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Crime Law Soc Change (2014) 62:337353

DOI 10.1007/s10611-013-9469-3

Torture and the fight against terrorism


Linus Sonderegger

Published online: 26 October 2013


# Springer Science+Business Media Dordrecht 2013

Abstract Through tragic events, such as the terrorist attacks of September 11, 2001
or the kidnapping case of Jakob von Metzler the absolute prohibition against torture is
increasingly challenged, even in steadfast rule-of-law states. This article deals with
this development and discusses the different approaches relativizing the absolute ban
on torture. As a historical introduction this article starts with a brief overview of the
history of interrogational torture. In a second part the article focuses on the ban on
torture in international law and the quality of this prohibition as an absolute and nonderogable provision. In a next step the article analyses (the implementation of) the
prohibition on torture in German and US law. In a last step the different models
challenging the absoluteness of the prohibition (the ex ante authorisation and the ex
post justification) are analysed and critically discussed concluding that the ban on
torture, cruel, inhuman and degrading treatment should not be relativized on an ex
ante level but arguingin extreme casesfor the possibility of an excuse as regards to
a criminal sanction for the interrogator breaking the absolute prohibition.
Introduction
Through tragic events, such as the terrorist attacks of September 11, 2001 or the
kidnapping case of Jakob von Metzler1, the necessity and legitimacy of the absolute
prohibition against torture is increasingly challenged, even in steadfast rule-of-law states.
In light of the fact that torture was an established, legitimate component of judicial
procedure from antiquity up until the modern period, the absolute prohibition of torture
on both the international and national levels constitutes a fundamental achievement of
1
The facts of the case are as follows. In 2002 Jakob von Metzler, a 12 year old son of a banking family in
Frankfurt am Main, Germany, was kidnapped. The kidnapper issued a ransom demand to the boys parents.
After the kidnapper collected the ransom, he was arrested. During the subsequent interrogation, the police
officers threatened the applicant that he would face considerable suffering if he persisted in refusing to
disclose the childs whereabouts. They considered that threat necessary as the childs life was in great
danger from lack of food and the cold. As a result of those threats, the applicant disclosed where he had
hidden the child. However, the child was already dead as he was killed by the kidnapper soon after the
kidnapping. For the facts of the case compare ECHR, Judgment of 1 June 2010, Gfgen v. Germany, 9 et
seqq.

L. Sonderegger (*)
St.Gallen, Switzerland
e-mail: Linus.Sonderegger@yahoo.de

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modern human rights protection and is considered the epitome of rule-of-law government.
However, the discrepancy between the prohibition in international law and actual state
practice is greater for torture than it is for any other human right.
The question of how much human dignity modern society can still afford in
interrogation situations and whether the absolute ban on interrogational torture ought to
be relativized is one of the major legal challenges in the fight against terrorism that is far
from being solved. Part II first gives a brief overview of the historical development of
torture and then points at the characteristics of torture as a supposed tool of combating
terrorism. Part III describes the international and national ban on torture. Part IV discusses
the challenges to these prohibitions in the wake of the fight against terrorism and
concludes that the absoluteness of the ban on torture, cruel, inhuman and degrading
treatment should not be relativized even though in absolute situation a fallible agent
should not be punished for breaking this absolute rule.

History of interrogational torture


Our understanding of torture is substantially influenced by historic experiences. This
chapter should give a short overview of the historic development of torture. The use of
torture can serve many purposes such as punishment of an individual or even terrorisation
and subjugation of a whole population. This chapter focuses on the European history of
torture as an interrogational tool.
Torture as a constant companion of human history
Torture is as old as human history. The ancient Greeks used torture in the questionings of
slaves. The testimony of a slave was of no probative value. Thus, for a statement of a slave
to be used as evidence it had to be corroborated by the infliction of pain [11, p. 7; 16, pp.
34 et seqq.].
In the Roman Republic torture waslike in Greecelimited to slaves. Torture of free
citizens was strictly prohibited [11, p. 8]. However, in the Imperial period the distinction
between slaves and citizens became blurred and the infliction of torture was more and
more extended to the latter group. In addition, the power of the Emperor increased and
he did not refrain from administering torture against his internal enemies in cases of
high treason [11, pp. 9 et seq.; 17, pp. 107 et seq.].
After the fall of the Western Roman Empire the Barbarians continued to use torture on
slaves [16, p. 64]. As to freemen a new system of proof was central; the ordeal, e.g. the judicial
duel or the test of fire. In the latter ordeal the accused was considered innocent when the
injuries sustained by the application of fire were healed in a certain time. The ordeal purported
to establish certainty by a judgement rendered by god [10, p. 94; 19, N 23 et seqq.].
The Ordeal was undermined by the decision of the Forth Lateran Council in 1215 to
proscribe the participation of clerics in ordeals. Finally, in 1243 Pope Gregory IX
prohibited ordeals as such and a new law of evidence had to be developed. Due to the
emergence of rationalism, the law of proof shifted to an investigation of the truth [11, p.
53; 25, p. 34]. A conviction required two eyewitnesses. Without these two testimonies, a
court could not convict an accused, who denied his participation in the crime. Only if the
suspect confessed the offence could a court convict him without two witnesses. In any case,

