Bad Torture ö Good Torture?

Bad Torture ö Good Torture? What International Criminal Lawyers May Learn from the Recent Trial of Police Officers in Germany Florian Jessberger* Abstract The author discusses whether a state agent who applies torture against a suspect in order to prevent the death of one or more innocent persons can successfully plead a ground for excluding his or her criminal responsibility under national (in particular, German) law as well as international law. The author examines the judgment of a German court, which recently found two police officers guilty of threatening to use violence against a suspected kidnapper, but refrained from punishing them on account of their motivation to save the life of the hostage. The author maintains that the court s guilty, but not to be punished verdict could provide guidance for the resolution of comparable cases under international criminal law. He submits that the tension between the absolute ban on torture under international human rights law and the availability of defences even to crimes of torture under international criminal law should be resolved through a human rights-oriented interpretation of the latter. The author concludes that criminal responsibility for torture under international criminal law cannot be excluded by the fact that the torturer acts to save innocent life; however, his or her altruistic motivation may be taken into account in determining the sentence. 1. Introduction Since 11 September 2001, human rights have come under considerable pressure. In order to meet the overall goal of effectively fighting international terrorism, the applicability of fundamental rights has been called into question worldwide. New and unconventional methods allegedly required to cope with the new threat of global terrorism are being discussed and ö in many * Senior Research Fellow in Criminal Law, Humboldt University, Berlin. [florian.jessberger@rewi.hu-berlin.de]... Journal of International CriminalJustice 3 (2005), 1059^1073 doi:10.1093/jicj/mqi076 ß Oxford University Press, 2005, All rights reserved. For permissions please email journals.permissions@oxfordjournals.org

1060 JICJ 3 (2005), 1059^1073 cases ö employed. In the course of this worrying development, a relatively old debate 1 has gained renewed currency: whether, and under what conditions, the use of force amounting to torture in the interrogation of suspected terrorists is compatible with the rule of law. 2 There is growing evidence that torture of suspected terrorists is already an element of the global war on terrorism. 3 Perhaps more alarming than the reports on factual recourse to torture itself are the attempts to justify torture legally. The categorical ban on torture appears to have lost its status as an indefeasible baseline of liberal democracy. The unthinkable is not only being thought, but openly discussed. This is plainest in the United States (US), where several official government reports recently took the view that physical and psychological violence may legally be used in the interrogation of terrorists. 4 Even liberal scholars have raised their voice in favour of torture being an option in the war on terrorism. 5 This brief note discusses whether grounds for excluding criminal responsibility for acts of torture are available under national, especially German, and international law, and what these grounds are. The occasion is a recent incident involving Frankfurt Police Vice-President, Wolfgang Daschner, which received considerable public and scholarly attention in Germany. In the first part of the paper, I will present the facts of the case, including the judgment of the Frankfurt Regional Court, and outline some of the main arguments put forward in the controversial academic debate on the matter. Against this backdrop, in the second part of the article, I will briefly explore whether grounds for excluding criminal responsibility for torture are available under international criminal law. In doing so, the scope of my examination of domestic, particularly German, and international law will be narrowed in two ways. First, I will only cover situations in which the use of force is applied by a state agent or another person acting in an official capacity, such as a police officer or a soldier. And, secondly, I will only deal with a specific form of torture, which can be defined as infliction of severe pain or suffering for the purpose of 1 To date, the debate has focused on Israeli and British attempts to allow for the use of violence in the interrogation of suspected terrorists. See, e.g. European Court of Human Rights, Judgment of 18 January 1978, Ireland v. United Kingdom, ECHR (1978) Series A No. 25; Report of the Commission of Inquiry in the Matters of Investigation Methods of the General Security Service Regarding Hostile Terrorist Activity (the so-called Landau Commission), 23 Israel Law Review (1989) 146^188; Supreme Court of Israel, Judgment of 6 September 1999, Public Committee against Torture in Israel v. The State of Israel,1999HC5100/94. 2 See, e.g. P. Gaeta, May Necessity Be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?, 2 Journal of International Criminal Justice (2004) 785^794; O. Gross Are Torture Warrants Warranted?, 88 Minnesota Law Review (2004) 1481^1555; J.T. Parry and W.S. White, Interrogating Suspected Terrorists: Should Torture be an Option?, 63 University of Pittsburgh Law Review (2002) 743^766. 3 See, e.g. Human Rights Watch, The Road to Abu Ghraib (New York, 2004). 4 See the compilation of official documents in K.J. Greenberg and J.L. Dratel (eds), The Torture Papers (Cambridge: Cambridge University Press, 2005). 5 See A.M. Dershowitz, Is There a Torturous Road to Justice?, Los AngelesTimes, 8 November 2001, at B19; idem, Why Terrorism Works ^ Understanding the Threat, Responding to the Challenge (New Haven and London: Yale University Press, 2002).

