TORTURE

Wall standing, hooding, subjection to noise, deprivation of sleep, deprivation of
food and drink (the 5 techniques employed by British forces interrogating IRA
suspects – 1978 Five Techniques Case) Ireland v UK (1978) 2 EHRR 25, ECt
HR
27 Nov 2002 DoD General Counsel William J. Haynes advised Secretary of
Defense Donald Rumsfeld that it was acceptable to subject Guantanamo
detainees to 2 categories of interrogation techniques that, it has been argued,
constituted cruel treatment, if not torture.
“Cat II interrogation techniques” include: use of stress positions for up to 4 hours,
isolation for up to 30 days, sound and light deprivation, 20 hour questioning
sessions, and forced nudity.
“Cat III interrogation techniques” or “advanced counter resistance strategies”
include: exposure to cold weather or water, convincing “the detainee that death
or severely painful consequences are imminent” and “use of a wet towel to
induce the misperception of suffocation…” (Memorandum for Commander, Joint
Task Force 170, from LTC Diane E. Beaver Staff Judge Advocate, dtd Oct 11,
2002)
Prosecutions:-
Alberto Fujimori
Peru’s Supreme Court convicted former president of Peru, Alberto Fujimori, of
ordering kidnappings and of the murder of 25 individuals in the early 1990s
during an internal armed conflict with Maoist Shining Path and Tupac Amaru
guerillas. Sentence: 25 years’ confinement. His conviction is the only
instance of a democratically elected head of state being tried and convicted of
human rights abuses in his own country.
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National experiences:-
Chile
For 17 years during the Pinochet regime (1973 to 1990), Chile was a state
of torture, murder and disappearances.
(Solis p. 465)
In 2003, Chile’s President established a National Commission of Political
Imprisonment and Torture to identify those who had undergone
state-administered political imprisonment and torture during the rule of
General Augusto Pinochet. Waterboarding was among the interrogation
tortures reported by the Commission.
“[It was] aimed at causing physical and psychological suffering by
confronting them with the possibility of death. Asphyxiation was
usually caused by submerging the detainee’s head into water
several times, producing a near-death experience…Usually the
water used was contaminated or filled with debris. Other
alternatives included…forcing with high pressure great amounts
of water through hoses into the detainee’s mouth or nose.”
The Commission report describes one victim’s water torture at the hands
of military captors: “They tied my hands and legs and submerged me in a
250 liter tank that had ammonia, urine, excrement, and sea water. They
submerged me until I could not breathe anymore. They repeated it over
and over, while beating me and asking me questions. That is what they
call the submarine.”
Cristian Correa, “Waterboarding Prisoners and Justifying Torture: Lessons
for the US from the Chilean Experience,” 14-2 Human Rights Brief (Winter
2007), 21, Washington: Cntr for Human Rts. & Humanitarian Law,
American University, Washington College of Law, 21.
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Israel
HCJ 5100/94
The Supreme Court Sitting as the High Court of Justice
[May 5, 1998, January 13 1999, May 26, 1999]
Before President A. Barak, Deputy President S. Levin, Justices
T. Or, E. Mazza, M. Cheshin, Y. Kedmi, I. Zamir, T.
Strasberg-Cohen, D. Dorner
39. This decision opened with a description of the difficult reality
in which Israel finds herself. We conclude this judgment by revisiting
that harsh reality. We are aware that this decision does make it easier
to deal with that reality. This is the destiny of a democracy—it does
not see all means as acceptable, and the ways of its enemies are not
always open before it. A democracy must sometimes fight with one
hand tied behind its back. Even so, a democracy has the upper hand.
The rule of law and the liberty of an individual constitute important
components in its understanding of security. At the end of the day,
they strengthen its spirit and this strength allows it to overcome its
difficulties.
This having been said, there are those who argue that Israel’s security
problems are too numerous, and require the authorization of physical
means. Whether it is appropriate for Israel, in light of its security
difficulties, to sanction physical means is an issue that must be
decided by the legislative branch, which represents the people. We do
not take any stand on this matter at this time. It is there that various
considerations must be weighed. The debate must occur there. It is
there that the required legislation may be passed, provided, of course,
that the law “befit[s] the values of the State of Israel, is enacted for a
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proper purpose, and [infringes the suspect’s liberty] to an extent no
greater than required.” See article 8 of the Basic Law: Human Dignity
and Liberty.