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a conviction could not be based on circumstantial evidence. Thus, to obtain a confession, the
accused was subjected to torture [10, p. 94].
The abolition of torture
The European States abolished torture in the 18th century. This abolition was fostered
by the influence of the publicists of the Enlightenment as well as by the establishment
of a new law of proof, known as free judicial evaluation of the evidence [10, pp. 97 et seqq.;
19, N 172 et seqq.].
Torture could, however, never be totally erased. On a broad scale, it recurred under the
Nazi regime in the 3rd Reich [16, pp. 178 et seqq.]. After the Second World War the fight
against torture became a key concern of the international community. An absolute ban on
torture made its way into humanitarian law and major human rights treaties. Despite this
effort, the existence of torture continued, e.g. in the Algerian War in the 1950s, the
dictatorship in Greece (1960s) or the Vietnam War (19641975). In its annual report
2010 Amnesty International lists at least 111 countries administering torture, cruel, inhuman
or degrading treatment [36]. Finally, since the tragic attacks on the Twin Towers the
administration of torture is openly taken into consideration even in democratic states
devoted to the rule of law.
Torture and the fight against terrorism
As seen in the brief historical overview, judicial torture was mainly a tool in criminal
proceedings. It aimed at eliciting a confession as a basis for a conviction. It contrast, torture
in the fight against terrorism has another goal. The purpose of torture is not a confession but
the gathering of information necessary for the prevention of an imminent terrorist threat. The
core element in this new concept of torture is the ticking time bomb paradigm: A bomb is
planted in the crowded heart of a major city. The bomb is ticking and the terrorist who
planted the bomb is captured. He is the only person in possession of the information
necessary for defusing the bomb and averting the death of hundreds of human lives [2, p.
662; 4, pp. 143 et seq.; 15, pp. 760 et seq.; 20, p. 57]. Thus, this type of torture aims at saving
human lives. In the fight against terrorism the purpose of torture shifted from securing a
confession to the gathering of life saving information.

The absolute prohibition of torture


After the Second World War the fight against torture became a key concern of the
international community. As a result, an absolute ban on torture was introduced on an
international as well as a domestic level.
International law
The prohibition of torture in international law
The absolute prohibition of torture is a core element of all the major human rights
treaties and humanitarian law. This prohibition forms a part of customary

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international law [28, p. vi; ICTY, Prosecutor v. Furundija, IT-95-17/1-T, 147; Filartiga
v. Pena-Irala, 630 F.2d 876 (1980), 882] and is widely considered a peremptory norm of
international law (ius cogens) [13, p. 111; 29, Art. 7, N 1; 30, 16, N 14; ICTY, Prosecutor
v. Furundija, IT-95-17/1-T, 153; ECHR, Judgment of 21 November 2001, Al-Adsani v.
United Kingdom, 61; House of Lords, Regina v. Bartle and the Commissioner of Police
for the Metropolis and Others Ex Parte Pinochet].
The Universal Declaration of Human Rights adopted by the General Assembly of
the United Nations in 1948 states in Art. 5 that no one shall be subjected to torture or
to cruel, inhuman or degrading treatment or punishment. Identically, Art. 7 of the
International Covenant on Civil and Political Rights (ICCPR) provides:
No one shall be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free consent
to medical or scientific experimentation.
Other prohibitions on torture can be found in the Geneva Conventions, e.g. in Common
Article 3 of all the Geneva Convention or the 3rd Geneva Convention, which prescribes in
its Art. 13 that prisoners of war must at all times be humanely treated. In addition, torture
constitutes both a crime against humanity (compare Art. 5(f) ICTY-Statute, Art. 3(f) ICTRStatute and Art. 7 s. 1(f) ICC-Statute) and a war crime (see Art. 2(b) ICTY-Statute, Art. 4(a)
ICTR-Statute as well as Art. 8 s. 2(a)(ii) and Art. 8 s. 2(c)(i) ICC-Statute).
Prohibitions of torture can also be found on a regional level. Art. 3 of the European
Convention on Human Rights (ECHR) concisely provides that [n]o one shall be
subjected to torture or to inhuman or degrading treatment or punishment. A similar
prohibition can be found in Art. 5 s. 2 of the American Convention on Human Rights
(ACHR) adopted in 1969.
In addition to these treaties, the international community has implemented special
instruments addressing torture. The European Convention for the Prevention of
Torture and Inhuman or Degrading Treatment or Punishment for instance established
a preventive system by visiting examining the treatment of persons deprived of their
liberty. The main treaty is the UN-CAT, which will be discussed below.
Most of the International Convention, e.g. the ICCPR or the ECHR prohibit torture
without defining its exact term. A definition of torture was adopted in the United Nation
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment (UN-CAT). The United States ratified the UN-CAT on 21 October 1994,
Germany on 1 October 1990. In its Article 1 the UN-CAT defines torture as:
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.
Thus, the characteristic elements of torture are (1) an intentional infliction of (2) severe
pain or suffering either physical or mental, (3) for a certain purpose such as obtaining a
statement, (4) involving a public official.

