, therefore, cannot coexist with absolutism. Once the law concedes that evil may be done for good ends, it erodes its own claim to moral authority. In Kantian terms, to instrumentalize the human body as a means of extraction is to invert the categorical imperative. Law ceases to be a guide for conscience and becomes its alibi. The absolute prohibition is not a constraint on justice; it is what makes justice possible.

IV. National Security as a Vehicle of Erosion

National-security discourse functions as the modern idiom of necessity. It expands executive secrecy, contracts judicial oversight, and transforms emergency into normality. The danger lies not only in clandestine torture but in the silent migration of its products into courtrooms under the guise of “intelligence assessments” or “confidential briefings.”

The Israeli–Palestinian context illustrates this drift. While Israel asserts that its counter-terrorism measures comply with international law, human-rights organisations have documented interrogation practices amounting to cruel or inhuman treatment[20]. Even Israel’s own Supreme Court, in Public Committee Against Torture in Israel v. State of Israel, rejected the “ticking-bomb” defence, holding that “moderate physical pressure” is unlawful and that necessity cannot serve as a source of authority for torture[21]. The ruling demonstrates that democracies at the front line of terrorism can still uphold the absolute, yet its continued invocation by security services reveals how easily practice outpaces principle.

At the international level, the ICC’s examination of the Situation in Palestine highlights how geopolitical pressure undermines the universality of prohibition. If international tribunals were ever to entertain evidence derived from coercion, they would not merely betray victims; they would speak with what this article calls the poisoned tongue of justice, a justice that condemns cruelty while speaking in its accent.[22]

V. The Normative Imperative

The absolute prohibition of torture is not a moral ornament of civilisation but its structural beam. As Lord Hoffmann observed, “the use of torture is dishonourable. It corrupts and degrades the state which uses it and the legal system which accepts it”[23]. Allowing torture-tainted evidence would thus transform courts from guardians of justice into accessories to illegality. The exclusionary rule is not a discretionary remedy designed to deter misconduct; it is a constitutional principle that preserves the coherence of the rule of law itself.

International jurisprudence consistently frames this exclusion as a constitutive requirement of legality. The Inter-American Court of Human Rights in Maritza Urrutia v. Guatemala held that evidence obtained through torture “has no legal effect whatsoever”[24]. Similarly, the ECtHR in El Haski v. Belgium reaffirmed that even indirect reliance on statements likely obtained under torture violates Article 6[25]. These rulings echo the logic of the “fruit of the poisonous tree” doctrine: once the root is corrupt, every branch it nourishes bears the same taint.

To operationalise this principle, states must move beyond declaratory adherence and institutionalise mechanisms that translate the absolute into procedure. Three reforms are essential:

1. Automatic exclusion of any material reasonably suspected to originate from torture, without requiring proof beyond reasonable doubt;

2. Independent verification, judicial or quasi-judicial, of intelligence obtained through foreign cooperation, to prevent the “outsourcing” of abuse; and

3. Accountability pathways ensure that officials who knowingly rely on such material face professional and criminal consequences.

These measures are not idealistic gestures but pragmatic defences of legal integrity. Prosecutorial discretion or utilitarian balancing cannot suffice where jus cogens are implicated. The prohibition of torture, as the ICJ noted in Belgium v. Senegal, imposes obligations erga omnes; every state has an interest in its observance and a duty in its enforcement. The legitimacy of adjudication therefore rests on a single maxim drawn from both equity and reason: the state may not derive advantage from its own wrong. To violate that maxim is to replace the rule of law with the law of convenience and, in doing so, to lose both security and soul.

Concluding, the endurance of the prohibition on torture measures civilisation’s resilience under stress. In moments of fear, law must hold firm where politics falters. The jurisprudence of A v. Secretary of State, Othman, Al Nashiri, and the ICC together affirm that the rule of law demands purity of source as much as accuracy of outcome. Evidence born of pain cannot yield justice. When the law speaks through torture, it speaks with a poisoned tongue and, every word it utters against tyranny becomes self-indictment.

---

[1] Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment art. 2(2), Dec. 10, 1984, 1465 U.N.T.S. 85.
[2] European Convention on Human Rights art. 3, Nov. 4, 1950, 213 U.N.T.S. 221; International Covenant on Civil and Political Rights art. 7, Dec. 16, 1966, 999 U.N.T.S. 171.
[3] Questions Relating to the Obligation to Prosecute or Extradite (Belgium v. Senegal), Judgment, 2012 I.C.J. 422, ¶¶ 99–100 (July 20); R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet (No. 3), [2000] 1 A.C. 147 (H.L.) (appeal taken from Eng.).
[4] Memorandum from Jay S. Bybee, Assistant Att’y Gen., to Alberto R. Gonzales, Counsel to the President (Aug. 1, 2002).
[5] Senate Armed Servs. Comm., Inquiry into the Treatment of Detainees in U.S. Custody (2008).
[6] A v. Secretary of State for the Home Department (No. 2), [2006] 2 A.C. 221 (H.L.) (appeal taken from Eng.).
[7] Id. at 270 (Lord Bingham)
[8] Id. at 283 (Lord Hoffmann).
[9] Al Nashiri v. Poland, App. No. 28761/11, Eur. Ct. H.R. ¶¶ 518–24 (2014); Al Nashiri v. Romania, App. No. 33234/12, Eur. Ct. H.R. ¶¶ 641–44 (2018).
[10] Al Nashiri v. Poland, supra note 8, ¶ 518.
[11] Othman (Abu Qatada) v. United Kingdom, App. No. 8139/09, Eur. Ct. H.R. ¶ 264 (2012).
[12] Situation in Palestine, Case No. ICC-01/18-160, Prosecution Request (Int’l Crim. Ct. May 2024).
[13] Alan M. Dershowitz, Why Terrorism Works ch. 4 (Yale Univ. Press 2002).
[14] David Hamer, The Admissibility of Torture-Obtained Evidence 2 (Sydney L. Sch. Legal Studies Research Paper No. 10/19, 2010).
[15] Id. at 6–7 & Id. at 13–14.
[16] Commission of Inquiry into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (Landau Commission Report) (1987).
[17] Selmouni v. France, App. No. 25803/94, Eur. Ct. H.R. ¶ 95 (1999).
[18] Prosecutor v. Furundžija, Case No. IT-95-17/1-T, Judgment ¶¶ 144–49 (ICTY Trial Chamber, Dec. 10, 1998).
[19] Department of Justice Reverses Course, Rejects Use of Evidence Obtained by Torture in Guantánamo Death-Penalty Case, Death Penalty Information Center (Aug. 2023), https://deathpenaltyinfo.org/department-of-justice-reverses-course-rejects-use-of-evidence-obtained-by-torture-in-guantanamo-death-penalty-case
[20] Human Rights Watch, Israel: Systematic Abuse of Detainees (2023).
[21] Public Committee Against Torture in Israel v. State of Israel, HCJ 5100/94 (Isr. Sup. Ct. 1999).
[22] Rome Statute of the International Criminal Court arts. 55(1)(b), 69(7), July 17, 1998, 2187 U.N.T.S. 90.
[23] A v. Secretary of State (No. 2), supra note 5, at 281 (Lord Hoffmann).
[24] Maritza Urrutia v. Guatemala, Merits, Reparations and Costs, Judgment, Inter-Am. Ct. H.R. (ser. C) No. 103 (Nov. 27, 2003).
[25] El Haski v. Belgium, App. No. 649/08, Eur. Ct. H.R. (2012).

---

Elena Mihaela Șolcă