France
During its war in Algeria (1954 – 1962) the French forces tortured Algerian
nationalists (Front de Libération Nationale or FLN). The FLN had become a
classic insurgent force. The French had just been defeated by the North
Vietnamese at the battle of Dien Bien Phu. Encouraged by the French defeat
in Vietnam, the FLN planned to evict the French in a bid for national
independence. Beginning in 1954, from bases in neighbouring Tunisia they
launched strikes on public buildings, communications centres and police and
military posts (symbols of the French regime). Ultimately 415,000 French
troops were stationed in Algeria to fight the FLN. The French settlers (colons)
and captured soldiers were the initial targets (kidnappings, murders and
mutilations). FLN victims expanded to non-supportive civilians. Schools,
shops and cafés became FLN bombing targets.
The FLN military men had also been told, when forced to talk, to
give up the names of their counterparts in the rival organization,
the more accommodationist MNA (National Algerian Movement).
Not very knowledgeable in the subtleties of Algerian nationalism,
the French soldiers helped the FLN liquidate the infrastructure of
the more cooperative organization and tortured MNA members,
driving them into extreme opposition.
…
Torture drifted headlong into sadism, continuing long after
valuable information could be retrieved. For example, soldiers
arrested a locksmith and tortured him for three days. In his pocket,
the locksmith had bomb blueprints with the address of an FLN
bomb factory in Algiers. The locksmith bought time, the bombers
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relocated and the raid by the French three days later fell on open
air. Had the soldiers been able to read Arabic, they would have
found the bomb factory days earlier. But they were too busy
torturing. As one would predict, engaging in torture prevented the
use of ordinary — and more effective — policing skills.
(Incidentally, the French could not believe that the most wanted
man in the casbah had spent months only 200 yards from the
headquarters of the army commandant.)
…
Actually, there was one case in the Battle of Algiers in which
torture did reveal important information.
In September 1957, in the last days of the battle, French soldiers
detained a messenger known as “Djamal.” Under torture, Djamal
revealed where the last FLN leader in Algiers lay hidden. But that
wasn’t so important; informants had identified this location
months before. The important information Djamal revealed was
that the French government had misled the military and was
quietly negotiating a peace settlement with the FLN. This was
shocking news. It deeply poisoned the military’s relationship with
the civilian government, a legacy that played no small part in the
collapse of the Fourth Republic in May 1958 and in the attempted
coup by some French military officers against President De
Gaulle in April 1961.
The French won the Battle of Algiers primarily through force, not
by superior intelligence gathered through torture. Whoever
authorized torture in Iraq undermined the prospect of good human
intelligence. Even if the torture at Abu Ghraib served to produce
more names (“actionable intelligence”) and recruit informants,
torture in the end polarized the population, eliminating the middle
that might cooperate. Dividing the world into “friends” and
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“enemies,” those who are with us or against us, meant that we lost
the cooperation of those who wished to be neither or who were
enemies of our enemies.
Whoever authorized torture in Afghanistan and Iraq also
destroyed the soldiers who were ordered to perform it. Studies of
torturers show that they would rather work as killers on death
squads, where the work is easier. Torture is hard, stressful work.
Many torturers develop emotional problems, become alcoholics,
beat their families and harbor a deep sense of betrayal toward the
military brass that hangs them out to twist in the wind. The
soldiers at Abu Ghraib had dreams, dreams that democracy
promised to fulfill, dreams that now may never be fulfilled thanks
to the arrogance of their superiors.
Those who authorize torture need to remember that it isn’t
something that simply happens in some other country. Soldiers
trained in stealthy techniques of torture take these techniques
back into civilian life as policemen and private security guards. It
takes years to discover the effects of having tortured. Americans’
use of electric torture in Vietnam appeared in Arkansas prisons in
the 1960s and in Chicago squad rooms in the 1970s and 1980s.
http://www.salon.com/2004/06/21/torture_algiers/
United States
Abu Ghraib Prison (also known as Baghdad Correctional Facility)
2004 – members of 320th Military Police Battalion: rape, sodomy, homicide
charges under UCMJ.
Manadel al-Jamadi died in Abu Ghraib prison after being interrogated and
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tortured by a CIA officer and a private contractor. The torture included
physical violence as strappado hanging, whereby the victim is hung from
the wrists with the hands tied behind the back. His death has been labeled
as a homicide by the US military, but neither of the two men who caused
his death have been charged. The private contractor was granted qualified
immunity.