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However, the various international prohibitions cover not only acts of torture but also
cruel, inhuman and degrading treatment. This begs the question how these lesser forms
of ill-treatment are to be defined and distinguished from torture. Human rights instruments are silent on this question. Nevertheless, the jurisprudence of international
tribunals and commissions shed some light on these issues. According to the European
Court of Human Rights mistreatment requires a minimum level of severity to fall within
the scope of Art. 3 ECHR. The assessment of this severity depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects
and, in some cases, the sex, age and state of health of the victim [ECHR, Judgment of 1
June 2010, Gfgen v. Germany, 88]. Torture is defined as deliberate inhuman treatment
causing very serious and cruel suffering [ECHR, Judgment of 18 January 1978, Ireland
v. United Kingdom, 167; ECHR, Judgment of 1 June 2010, Gfgen v. Germany, 90].
Hence, the distinction between torture and other prohibited forms of ill-treatment lies in
the intensity of the suffering. The different forms of ill-treatment are on the same scale
reaching from mere degrading treatment up to torture as the most egregious mistreatment. In a first step, the assessment of the intensity of the suffering is important for the
determination whether a certain treatment reaches the minimum level of intensity
required for a violation Art. 3 ECHR. In a second step, the severity of the suffering is
the determining factor for the distinction between the different forms of ill-treatment
within Art. 3 ECHR. In both cases the severity is assessed by an evaluation of all the
circumstances of the case [7, p. 70]. Other human rights treaty bodies follow a similar
approach (for the ICCPR see General Comment No. 20, 4; for the ACHR see IACHR,
Judgment of 11 March 2005, Caesar v. Trinidad and Tobago, 50; Case 10.832
(Dominican Republic), IACHR Annual Report 1997, 79 et seq.).
Absolute nature of the prohibition of torture
The prohibition of torture, cruel, inhuman or degrading treatment is one of the few
absolute and non-derogable human rights [14, p. 74; 18, p. 55; 28, Art. 2, N 59; CCPR
General Comment No. 20, 3; ECHR, Judgment of 18 January 1978, Ireland v. United
Kingdom, 163]. These two concepts may not be confused. Not all absolute rights are
non-derogable and vice versa. A right is considered absolute if, under normal circumstances, no limitation is permitted, e.g. by balancing the individual claim against State
interests. On the other side, a human right is considered non-derogable if states, under
exceptional circumstances like war or other public emergencies, are not permitted to
derogate from their treaty obligations in relation to this right [28, Art. 2, N 61]. The
absolute prohibition of torture and cruel, inhuman and degrading treatment thus means
that it must not be balanced against any other interest, including national security or the
protection of human lives [28, Art. 2, N 61]. It is also non-derogable, what means that
States are not permitted even under exceptional circumstances such as war or terrorism
to derogate from their obligation to ensure this absolute prohibition [28, Art. 2, N 62].
Domestic law
The prohibition of torture may also be found on the domestic level. For the discussion of
domestic law, I have chosen Germany and the United States as two liberal democracies and
steadfast rule-of-law states banning torture. In both legal systems, however, preventive

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torture as a tool for saving lives, especially from devastating terroristic acts, has been
intensely discussed in recent years.
German law
The German law, despite the fact that there is no explicit prohibition on torture, has
several norms indirectly banning torture. The Constitution of the Federal Republic of
Germany (GrundgesetzGG) ensures the right to life and the inviolability of the
body (Art. 2 s. 2 GG) and prohibits (physical or mental) maltreatment of individuals
deprived of their liberty (Art. 104 s. 1 GG). In addition, the first article of the
Constitution, considered as comprising the spirit of the whole constitution [9, 12;
German Constitutional Court, BVerfGE 45, 187 (227); 109, 279 (311)] stipulates that:
Human dignity shall be inviolable. To respect and protect it shall be the duty of
all state authority.
According to German scholars and jurisprudence the protection of human dignity
isin contrast to other human rights prescribed by the Constitutionof an absolute
character, leaving no room for limitations based on the balancing of interests, such as the
right to life of a victim of a terrorist attack [8, 10, Rn 34; 12; German Constitutional
Court, BVerfGE 75, 369 (380); 93, 266 (293); 107, 275 (284)]. However, the particular
content of the notion of human dignity is subject to some dispute. The German
Constitutional Court (Bundesverfassungsgericht), influenced by the philosophy Kant,
defines human dignity as the imperative that human beings shall never be used as mere
objects [German Constitutional Court, BVerfGE 27, 1 (6); 109, 279 (312); 115, 118
(153)]. Breaking somebodys even a terrorists will by the use of force is judged to
interfere with human dignity. Since this constitutional right is not subject to any
limitation, this infringement cannot be justified. Thus, there is an absolute ban on the
use of torture [2, p. 665; German Constitutional Court, BVerfGE 30, 1 (39)].
The (constitutional) prohibition on torture is also substantiated on the statutory law
level, both in criminal procedure and police law. Since in ticking bomb cases torture aims
at tackling a threat rather than convicting a criminal, the relevant sources of the prohibition
on preventive torture lie in the police codes of the states (Polizeigesetze). Police codes
vary from state (Bundesland) to state but not in the aspect which is pertinent here. Police
codes typically provide for a legal duty to divulge information if it is necessary for the
protection of life, health or a persons freedom ( 20(1) Police Code of BadenWuerttemberg). Thus, a terrorist setting a bomb is obliged to divulge the information
necessary for the deactivation of the bomb [2, p. 663]. The obligation to disclose the
whereabouts of the bomb can be in conflict with the suspects right against selfincrimination. However, in this situation the infringement of this right is justified by the
compelling interests of the potential victims [27, p. 616]. Nevertheless, the right against
self-incrimination demands the exclusion of criminal prosecution based on the revealed
information [31, p. 495]. If the interrogee is not willing to honor his legal obligation to
disclose the information the means for enforcing this obligation are limited. Police codes
either explicitly do not allow coercion in interrogations (e.g. 55(2) Police Code of
Nordrhein-Westfalen) or refer to the legal provision governing interrogations in criminal
procedures (e.g. 35(2) Police Code of Baden-Wuerttemberg referring to 136a Federal
Code of Criminal Procedure). Both types of police codes categorically forbid torture and