Bad Torture ö Good Torture? 1061 obtaining information 6 in order to prevent harm, particularly harm to innocent life ( preventive torture 7 ). The key characteristic of this specific form of torture is the altruistic motivation of the torturer. The key question examined by this article is, therefore, whether the fact that a state agent applies torture solely and as a last resort to prevent the death of one or more innocent persons can exclude his or her criminal responsibility. 8 2. Can Preventive Torture in Police Interrogations Be Justi ed or Excused? ö The Daschner Case A. If You Do Not Talk, We Will In ict Pain on You ö The Facts On 27 September 2002, law student Magnus Gaefgen kidnapped 11-year-old Jakob von Metzler, the son of a senior bank executive, killed him in his apartment and hid the dead body close to a lake near Frankfurt. In accordance with his plan, he forwarded a letter to the boy s family in which he demanded one million Euro in return for the release of the child. Three days after the boy s disappearance, Gaefgen was arrested after being observed picking up the ransom. During his interrogation, the suspect gave evasive or misleading answers concerning his involvement in the abduction and provided no information about the whereabouts or health status of the boy. Finally, the day after the arrest, Frankfurt Police Vice-President, Wolfgang Daschner, who was responsible for the investigation, ordered that pain be inflicted on the suspect, without causing injuries, under medical supervision and subject to prior warning, in order to save the life of the boy. Accordingly, a subordinate police officer told Gaefgen, who was still in police custody, that the police were prepared to inflict pain on him that he would never forget if he continued to withhold information concerning the whereabouts of the boy. Under the influence of this threat, Gaefgen gave full particulars of the whereabouts of 6 See Art. 1(1) Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment of 10 December 1984, 1465 UNTS (1987), 112. 7 The term preventive torture appears preferable to interrogational torture as it is used, for example, by Gaeta, supra note 2, at 789. The key element of the situations discussed here is not that pain or suffering are inflicted during an interrogation ö which will nevertheless typically be the case ö but that torture is motivated by preventive ends, in particular to prevent a crime from being committed or completed. In the literature, extreme cases of preventive torture are sometimes discussed under the heading of the ticking bomb scenario, which refers to the (mostly theoretical) case in which a deadly terror attack is looming and can only be prevented by obtaining information that a person in custody refuses to divulge. 8 Consequently, the scope of this article excludes situations in which the infliction of mental or physical pain or suffering occurs for non-preventive ends (such as production of confession or as punishment) or is caused by a person acting in private capacity (such as the parents of a hostage). For those cases, the solutions suggested in this paper do not necessarily apply. Also beyond the scope of this paper is the question of whether criminal responsibility for the use of physical or mental violence in the interrogation of detainees can be excluded for reasons other than a perpetrator s life-saving motives, such as diminished capacity.

1062 JICJ 3 (2005), 1059^1073 the boy. The actual infliction of pain, which in fact had been arranged by fetching a specially trained police officer, was not necessary. Shortly thereafter, police officers found the body of the boy. 9 On 28 July 2003, Gaefgen was convicted of extortionate abduction and murder, and sentenced to life imprisonment. 10 B. Is Torture an Option to Switch O a Ticking Bomb? ö The Debate Since Daschner had attached to the official record a report in which he acknowledged his order to use force, the incident rapidly became public and unleashed a stormy debate in Germany about police interrogation techniques. 11 Media commentaries tended to emphasize either the absolute ban on torture, or the power and duty of the police to use all means necessary to save the life of an innocent child. Not surprisingly, public opinion, including several politicians and representatives of the judicial system, sympathized with the methods applied by the police and was opposed to charging and punishing the two police officers. Perhaps more surprisingly, scholars were divided on the question of whether the threat to inflict pain in the Daschner case constituted a criminal act or was instead justified or indeed excusable. Admittedly, two premises were shared by all commentators. First, it was generally accepted that the state has no authority to legalize acts of torture, whatever the circumstances. Secondly, there was consensus that preventive torture infringes the dignity of the human being as laid down in Article 1(1) of the German Constitution (Grundgesetz) and as specified, for example, in Article 104(1) of the Constitution, Article 3 of the European Convention on Human Rights (ECHR), and the Convention against Torture and Other Cruel and Inhuman or Degrading Treatment or Punishment (Torture Convention), 12 because torture 9 The facts of the case presented in this paragraph are taken from the findings of the Court; see Landgericht Frankfurt a.m., Judgment of 20 December 2004, Neue Juristische Wochenschrift 2005, 692^696, available online at: http://www.lg-frankfurt.justiz.hessen.de/internet/ lg-frankfurt.nsf/vwcontentbykey/w269pmlu645juszde (visited 22 May 2005). 10 The Court held that the threat to inflict pain was unlawful and violated Arts 1 and 104(1) of the German Constitution and Art. 3 ECHR. Consequently, the information provided by Gaefgen under the impression of the unlawful threat was not admitted as evidence. However, the Court found that the violation of the Constitution and the European Convention did not constitute a complete bar to criminal proceedings. See Landgericht Frankfurt a.m., decisions of 9 April 2003, Strafverteidiger (2003), 325^328. The decisions of the Regional Court have been upheld on appeal; see Bundesgerichtshof, decision of 21 May 2004 (2 StR 35/04); Bundesverfassungsgericht, decision of 14 December 2004 (2 BvR 1249/04), available online at: http://www.bundesverfassungsgericht.de/entscheidungen/frames/rk20041214_2bvr124904 (visited 22 May 2005). 11 See, e.g. J. Hooper, Germans wrestle with rights and wrongs of torture, The Guardian, 27 February 2003, at 18, and P. Finn, Police Torture Threat Sparks Painful Debate in Germany,TheWashington Post,8March2003,atA19. 12 Article 1(1), sentence 1 of the Constitution provides that the dignity of the human being is inviolable; Art. 104(1) provides that persons in custody may not be subjected to mental or physical mistreatment. The ECHR entered into force for Germany on 3 September 1953, and the Torture Convention on 31 October 1990.