The US Department of Defense removed seventeen soldiers and officers
from duty, and eleven soldiers were charged with dereliction of duty,
maltreatment, aggravated assault and battery. Between May 2004 and
March 2006, eleven soldiers were convicted in courts martial, sentenced
to military prison, and dishonorably discharged from service. Two soldiers,
Specialist Charles Graner, and his former fiancée, Specialist Lynndie
England, were sentenced to ten years and three years in prison,
respectively, in trials ending on January 14, 2005 and September 26, 2005.
The commanding officer of all Iraq detention facilities, Brigadier General
Janis Karpinski, was reprimanded for dereliction of duty and then demoted
to the rank of Colonel on May 5, 2005. Col. Karpinski has denied
knowledge of the abuses, claiming that the interrogations were authorized
by her superiors and performed by subcontractors, and that she was not
even allowed entry into the interrogation rooms. (Wikipedia entry on Abu
Ghraib torture and prisoner abuse)
Torture under domestic legislation:-
United States of America
War Crimes Act 1996
Uniform Code of Military Justice
Code of Conduct
England
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Torture is an offence in the UK if undertaken by a public official, whether or not a
UK citizen or whether or not the torture was carried out in the UK. Section 134 of
the Criminal Justice Act 1988 provides:
(1) A public official or person acting in an official capacity, whatever his
nationality, commits the offence of torture if in the United Kingdom or elsewhere
he intentionally inflicts severe pain or suffering on another in the performance or
purported performance of his official duties.
(2) A person not falling within subsection (1) above commits the offence of
torture, whatever his nationality, if-
(a) in the United Kingdom or elsewhere he intentionally inflicts severe pain or
suffering on another at the instigation or with the consent or acquiescence-
(i) of a public official; or (ii) of a person acting in an official capacity; and
(b) the official or other person is performing or purporting to perform his official
duties when he instigates the commission of the offence or consents to or
acquiesces in it.
Faryadi Zardad, an extremely unpleasant Afghan warlord, became the first
person to be convicted on the basis of the universal jurisdiction introduced by
these provisions in 2005. The High Court accepted that he was de facto a public
official. Zardad had been found living in Streatham, having entered the UK under
a false passport.
Torture as a LOAC violation
1907 Hague Regulation IV
Article 4 (by implication)
1949 Geneva Convention Common Article 3
Common Article 50/51/130/147
1977 Additional Protocol I, Article 75.2 (ii)
1977 Additional Protocol II, Article 4.2 (a)
Statutes of the ICTY and ICTR
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Rome Statute of the ICC, Article 8(2) (a) (ii) -1
Torture defined
The text of the United Nations Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment (CAT), was adopted by the
United Nations General Assembly on 10 December 1984 and, following
ratification by the 20th state party, it came into force on 26 June 1987. 26 June
is now recognised as the International Day in Support of Victims of Torture, in
honour of the Convention. As of September 2012, the Convention had 151
parties.
(The Optional Protocol to the Convention Against Torture (OPCAT) entered into
force on 22 June 2006 as an important addition to the UNCAT. As stated in
Article 1, the purpose of the protocol is to “establish a system of regular visits
undertaken by independent international and national bodies to places where
people are deprived of their liberty, in order to prevent torture and other cruel,
inhuman or degrading treatment or punishment.” For a long time, the
necessary support for an optional protocol was not forthcoming. As a
consequence, the UN Committee Against Torture (CAT) had at its disposal only
relatively weak instruments: it could analyse and discuss the self-reports of the
respective governments and create the institution of a Special Rapporteur on
Torture. But neither CAT nor its Special Rapporteur had the power to visit
countries, let alone inspect prisons, without the respective government’s
permission. In 1987, the Council of Europe realized the original idea on a
regional level with its European Convention for the Prevention of Torture. On this
basis, the European Committee for the Prevention of Torture has demonstrated
that regular visits, reports and recommendations to the governments as well as
the publication of these reports and the governments’ reactions the viability of
this model. This in turn led to a breakthrough within the United Nations: OPCAT
was created and opened for signatures on 18 December 2002 by the UN
General Assembly.)