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there are no provisions, in any of the police codes, allowing for an exception. Thus, there
is an absolute ban on torture, even in cases where the life and bodily integrity of innocent
people is endangered.
United states law
Constitutional constraints Several provisions of the US-Constitution prohibit torture.
The most important are the Self-Incrimination Clause (5th Amendment), the 8th
Amendments ban on cruel and unusual punishment and the due process clause of
the 14th Amendment. In Chavez v. Martinez the Supreme Court of the United States
ruled that the self-incrimination clause is not applicable as long as the coerced
statement is not admitted as evidence against the interrogee in a criminal trial [US
Supreme Court, Chavez v. Martinez, 538 U.S. 760 (2003), 766 et seqq.]. The 8th
Amendments prohibition on cruel and unusual punishment bans torture as a form of
punishment as a result of a criminal conviction [13, p. 127]. As preventive torture is
not the result of a conviction this Amendment is not applicable in such cases. In
Chavez v. Martinez the Supreme Court held that preventive torture has to be
scrutinized under the Due Process Clause of the 14th Amendment:
The Fourteenth Amendment provides that no person shall be deprived of life,
liberty, or property, without due process of law. Convictions based on evidence
obtained by methods that are so brutal and so offensive to human dignity that
they shoc[k] the conscience violate the Due Process Clause. (...) As we noted
in Lewis, the official conduct most likely to rise to the conscience-shocking
level is the conduct intended to injure in some way unjustifiable by any
government interest [US Supreme Court, Chavez v. Martinez, 538 U.S. 760
(2003), 774 et seqq., citations omitted]
To what exact extent the shock the conscience standard prohibits the use of force in
preventive interrogations is not yet clear. The standard is vague. In addition it leaves
some room for justificationsin contrast to German and international lawbased on
government interest. Thus, the use of some force in a interrogation might not be
considered to be shocking as long as the interrogation aims at the prevention of an
imminent danger for many innocent lives [1, p. 241; 21, p. 208 et seq.; see also Leon
v. Wainwright, 734 F.2d 770 (1984), 773].
Statutory law and terrorism legislation A statutory ban on torture was introduced to
American law by the ratification of the UN-CAT. The United States ratified the UN-CAT
in 1994. The convention was implemented in the US legal system by the enactment of the
federal torture statute (18 U.S.C. 23402340B). In this statute torture is defined in
2340(1) as:
[an] act committed by a person acting under the color of law specifically intended to
inflict severe physical or mental pain or suffering (other than pain or suffering
incidental to lawful sanctions) upon another person within his custody or physical
control.
The statute continues by defining severe mental pain or suffering in 2340(2) as:

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prolonged mental harm caused by or resulting from


(A) the intentional infliction or threatened infliction of severe physical pain or
suffering;
(B) the administration or application, or threatened administration or application,
of mind-altering substances or other procedures calculated to disrupt profoundly
the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe
physical pain or suffering, or the administration or application of mind-altering
substances or other procedures calculated to disrupt profoundly the senses or
personality.
In the wake of the 9/11-attacks the United States established a new body of law
governing the treatment of detainees, in particular the treatment of terrorists (so called
unlawful combatants). The Detainee Treatment Act (DTA) [26] prohibits in absolute
terms cruel, inhuman, or degrading treatment [26, sec. 1003(a)]. This provision
covers not only Department of Defense activities, but also intelligence and law
enforcement activities (e.g. CIA) occurring both inside and outside the United States
[3, p. 2]. The DTA defines cruel, inhuman, or degrading treatment as acts prohibited
under the 5th, 8th, and 14th Amendment to the US-Constitution [26, sec. 1003(d)]. The
relevant provision in preventive interrogations is the Due Process Clause in both the
5th and 14th Amendment, and the test devised by the Supreme Court for determining
when rough treatment violates the Due Process Clause is whether such treatment
shocks the conscience [3, pp. 3 et seq.; 13, p. 127].
In addition the DTA limits the methods admissible in interrogations of persons in
custody or under the effective control of the Department of Defense or under
detention in a Department of Defense facility to the approaches listed in the United
States Army Field Manual on Intelligence Interrogation (FM 222.3) [26, sec.
1002]. The Field Manual (FM) prohibits techniques like Waterboarding or the use
of military dogs explicitly. The approved techniques include soft techniques like
direct questioning or trickery and incentives but also harsher techniques like
Separation, whichto a certain extentallows for solitary confinement, sensory
deprivation and sleep deprivation [37, M-26 et seqq.]. However, this additional
limitation on the methods authorised by the Field Manual did not apply to the agents
of the CIA interrogating High Value Detainees in secret detention facilities (Black
Sites). Legislation requiring the CIA to use only those interrogation techniques
authorized under the Army Field Manual was vetoed by President Bush [3, p. 12].
Nevertheless, soon after taking office, President Obama, issued an executive order,
limiting the interrogation-techniques of all agencies of the United States Government,
including the CIA, to the methods authorised in the Field Manual [Executive Order
(22. January 2009), Ensuring Lawful Interrogations, 74 Fed. Reg. 4893, Sec. 3(b)].
To sum up, since the enactment of this executive order all enemy combatants
detained in the war on terror must not be subject to torture, cruel, inhuman or
degrading treatment and the permissible interrogation-techniques are strictly limited
to the methods authorised by the Field Manual.

