Last week, the European Court of Human Rights (ECHR) in Strasbourg announced a decision in a German case, Gäfgen v. Germany, that is relevant to the “war on terror,” even though the case itself had nothing to do with terrorism.
In 2002, a German law student, Magnus Gäfgen, kidnapped and killed an 11-year-old child. In the course of subsequent ransom demands, he was caught by the police, who, at the time, believed the child was still alive. Under orders from a superior, a police officer threatened Gäfgen with great pain if he didn’t tell them where the boy was (they were prepared to follow through on the threat, though this never happened). Gäfgen thereupon confessed, and the boy’s body was found. Later, after being informed that the coerced confession could not be used against him, he repeated it.
The German courts found him guilty, based on the later confession; Gäfgen then appealed to Strasbourg, claiming his rights to freedom from torture and fair trial had been violated. The police officer and his superior, meanwhile, were found guilty of coercion and instruction to coerce. Because their motive was saving the child’s life, however, and the situation was one of great pressure, the German court found mitigating circumstances and suspended their sentences—in effect finding them guilty but refraining from punishing them.
The case set off a countrywide debate in Germany about the legitimacy of torture, obviously playing into broader concerns with the use of torture in the “war on terror” and the revelations from Afghanistan, Abu Ghraib, and Guantanamo Bay.
The German case seems like a form of the classic “ticking bomb” hypothetical that’s often used to justify torture (though experts say it’s very rare for a situation to be this clear-cut): You’ve captured a terrorist who knows where a bomb is. It’s set to go off in an hour. Can you torture him to get the information and prevent the deaths of other people? To many (and to a majority of Germans in the Gäfgen case, according to surveys) this seems like a no-brainer. How can the bodily integrity of a single guilty person (and not even his life; we’re not, theoretically, talking about killing someone here, just about hurting him) possibly be more significant than the lives of hundreds or thousands of innocent victims—or for that matter, even one innocent victim?
Of course, it’s hardly that simple. Torture on state authority is categorically forbidden by the major international human rights conventions and the Convention against Torture; there are no exceptions, not even for preventing the deaths of others. Inhuman and degrading treatment is also forbidden. Indeed, both the ECHR (in a decision on interrogation techniques used by the British in Northern Ireland) and the Israeli supreme court (in a 1999 decision on interrogation techniques used by Israeli security forces) found that inhuman or degrading treatment that did not rise to the level of torture was still prohibited under, respectively, European and Israeli law. Until recently, torture was an absolute taboo: while we all know it’s practiced, even the worst governments are unlikely to openly admit using torture as policy. The idea of inflicting pain on a human being, particularly to achieve specific ends—punishment, confession, and even prevention—seems to violate the most basic tenets of civilized society, in particular respect for human dignity. (While recent US policy has rested on very different notions of what constitutes torture and whether or not it is permissible, those interpretations are aberrational and have since been rejected even by most policymakers).
Those who argue against making an exception for “preventive torture” argue that sanctioning torture before the fact in any situation sets in motion a slippery slope that would ultimately make torture in less-exceptional cases acceptable (a convincing argument, experience tends to show). The dangers of torturing the wrong person, too, are apparent: how can we be certain a person who has been captured in what is likely to be a highly pressured situation really has the knowledge we seek? Interrogators themselves, meanwhile, tell us that torture doesn’t work and generally elicits false information, and that better information can be obtained in less coercive fashion. Indeed, interrogators and military officers have harshly criticized the television show “24” for presenting torture as a legitimate and effective option.
While the Gäfgen case would seem to argue for the efficacy of even mere threats of torture as a preventive method, some have pointed out that this was not, in fact, the classic “ticking bomb” scenario. For one thing, the child was already dead in this case, which might have made Gäfgen less willing to confess; it’s impossible to know what methods would have worked best had the victim still been alive. And of course, Gäfgen, a law student with a tendency towards self-pity, was a far cry from the fanatical “ticking bomb” terrorist.
A while back, when I told a German human rights lawyer that I had my students argue both for and against the ban on torture, he lectured me on the dangers of even opening up the discussion. But that seems unrealistic, since—as the Gäfgen case shows—it will happen no matter how broadly prohibited, committed not just by “bad” people for “bad” reasons, but also by people with the best of motives. How, then, should the legal system deal with it?
Harvard Law professor Alan Dershowitz has proposed that, since torture will inevitably happen in situations such as this, we should bring it out in the open by creating “torture warrants,” along the lines of search warrants, requiring probable cause and a judge’s order. Few are willing to go that far in giving torture an official stamp of approval. But some have suggested that a legal defense of necessity or self-defense should be allowed, thereby negating the act’s criminality: just as killing in self-defense is not murder, torture to prevent a greater evil would not be criminal.
The solution found by the German courts—essentially ratified, in this case at least, by the European Court of Human Rights, which ultimately found against Gäfgen—did not go even this far; no legal excuse was found for the officers’ behavior. The ECHR found that the threat of torture counted as inhuman treatment, and in its decision, the prohibition on torture and inhuman and degrading treatment remains absolute. The act is still criminal. However, it also found, as did the German courts, that the specific situation (including, in this case, the officers’ motives, the type and duration of the mistreatment, absence of evidence of lasting harm, and the remedies offered) could be invoked to mitigate punishment. The human rights court also found that the officers’ conviction and the German courts’ refusal to use the tainted evidence were sufficient compensation for, and correction of, the human rights violation.
The case is perhaps not a typical one, but the questions it raises are crucial today. The ECHR’s decision seems to have found a way of acknowledging, in certain narrowly circumscribed circumstances, the difficult dilemmas sometimes faced by government officials trying to protect security, while at the same time keeping the prohibition on mistreatment firmly in place. It may not satisfy either side in the debate entirely, but seems to be a reasonable middle ground.
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Belinda Cooper, a senior fellow at the World Policy Institute and co-founder of its Citizenship and Security Program, is an adjunct professor at New York University’s Center for Global Affairs. Cooper, the editor of War Crimes: The Legacy of Nuremberg, teaches and lectures on human rights, international law, and the “war on terror.”