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Torture, according to the CAT (an advisory measure of the UN General
Assembly) is:
…any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him, or a
third person, information or a confession, punishing him for an act he or a third
person has committed or is suspected of having committed, or intimidating or
coercing him or a third person, or for any reason based on discrimination of any
kind, when such pain or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in, or
incidental to, lawful sanctions.
Article 7 of the Rome Statute establishing the International Criminal Court:
“Torture” means the intentional infliction of severe pain or suffering, whether
physical or mental, upon a person in the custody or under the control of the
accused; except that torture shall not include pain or suffering arising only from,
inherent in or incidental to, lawful sanctions;
The CAT definition is altered by the International Criminal Tribunal for the
Former Yugoslavia’s Kunarac decision, in that the involvement of a public official
is not required.
– Paras 482 to 489 Prosecutor v Kunarac (decision on 22 Feb 2001):
482. The Trial Chamber in Furundžija held that a conventional provision could have an
extra-conventional effect to the extent that it codifies or contributes to developing or
crystallising customary international law.1194 In view of the international instruments
and jurisprudence reviewed above, the Trial Chamber is of the view that the definition
of torture contained in the Torture Convention cannot be regarded as the definition of
torture under customary international law which is binding regardless of the context in
which it is applied. The definition of the Torture Convention was meant to apply at an
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inter-state level and was, for that reason, directed at the states’ obligations. The
definition was also meant to apply only in the context of that Convention, and only to
the extent that other international instruments or national laws did not give the
individual a broader or better protection. The Trial Chamber, therefore, holds that the
definition of torture contained in Article1 of the Torture Convention can only serve, for
present purposes, as an interpretational aid.
483. Three elements of the definition of torture contained in the Torture Convention are,
however, uncontentious and are accepted as representing the status of customary
international law on the subject:
(i) Torture consists of the infliction, by act or omission, of severe pain or suffering,
whether physical or mental.1195
(ii) This act or omission must be intentional.1196
(iii) The act must be instrumental to another purpose, in the sense that the infliction of
pain must be aimed at reaching a certain goal.1197
484. On the other hand, three elements remain contentious:
(i) The list of purposes the pursuit of which could be regarded as illegitimate and
coming within the realm of the definition of torture.
(ii) The necessity, if any, for the act to be committed in connection with an armed
conflict.
(iii) The requirement, if any, that the act be inflicted by or at the instigation of or with
the consent or acquiescence of a public official or other person acting in an official
capacity.
485. The Trial Chamber is satisfied that the following purposes have become part of
customary international law: (a) obtaining information or a confession, (b) punishing,
intimidating or coercing the victim or a third person, (c) discriminating, on any ground,
against the victim or a third person. There are some doubts as to whether other purposes
have come to be recognised under customary international law. The issue does not need
to be resolved here, because the conduct of the accused is appropriately subsumable
under the above-mentioned purposes.
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486. There is no requirement under customary international law that the conduct must
be solely perpetrated for one of the prohibited purposes. As was stated by the Trial
Chamber in the Delalic case, the prohibited purpose must simply be part of the
motivation behind the conduct and need not be the predominating or sole purpose.1198
487. Secondly, the nature of the relationship between the underlying offence – torture –
and the armed conflict depends, under the Tribunal’s Statute, on the qualification of the
offence, as a grave breach, a war crime or a crime against humanity.1199 If, for
example, torture is charged as a violation of the laws or customs of war under Article 3
of the Statute, the Trial Chamber will have to be satisfied that the act was closely related
to the hostilities.1200 If, on the other hand, torture is charged as a crime against
humanity under Article 5 of the Statute, the Trial Chamber will have to be convinced
beyond reasonable doubt that there existed an armed conflict at the relevant time and
place.
488. Thirdly, the Torture Convention requires that the pain or suffering be inflicted by
or at the instigation of or with the consent or acquiescence of a public official or other
person acting in an official capacity. As was already mentioned, the Trial Chamber must
consider each element of the definition “from the specific viewpoint of international
criminal law relating to armed conflicts.”1201 In practice, this means that the Trial
Chamber must identify those elements of the definition of torture under human rights
law which are extraneous to international criminal law as well as those which are
present in the latter body of law but possibly absent from the human rights regime.