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Challenges to the absolute prohibition on torture


The brief review of the (absolute) prohibition of torture, cruel, inhuman and degrading
treatment in both international and domestic law made clear that this prohibition is
considered an epitome of liberal rule-of-law states. However, in the wake of the 9/11attacks and the (perceived) continuing threat of more devastating terrorist attacks, the
prohibition on torture becomes more and more challenged. In relativizing the absolute ban
on torture two approaches can be differentiated: an ex post justification (1) and an ex ante
authorisation (2).
Ex post justification
The approach of an ex post justification does not establish an administrative power to use
torture in interrogations. There is no authorisation to use harsh methods and the use of
torture entails criminal responsibility. However, the criminal responsibility of the fallible
agent might be excluded based on a justification or an excuse of his conduct on grounds of
necessity or self-defense. This relativization of the absolute ban on torture in certain tragic
choice scenarios is favoured by some scholars [15, pp. 763 et seqq.; 20, p. 58 et seq.; 27,
pp. 619 et seq.]. They argue that the absolute ban on torture and other mistreatment does
not rule out the invocation of defenses. The absolute ban mainly addresses states and state
actions. Criminal liability, on the other hand, is not dealing with the legality of a state
action but with the individual blameworthiness of a certain conduct [5, p. 27; 6, p. 789
et seq.; 32, pp. 269 et seqq.]. An agent engaging in torture to save his life or the life of
another human being cannot be held criminal responsible [27, p. 620; 32, pp. 285 et seq.].
An ex post justification model is currently the legal standard in Israel. In 1999 the
Supreme Court of Israel, sitting as the High Court of Justice, ruled that the there is no
administrative power sanctioning torture [Israel Supreme Court, The Public Committee
against Torture in Israel v. the Government of Israel et al., H.C.J. 5100/94 (1999), 23]. In
particular, the necessity defense does not constitute a source of authority [Ibid. 36
et seq.]. Nevertheless, an agent using torture is not barred from invoking the legal defense
of necessity [Ibid. 34].
Ex ante authorisation
The ex ante authorisation moves beyond a mere exclusion of a criminal sanction. It
establishes an ex ante administrative power to use harsh methods of interrogation in
ticking time bomb situations. There are some scholars arguing for different types of ex
ante authorisations.
From a German perspective a minority opinion argued that, while German police
law prohibits coercion to obtain information, the same body of law allows the use of
force, even deadly force, if there is an imminent threat to the life and physical wellbeing of an innocent, provided that there is no less intrusive means to avert the danger
(e.g. 54(2) Police Code of Baden-Wuerttemberg). The guiding principle behind this
intrusion is the judgement that in cases where there is an unpreventable clash of life
versus life, the interest of the innocent should prevail [2, p. 669]. The provision
allowing the use of (deadly) force to save the life of an innocent should be analogically applied in cases of life saving torture [2, p. 663]. On a constitutional level the

