32 |
P age b
The Committee likewise observes that no justification or extenuating circumstances maybe invoked to excuse a violation of article 7 for any reasons, including those based on an order from a superior officer or public authority.
149
The UNCAT, under its article 2 provides the same maxim of non-derogability of torture in any circumstance that justify the violation of prohibition of torture. Article 2 (2) of UNCAT provides that No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, maybe invoked as a justification of torture. Boulesbaa observed that the prohibition of torture is non-derogable in all circumstances arguing the term whatsoever employed to close the door to a construction of the article which could lead to an interpretation that the exceptional circumstances referred to … are exhaustive
‟.
150
In January 2008 the CAT under its GC No. 2 stated that no justification for torture in any scenario under any circumstance including any threat of terrorist acts‟
151
is acceptable. The committee also reiterates its view in its concluding observation against Turkey in
2016 and coincided that „… the committee draws the attention of the state party to paragraph 5 of its GC No. 2 by state parties, in which it states, inter alia, the exceptional circumstances also include any threat of terrorist act‟.
152
The above discussion shows that the supreme law of the land, the FDRE Constitution, is similar with international law (ICCPR and UNCAT) which prohibit torture absolutely and allows no legal and factual ground for the justification of torture. However, it is also important to consider subsidiary laws particularly the Criminal Code (CC) as it forms the part of Ethiopian legal order and special laws that govern possible justification for violation of laws for avoiding criminal responsibility. The CC provides general defenses which can be raised by the accused during trial.
153
Among others defense of necessity is the main. The scope of application in terms of which crimes it is applicable is not provided. As general rule it is applicable for all crimes proscribed in
149
HRC GC No. 20, Para 3. A. Boulesbaa, The UN. Convention on Torture and the Prospects for Enforcement (Hague Martinus Nijhoff Publishers 1999) 79. CAT, GC No. 2, Para 5. CAT, Concluding Observation on the Fourth Periodic Reports of Turkey, UN doc. CAT/C/T/CO/4, 2016, Para
12; HRC, Concluding Observation on the 5
th
Periodic Report of Canada, UN doc. CCPR/C/CAN/CO/5, 2005, Para
15; Paez v Sweden, Communication No. 63/1997, CAT, Judgment, 1997, Para 14. CC, Art. 68 through 81.
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