489. The Trial Chamber draws a clear distinction between those provisions which are
addressed to states and their agents and those provisions which are addressed to
individuals. Violations of the former provisions result exclusively in the responsibility
of the state to take the necessary steps to redress or make reparation for the negative
consequences of the criminal actions of its agents. On the other hand, violations of the
second set of provisions may provide for individual criminal responsibility, regardless
of an individual’s official status. While human rights norms are almost exclusively of
the first sort, humanitarian provisions can be of both or sometimes of mixed nature.
This has been pointed out by the Trial Chamber in the Furundžija case.
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What constitutes torture cannot be reduced to a single definition. Solis refers to
the concept of torture being akin to a moving target, not dissimilar to the concept
of “reasonableness”. The danger of limiting the definition of torture is the
evasion an accused is likely to carry out to avoid liability. Torture depends on
the individual and the situation. Torture is not always physical. It can involve
psychological pain and suffering as well.
Three categories of torture emerge:
. torture as a crime against humanity under international criminal law as
applied by international criminal bodies such as ICTY;
. torture as a crime under customary international law, relating particularly to
the CAT, as prosecuted most often in domestic courts;
. torture as a war crime.
Laws against torture
On 10 December 1948 the United Nations General Assembly adopted the
Universal Declaration of Human Rights (UDHR). Article 5 states, “No one shall
be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.” Since that time, a number of other international treaties have
been adopted to prevent the use of torture. Two of these are the United Nations
Convention Against Torture and for international conflicts the Geneva
Conventions III and IV.
States that ratified the CAT have a treaty obligation to include the
provisions into municipal law.
Article 7 of the 1966 International Covenant on Civil and Political Rights
(“ICCPR”) provides that no one shall be subject to torture or to cruel, inhuman or
degrading treatment or punishment.
Article 7 (Crimes against humanity) (1) (f) torture. Rome Statute establishing
the ICC.
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Geneva Conventions
The third (GCIII) and fourth (GCIV) Geneva Conventions are the two most
relevant for the treatment of the victims of conflicts. Both treaties state in
Common Article 3, in similar wording, that in a non-international armed conflict,
“Persons taking no active part in the hostilities, including members of armed
forces who have laid down their arms… shall in all circumstances be treated
humanely.” The treaty also states that there must not be any “violence to life and
person, in particular murder of all kinds, mutilation, cruel treatment and torture”
or “outrages upon personal dignity, in particular humiliating and degrading
treatment”.
GCIV covers most civilians in an international armed conflict, and says they are
usually “Protected Persons”. Under Article 32, protected persons have the
right to protection from “murder, torture, corporal punishments, mutilation and
medical or scientific experiments…but also to any other measures of brutality
whether applied by non-combatant or military agents”.
GCIII covers the treatment of prisoners of war (PWs) in an international armed
conflict. In particular, Article 17 states that “No physical or mental torture, nor
any other form of coercion, may be inflicted on prisoners of war to secure from
them information of any kind whatever. Prisoners of war who refuse to answer
may not be threatened, insulted or exposed to unpleasant or disadvantageous
treatment of any kind.” PW status under GCIII has far fewer exemptions than
“Protected Person” status under GCIV. Captured enemy combatants in an
international armed conflict automatically have the protection of GCIII and are
PWs under GCIII unless they are determined by a competent tribunal to not be a
PW (GCIII Article 5).
1977 Additional Protocol (AP) 1 (protection of victims of international armed
conflicts) and 2 (protection of victims of non-international armed conflicts)
Why torture?
We have looked at various national examples of torture being employed, the
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definitions and laws prohibiting torture. Why is torture used? Is it effective in
that purpose?
Consider the comment made by an American commentator in response to the
2006 presidential speech that cited a need for harsh interrogation tactics (p.459
of Solis):
The president of the United States. Interrogation by torture. This just
can’t be happening…It is not possible for our elected representatives to
hold any sort of honorable “debate” over torture…[C]ivilized nations do
not debate slavery or genocide, and they don’t debate torture,
either…There is one ray of encouragement: the crystal clear evidence
that the men and women of our armed forces want no part of torturing
anybody…
In support of its torture bill, all the White House could
manage to squeeze out of five top Pentagon lawyers was a
four-sentence letter of non-objection that had all the
enthusiasm of a hostage tape.
Colin Powell’s strongly worded rejection of torture should
have embarrassed and chastened the White House, but this is
a president who refuses to listen to critics of his “war on
terrorism” — even critics who helped design and lead it.