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guarantee of human dignity in Art. 1 GG both protects the terrorists and the
victims dignity in absolute terms. In this conflict of interests the state is justified
in siding with the victim, not the lawbreaker [2, pp. 671 et seq.]. Under international law (e.g. the ECHR) there are the same opposing signals as in the German
Police Codes. Art. 3 ECHR states that the use of torture is unconditionally
forbidden. On the other hand, Art. 2 s. 2 (a) ECHR states that the life of a
lawbreaker may be taken, if this is the only means to protect the innocent victim.
As was argued on the police law level, the countervailing provision, Art. 2 s. 2 (a)
ECHR, should be applied as a limitation on the absolute character of the prohibition of torture [2, pp. 672 et seq.].
The main concern common to all of these approaches is the establishment of a legal
framework preventing the abuse of the administrative power and the torture of innocents.
Thus, Brugger proposes eight characteristics as prerequisites for state sanctioned torture.
These preconditions (should) delineate and limit the exceptions to the absolute prohibition
on torture: There is (1) a clear, (2) imminent and (3) severe danger to (4) the bodily
integrity or life of an innocent person. (5) The danger has been caused by an identified
individual and (6) this individual is the only person able to eliminate the danger. (7) Under
the relevant law, this individual has the duty to avert the danger and (8) torture is the only
promising means of eliminating the danger [2, p. 673 et seq.].
Dershowitz, from an American point of view, proposes the introduction of torture
warrants along the lines of arrest warrants for the effective limitation of actual
torture [4, p. 141, 158; 22, p. 207].
The most recent example of an ex ante authorisation is the High Value Detainee
Program (HVD-Program) ran by the CIA and established by the United States as an
anti-terrorism measure after the 9/11-attacks. The following description is based on
official documents issued by the US Department of Justice and the CIA. The HVDProgram comprised of four characteristic elements: (1) the restriction of harsh interrogation methods to a certain group of individuals, (2) a restrictive interpretation of the
term torture, (3) a relativization of the prohibition of cruel, inhuman, and degrading
treatment and (4) an institutionalised interrogation process with an exclusive list of
certain interrogation techniques. In sum, the HVD-Program tried to institutionalise and
regulate a regime of harsh interrogations of certain detainees. As stated above, the
HVD-Program was stopped by the Obama administration. It remains, however, a
remarkable example of an ex ante authorisation of torture.
Individuals subject to harsh interrogations
The CIA defined the individuals subject to the HVD-Program as:
a detainee who, until time of capture, we have reason to believe: (1) is a senior
member of al-Qaida or an al-Qaida associated terrorist group []; (2) has
knowledge of imminent terrorist threats against the USA, its military forces, its
citizens and organizations, or its allies; or that has/had direct involvement in
planning and preparing terrorist actions against the USA or its allies, or
assisting the al-Qaida leadership in planning and preparing such terrorist
actions; and (3) if released, constitutes a clear and continuing threat to the
USA or its allies [23, p. 4].

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Thus, the use of harsh interrogation techniques is restricted to individuals who


are believed to possess crucial information on ongoing terrorist activities.
Restrictive interpretation of torture
The US-Department of Justice interpreted torture:
as defined in and proscribed by Sections [18 U.S.C.] 2340-2340A, covers only
extreme acts. Severe pain is generally of the kind difficult for the victim to endure.
Where the pain is physical, it must be of an intensity akin to that which accompanies
serious physical injury such as death or organ failure. Severe mental pain requires
suffering not just at the moment of infliction but it also requires lasting psychological harm, such as seen in mental disorders like posttraumatic stress disorder.
Additionally, such severe mental pain can arise only from the predicate acts listed
in Section 2340. Because the acts inflicting torture are extreme, there is a significant
range of acts that though they might constitute cruel, inhuman, or degrading
treatment or punishment fail to rise to the level of torture [35, pp. 213 et seq.].
This memorandum was withdrawn and replaced by a new memorandum in 2004
providing a new interpretation of the term torture. Although the new interpretation
abandoned the view that severe pain must be of an intensity akin to that which accompanies
serious physical injury such as death or organ failure [24, p. 362], it still held that the term
torture covers only extreme acts of brutality [23, pp. 19 et seqq.; 24, pp. 365 et seqq.].
Based on this restrictive interpretation the Department of Justice took the view that
even Waterboarding does not constitute torture, because the panic brought on by the
Waterboard during the very limited time it is actually administered, combined with
any residual fear that may be experienced over a somewhat longer period, could not
be said to amount to theprolonged mental harmthat the statute covers [23, p. 44].
Relativization of the prohibition of cruel, inhuman, and degrading treatment
In addition to the restrictive interpretation of torture, the HVD-Program introduced
a relativization to the prohibition of cruel, inhuman, and degrading treatment. By
reference to the shock the conscience test, it was argued that the governments interest
is an important part of the context that must be carefully considered in evaluating an
asserted violation of due process shock the conscience test. National security is the
paramount interest the government seeks to vindicate by the HVD-Program. In
addition, the interrogation techniques are used only as reasonably deemed necessary
to further this government interest of the highest order. The interrogation techniques
have been carefully designed to avoid inflicting severe pain or suffering or any other
lasting or significant harm and to minimize the risk of any harm that does not further
this paramount government interest [33, pp. 28 et seq.].
Combining the concepts of torture on the one hand and cruel, inhuman, and degrading
treatment on the other hand, the HVD-Program assumes that not any conduct of torture,
no matter how extreme, could be justified by a sufficiently weighty government interest
coupled with appropriate tailoring. Torture is categorically prohibited. Enhanced interrogation techniques that fall short of torture are permissible if the proportionate application is
justified by the interest of national security [33, p. 30].