Bad Torture ö Good Torture? 1063 aims to instrumentalize the victim for preventive ends. However, commentators disagreed about how to assess individual criminal responsibility in situations in which torture is applied against a terrorist or ö as in the Daschner case ö a kidnapper to gain information required to determine the whereabouts of a bomb or a hostage in order to prevent the death of one or more innocent persons. A majority of scholars 13 argued that, as a matter of principle, preventive torture could not be justified or excused by the fact that it is applied in order to prevent the death of innocent persons. This view was based on two main arguments. First, the dignity of the human being is inviolable under any circumstances, and torture is the most severe violation of human dignity. Human dignity not only ranks at the top of the basic human rights guaranteed in the German Constitution, including the right to life, but it also may not be subject to any balancing tests. The inviolability of human dignity leaves no room for balancing opposing interests, such as the right to life of a hostage. As a consequence, for no reason is a state permitted to resort, through its agents, to actions infringing human dignity. The absolute prohibition on the infringement of human dignity establishes the foundation for the assessment of these situations under criminal law. Criminal responsibility for acts of torture cannot be excluded by the fact that the use of physical or psychological violence is required to prevent harm to other interests or rights. Secondly, any exception to this position would implicate the risk of abuse and open the door to a dangerously slippery slope. Only a clear position that establishes criminal liability for all acts of torture without exception can guarantee that torture is not routinely applied in difficult cases. According to the opposing view, 14 the application of preventive torture may be justified or excused if it is the last resort to prevent the death of innocents. 13 See, e.g.w. Hecker, Relativierung des Folterverbots in der BRD?, KritischeJustiz (2003) 210^218; E. Hilgendorf, Folter im Rechtsstaat, Juristenzeitung (2004) 331^339; F. Jessberger, Wenn Du nicht redest, fu«ge ich Dir groþe Schmerzen zu, Juristische Ausbildung (2003) 711^715; J. Kinzig, Not kennt kein Gebot? Die strafrechtlichen Konsequenzen von Folterhandlungen an Tatverda«chtigen durch Polizeibeamte mit pra«ventiver Zielsetzung, 115 Zeitschrift fu«r die gesamte Strafrechtswissenschaft (2003) 791^814; B. Kretschmer, Folter in Deutschland: Ru«ckkehr einer Ungeheuerlichkeit?, Recht und Politik (2003) 103^118; R. Neuhaus, Die Aussageerpressung zur Rettung des Entfu«hrten: strafbar!, Goltdammer s Archiv (2004) 521^539; W. Perron, Foltern in Notwehr?, in B. Heinrich et al. (eds), Festschrift fu«r Ulrich Weber (Bielefeld: Gieseking, 2004) 143^154; C. Roxin, Kann staatliche Folter in Ausnahmefa«llen zula«ssig oder wenigstens straflos sein?,inj.arnoldetal.(eds),menschengerechtes Strafrecht, Festschrift fu«r Albin Eser (Mu«nchen: C.H. Beck, 2005) 461^471. 14 See, e.g. V. Erb, Nothilfe durch Folter, Juristische Ausbildung (2005) 24^30; C. Fahl, Angewandte Rechtsphilosophie ö Darf der Staat foltern?, Juristische Rundschau (2004) 182^191; G. Jerouschek and R. Ko«lbel, Folter von Staats wegen?, Juristenzeitung (2003) 613^620. Some of the arguments have been elaborated on earlier by W. Brugger, Vom unbedingten Verbot der Folter zum bedingten Recht auf Folter?, Juristenzeitung (2000) 165^173; see also idem, May Government Ever Use Torture? Two Responses From German Law, 48 American Journal of Comparative Law (2000)661^678,at661etseq.