There should be no need to spell out the practical reasons
against torture, but, for the record, they are legion. As Powell
and others have argued, if the United States unilaterally
reinterprets Common Article 3 of the Geneva Conventions to
permit torture, potential adversaries in future conflicts will
feel justified in doing the same thing. Does the president want
some captured pilot to be subjected to the tortures applied in
the CIA prisons?
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And, as has been pointed out by experts, torture works
— far too well. Torture victims will tell what they
know, and when their knowledge is exhausted they
will tell their torturers what they want to hear, even if
they have to invent conspiracies. The president says
that torturing al-Qaeda kingpins foiled serious plots
against America, but how do we know those plots were
real? How can we be sure that some of the detainees at
Guantanamo aren’t shopkeepers or taxi drivers who
were snatched because Khalid Sheik Mohammed ran
out of real terrorists to implicate and began naming
acquaintances so he wouldn’t get waterboarded again?
But we shouldn’t have to talk about the practicalities of torture, because
the real question is moral: What kind of nation are we? What kind of
people are we?
– Eugene Robinson, “Torture is torture,” Washington Post, Sept 19, 2006, A21
WHY USED? EFFECTIVE in that PURPOSE?
….
David Luban (professor and ethicist), “Liberalism, Torture, and the Ticking Time
Bomb”, 91 Va. L. Review (2005) at 1429:
A person tortures with one of 5 aims or purposes:
1. as a form of victor’s pleasure (demonstrate mastery and to humiliate the loser)
2. to instill terror (Saddam and Hitler tortured opponents into submission)
3. punishment – to deter opposition and demonstrate power of the government
or ruler, employed until the last 2 centuries;
4. to extract confessions (premodern legal rules required eye witnesses or
confessions for criminal convictions, perversely resulting in judicial torture for
example, there has been no lawfully sanctioned torture in England and Wales
since 1640 and in Scotland since 1708. The Bill of Rights 1689 banned the
infliction of ‘cruel and unusual punishment’. – also for religious purpose, the
Inquisition and the Salem witchcraft trials);
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5. Intelligence gathering – torture to extract information from prisoners who will
not unwillingly talk.
(last one of most relevance to this course, torture applied during times of armed
conflict, its reasons, justifications, results and its LOAC/IHL issues.)
Compare law enforcement interrogations: these seek to obtain a confession
from a suspect, rather than to gather accurate, useful intelligence.
In the military context, interrogation (as opposed to torture) of a senior enemy
officer has greater potential value than interrogation of a junior, front line soldier.
Consider the comments of a former commander of Guantanamo’s detention
centre, Major General Geoffrey Miller: on a monthly basis as much as 50% more
actionable intelligence was obtained from prisoners AFTER coercive practices
like hooding, stripping, and sleep deprivation were BANNED and a system
encouraging rapport between prisoner and interrogator was initiated. Miller
said, “In my opinion, a rapport-based interrogation that recognizes respect and
dignity, and having well-trained interrogators, is the basis by which you develop
intelligence rapidly and increase the validity of that intelligence.
Is information gained via torture reliable? Or is it simply the person suffering the
torture saying anything to his tormentors to see the end of the torture?
The need for instant actionable intelligence is not often the case. Those who
seek to justify torture often rely upon the ticking time bomb example (Solis
p.466): Powerful bomb planted in a heavily populated area. Military or civilian
authorities have captured a suspected terrorist who, the authorities are confident,
knows where the bomb is located. If the bomb goes off in an hour it will kill 1
million people. The prisoner is not talking. One life versus 1 million innocent
lives.
If torture is acceptable for 1 million lives, what is the case if there are 1,000 lives
at risk or 100 lives at risk? Where is the line where torture is no longer
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acceptable?
Ticking time bomb scenario is an intellectual fraud. Assumptions: there is a
bomb. Authorities know it is planted in a public place. Correct person has
been arrested. That person knows there is a bomb and its location. The
torturer is transformed from a criminal to a public saviour.
This explains how torture might be categorically prohibited by
international law, yet at the same time be subject to a defence
of necessity or duress under international criminal law.