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Interrogation process
The interrogation process of the HVD-Program can be broken into three phases: (a)
initial conditions, (b) transition to interrogation and (c) interrogation.
Initial conditions After a HVD was turned over to the CIA, the detainee was flown to
a Black Site (secret prison). During the flight, he was shackled and deprived of light
and sound through the use of blindfolds, earmuffs and hoods. After arrival at the
Black Site, the detainee was in complete control of the CIA. He was subject to an
administrative procedure and a medical assessment, held in a precise, quiet and
almost clinical manner. During this process the face and head of the HVD were
shaved [34, pp. 1 et seqq.].
Transition to interrogation In the initial interview the interrogators determined in a
relatively friendly environment whether the HVD was willing to participate with the
CIA interrogators [34, p. 3]. If the detainee failed to provide information on actionable threats, the interrogation team developed an interrogation plan, which generally
called for the use of harsh techniques in an escalating fashion [33, p. 7].
Interrogation In elaborating the interrogation plan, medical and psychological professionals carefully evaluate detainees before any enhanced technique was authorized in order
to ensure that the detainee was not likely to suffer any severe physical or mental pain or
suffering as a result of interrogation. In addition, the medical and psychological professionals
continuously monitored the detainees condition throughout any interrogation using enhanced techniques, in order to stop the use of particular techniques or the interrogation
altogether if the detainees medical or psychological condition indicated that the detainee
might suffer significant physical or mental harm as determined in the HVD-program [33,
p. 8].
The enhanced interrogation techniques can be separated into three categories: Conditioning techniques, corrective techniques and coercive techniques. The conditioning techniques
were used to reduce the detainee to a baseline, dependant state, which demonstrated to the
HVD that he had no control over his basic needs. The techniques comprised of Nudity, Sleep
Deprivation from 48 h up to 180 h [23, p. 11 et seq.] and Dietary Manipulation [34, pp. 4
et seq.].
The corrective techniques were mainly used to correct or startle the detainee. The
techniques were commonly used while the HVD was subject to the conditioning techniques [34, p. 5]. The interrogation methods included: the Abdominal or Facial Slap, the
Facial Hold and the Attention Grasp. In the first technique, the interrogator struck the face
or the abdomen of the detainee with the back of his open hand. The goal was not to inflict
physical pain but to induce shock, surprise, or humiliation. The Facial Hold was used to
hold immobile the head of the interrogee. The Attention Grasp consisted of grasping the
individual with both hands, one hand on each side of the collar opening, in a controlled and
quick motion [23, p. 8 et seq.].
The coercive techniques placed the detainee in more physical and psychological stress
and were considered the most effective tools of interrogation. The techniques comprised
of Walling, Water Dousing, Stress Positions, Cramped Confinement and Waterboarding
[34, p. 7]. Walling involved the use of a flexible, false wall. The HVD was placed with his

Torture and the fight against terrorism

349

heels touching the wall. After pulling the interrogee forward the interrogator quickly and
firmly pushed the HVD into the wall. According to the Department of Justice, this
technique was not designed to cause severe pain but to wear down the detainee and to
shock or surprise the detainee and alter his expectations about the treatment he believed
he would receive [23, p. 8]. Water Dousing consisted of pouring cold water on the
detainee either from a container or from a hose without a nozzle. The duration of Water
Dousing varied based on the water temperature: For a water temperature of 41 F, the
total duration of exposure was limited to a maximum of 20 min without drying and
rewarming [23, pp. 9 et seq.]. Using the Stress Position technique the HVD had to
maintain a certain position like standing over a longer period of time. Cramped Confinement involved placing the HVD in a dark confined space, whose dimensions were
designed to restrict the individuals movement. The duration of confinement varied based
upon the size of the container [23, p. 9]. The Waterboard was the most intense technique.
In this technique the detainee was placed on a barrow inclined downwards. The detainee
lay on his back, his head toward the lower end of the barrow: A cloth was placed over
the detainees face, and cold water was poured on the cloth. The wet cloth created a
barrier through which it was difficult or sometimes impossible to breathe. As a result, this
procedure induced a sensation of drowning [23, p. 13].
Critical assessment of the relativization of the absolute ban on torture
Ex ante authorisation
The core of the ex ante authorisation lies in the opening of the absolute ban on torture
to a balance of interests allowing for the use of torture on utilitarian grounds. The evil
of torture has to be balanced with the life of the (possible) victims. This approach
tends to reduce torture to a mere infringement of bodily integrity. However, torture
goes far beyond this infringement. It not just fundamentally impairs the psyche of the
tortured but also brutalizes the torturer himself [38, p. 124; 39, p. 289]. The systematic use of torture calls for an institutionalisation whose dynamics are difficult to
control [37, p. 56], Thus, an ex ante authorisation of torture carries a heavy risk of a
slippery slope [15, p. 763; 40, p. 552]. But not only these side-effects call upon an
absolute prohibition on torture. The prohibition of torture enshrines one of the most
fundamental values of democratic societies [ECHR, Judgement of 1 June 2010,
Gfgen v. Germany, 87]. The prohibition of torture is inextricably linked to the
notion of human dignity and therefore inextricably linked to the notion of human
rights itself (see Preamble of the ICCPR and Preamble of the UN-CAT). Torture aims
to break someones will. By breaking somebodys will the state infringes upon the
forum internum of the interrogee and completely negates his autonomy. By negating
this autonomy the states destroys its very fundament: A rule of law state or liberal
state is based on the notion of the individuals self-determination and autonomy,
which are the fundament of all human rights and the source of the states legitimacy
[41, Rn 53 ff.].
Thus, in its fight against terrorism the absolute ban on torture must not be relativized.
This means that all interrogation techniques crossing the line to torture, cruel, inhuman, or
degrading treatment are forbidden. When this threshold is reached is a difficult question.
This assessment should be based on an evaluation of all circumstances and especially the