The old debate on the (Israeli) ticking bomb cases must be
revisited in the light of the increasing threat by terrorist
bombers and a recent German kidnapping case. Both cases
may be combined as one ‘model case’ to test whether the claim
of a truly absolute prohibition of torture can really stand in
extreme situations where the use of torture may be the only
means to obtain the necessary information to prevent great(er)
harm for innocents. Even in these situations the absolute
prohibition against torture must not be relaxed ex ante and in
abstracto — given the unequivocal situation in international
law and the negative policy implications a flexible approach
would have. However, this does not necessarily entail the
individual investigator’s criminal responsibility ex post and in
concreto given the conflicting duties — to respect the
(terrorist) suspect’s human dignity and at the same time
(actively) protect potential victims of this suspect’s action — he
has to face. A just solution to this dilemma can only be found
by distinguishing between, on the one hand, the state and the
individual level, and on the other hand, between (non-)
justification (wrongfulness) of the act of torture and excuse
(personal blameworthiness) of the torturer. Thus, the
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investigator may be excused, but his conduct not justified,
since this would convert the torture into something lawful or
even socially acceptable and thus undermine the absoluteness
of the conduct rule not to torture. This result is developed in
the last part of this article taking into account the relevant
provisions of the Israeli and German Penal Codes and the ICC
Statute (Part 4). Before the Israeli and German cases can be
compared (Part 1), some clarifications as to the status and
rationale of the international prohibition of torture must be
made (Part 2) and a ‘model case’, where preventive torture may
be necessary should be considered (Part 3).
Kai Ambos (Journal of International Criminal Justice)
Does a threat to inflict pain constitute torture?
Kidnapping and murder of Jakob von Metzler (11y/o son of prominent banker).
27-year-old law student, Magnus Gäfgen, was convicted of murder and
sentenced to life imprisonment.
In 2002 Gäfgen was arrested by Frankfurt police when he collected the ransom
money. He initially resisted interrogation as to the whereabouts of the boy
Jakob. Frankfurt Police Vice-President Wolfgang Daschner ordered a
subordinate officer to tell Gäfgen that the police were prepared to inflict pain on
him that “he would never forget” and that a police specialist in such matters was
flying to Frankfurt for that purpose. Gäfgen promptly revealed that he had
accidentally killed the child during the initial kidnapping and gave police the
body’s location. Gäfgen was unharmed and untouched by police, although a
specially trained officer had in fact been dispatched to Frankfurt.
Daschner and the subordinate officer were also tried, giving rise to international
debate heavily weighted in support of the policemen. The German court trying
the policemen dodged the legal issue of threatening to torture. (P446 Solis)
20
But see the European Court of Human Rights 1982 decision of Campbell and
Cosans v UK (Feb 1982) 4 EHRR 293 at para 26. A threat to torture which is
“sufficiently real and immediate” itself constitutes torture.
Task Force 145 (leader was Major Matthew Alexander) employed calculated
patient conversation and noncoercive questioning not violence or pressure.
Task Force 145 obtained actionable intelligence which led to the 2006 targeted
killing of Abu Musab al-Zarqawi (savage Jordanian leader of Al Qaeda in Iraq).
Alexander – “A trained, experienced interrogator with a Koran can get more
information from a subject in ten minutes than a heavy hand can extract in three
days.” (Maj. Alexander USAF “Interrogating Terrorists”, address to student
body, Command & Staff College, Marine Corps University, Quantico, Virginia
Jan 23, 2009)
US Army (September 2006) issued Human Intelligence Collection Operations
(Dept of Army Field Manual 2-22.3). “In accordance with the Detainee
Treatment Act of 2005 (DTA, see President Bush’s overriding “signing statement”
indicating his authority as Commander in Chief to trump the restrictions of the
DTA), the only interrogation approaches and techniques that are authorized for
use against any detainee, regardless of status or characterization, are those
authorized and listed in this Field Manual.”
The manual directs:
“Any inhumane treatment – including abusive practices, torture, or cruel,
inhuman, or degrading treatment or punishment…is prohibited and all instances
of such treatment will be reported immediately…Beyond being impermissible,
these unlawful and unauthorized forms of treatment are unproductive because
they may yield unreliable results, damage subsequent collection efforts, and
result in extremely negative consequences at national and international levels.”
(underlining added) – ABSOLUTIST position against torture. (Compare
consequentialists’ attitude to torture: torture may be necessary in extreme
circumstances. Benefits outweigh the costs.
21
Consider Major Alexander’s comment (veteran USAF interrogator) “Coerce
information and the subject will tell you the location of a safe house. Convince
the subject to give you the information and he’ll tell you it’s booby-trapped.”

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