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combination of certain techniques and the impact on the interrogee resulting thereof.
Another important point to which one should draw attention is the disconnect of torture
from an infliction of direct physical pain. Modern forms of ill-treatment do not focus on
the infliction of physical pain as it was typical for inquisitorial torture in the middle ages
and the early modern period. Modern and more subtle forms of ill-treatment shift to the
infliction of mental pain. This is especially true for the Waterboard technique. As a
guideline for the evaluation whether a certain technique or the combination of techniques
constitute prohibited mistreatment, the psychological mechanism of all torture techniques should be taken into consideration: The creation of anxiety or fear in the interrogee
while, at the same time, removing any form of control from the person to create a state of
total helplessness [42, p. 283]. Focussing on this psychological mechanism, the combination of the various techniques and the particular setting in which the techniques where
employed, the HVD-program clearly crossed the line to the absolute prohibited acts of
torture, inhuman, or degrading treatment.
Ex post justification
In contrast to the ex ante authorisation and the approach of an ex post justification does
not establish an administrative power to use torture in interrogations. There is no
authorisation and the use of torture entails criminal responsibility. However, the criminal
responsibility of the fallible agent might be excluded. Without discussing the issue on a
broad manner, in my view this is a conceivable solution to the tragic choice an
interrogator is facing in a ticking bomb scenario. However, as the prohibition of torture,
cruel, inhuman and degrading treatment enshrines a fundamental principle of liberal
democratic societies governed by the rule of law, the legal order must not declare an act of
torture as justified, because this would make the act of torture lawful. The justification of
torture would turn it into something legally and socially acceptable. As a result, the
absolute prohibition would be undermined [32, p. 278]. Even though an act of torture can
never be justified, it cannot be deduced that the torturer ought to be criminally sanctioned.
Thus, the exclusion of criminal liability should not be based on a justification but on an
excuse. In an extreme case when investigators find themselves in a situation where torture
is the only available means to avert serious danger for human lives, it cannot be expected
that the agent will overcome this moral dilemma and refrain from using torture. The
extreme pressure resting on the investigator, concerning the categories of personal
blameworthiness and culpability can be accounted for by granting these officials an
excuse instead of a justification [Ibid., p. 285]. The distinction between this two concepts
excluding criminal responsibility runs along the lines of not wrongful (justified) and
wrongful but not blameworthy (excused) conduct [Ibid., p. 272]. This approach is less
invasive to the absolute ban on torture as torture remains wrongful as it is not justified but
the interrogators culpability is excluded on grounds of understandable conduct in an
extreme moral dilemma [43, pp. 300 et seq.]. In contrast to the ex ante model, torture
would not be institutionalised. The possibility of disciplinary sanctions would also have a
deterrent and thus preventive effect [44, p. 302]. The same effect can be attributed to the
impartial criminal investigation, which has to be mandatory, in which it has to be
determined whether the agents conduct can be excused [15, p. 764]. Admittedly, the
exact characteristics, which have to be met for an excuse to kick in, goes beyond this
article and still has to be precisely defined [45, 22].

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351

Conclusion
The 9/11-Attacks dramatically highlighted the major threat international terrorism
poses to democratic societies. The destructiveness of this threat ought not to be taken
lightly and liberal states governed by the rule of law have to assess the possibilities
and tools for tackling this danger. However, the fundamental norms constituting the
society seeking to defend itself should not be forgotten. The ban on torture is one of
the major achievements of this society. Torture accompanies mankind throughout
history resurfacing when a democratic state turns into a totalitarian state. The absolute
prohibition of torture is predicated on this awareness particularly after the horrible
experiences of the Second World War.
Torture is more than a mere infringement of the bodily integrity. As the European Court
of Human Rights recently held, the prohibition on torture and inhuman or degrading
treatment enshrines one of the most fundamental values of democratic societies [ECHR,
Judgement of 1 June 2010, Gfgen v. Germany, 87]. The prohibition of torture is
inextricably linked to the notion of human dignity and therefore inextricably linked to the
notion of human rights itself (see Preamble of the ICCPR and Preamble of the UN-CAT).
A relativization of this principle erodes the fundament on which the society we defend is
based. As the Supreme Court of Israel facing daily terrorist threats put it:
We are aware that this decision does not ease dealing with that reality. This is
the destiny of democracy, as not all means are acceptable to it, and not all
practices employed by its enemies are open before it. Although a democracy
must often fight with one hand tied behind its back, it nonetheless has the upper
hand [Israel Supreme Court, The Public Committee against Torture in Israel v.
the Government of Israel et al., H.C.J. 5100/94 (1999), 23, 39].
Or, to put it in the words of the United States District Court for the Southern
District of New York that decided to bar the introduction of evidence which was a
product of a statement made under enhanced interrogation techniques:
The Court has not reached this conclusion lightly. It is acutely aware of the
perilous nature of the world in which we live. But the Constitution is the rock
upon which our nation rests. We must follow it not only when it is convenient,
but when fear and danger beckon in a different direction. To do less would
diminish us and undermine the foundation upon which we stand [US v. Ahmed
Khalfan Ghailani, S10 98 Crim. 1023, NYLJ 1202472980095, at *2].

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