1064 JICJ 3 (2005), 1059^1073 This opinion was mainly based on the assumption that the omission of torture in situations like the Daschner case infringes the human dignity of the hostage or the victim of the terrorist attack. It was submitted that not only does torture itself violate human dignity of the kidnapper, but the omission of torture also infringes the human dignity of the hostage. According to this view, the conflict between the dignity of the kidnapper and the dignity of the hostage has to be resolved in favour of the latter. C. Guilty, But Not To Be Punished ö The Judgment After Gaefgen was convicted and the conviction was upheld on appeal, Vice-President Daschner and the subordinate who executed the order were indicted. On 20 December 2004, the Regional Court at Frankfurt pronounced the judgment. 15 Both defendants were found guilty: the subordinate police officer of coercion (No«tigung), under Section 240(1) 16 of the German Criminal Code, and Daschner of instructing the subordinate to commit coercion (Verleitung eines Untergebenen zu einer Straftat) under Sections 375(1) and 240(1) of the German Criminal Code. The judgment deals extensively with the question of whether a justification or excuse was available. In this regard, the Court found that the act could not be based on police law, which regulates the rights and duties of public officials in averting dangers to public order and security, because under the applicable police law, threatening to inflict pain in order to elicit information is explicitly prohibited. 17 Nor, in the opinion of the Court, were the specific requirements of defences under criminal law met, in particular those for self-defence, 18 which includes the defence of another (Nothilfe) and justificatory necessity 19 (rechtfertigender Notstand). 15 See Landgericht Frankfurt a.m., supra note 9. 16 Section 343 of the Criminal Code, which makes coercion to give evidence (Aussageerpressung) a crime punishable with imprisonment of one to 10 years, was not to be applied because, in the opinion of the Court, the defendants were acting solely in order to save the life of the child and not to produce evidence against the suspect. 17 See S. 12(4) of the Hessian Security and Order Law in connection with S. 136a of the German Code of Criminal Procedure. 18 Under S. 32 of the Criminal Code, acts required by self-defence are not unlawful but justified; subs. 2 defines self-defence as the defence necessary to avert an imminent and unlawful attack from oneself or another person. Proportionality is, unlike under in many other domestic statutes, not required by the wording of the provision. However, according to case law, extreme cases of disproportionality are not covered by self-defence. 19 Under S. 34 of the German Criminal Code, an act is justified by necessity if the act is committed by a person faced with an imminent danger to a protected legal interest, such as life or limb, which cannot otherwise be averted, in order to avert the danger from himself or another, if, upon weighing the conflicting interests, the protected interest substantially outweighs the one interfered with; this shall apply, however, only to the extent that the act is an appropriate means to avert the danger.

Bad Torture ö Good Torture? 1065 The Court gave two alternative reasons for holding that the requirements of self-defence and justificatory necessity were not met. First, the Court found that the threat to use force was neither the only nor the least severe means at the disposal of the police. The Court determined that other measures were available, such as confronting the suspect with the siblings of the hostage. Therefore, the elements of self-defence (that the act be necessary or erforderlich) and of necessity (that the danger cannot be otherwise averted or nicht anders abwendbar) were not fulfilled. Secondly, the Court asserted that the threat to use force infringed upon the dignity of the human being as laid down in the German Constitution and international law. Apparently, the Court shared the majority opinion in the literature that infringements of human dignity cannot legitimately result from a balancing of interests. In the opinion of the Court, the strict prohibition of threatening to inflict and of inflicting pain against a suspect already results from a balancing of all interests involved. As a consequence, the Court found that the two additional elements of self-defence and necessity were not fulfilled: the act was neither required (geboten 20 )byselfdefence, nor was it an appropriate means of averting the danger (angemessenes Mittel, um die Gefahr abzuwenden) under the provision on necessity. The judgment concluded that the act was neither justified nor excused, 21 and that both defendants were criminally responsible. However, the Court found massive mitigating circumstances in favour of both defendants. The judgment referred in particular to the defendants aim of saving the life of the child, but also mentioned the provocative behaviour of the suspect during the interrogations, a hectic atmosphere, great emotional pressure on the investigating officers, and the consequences of the crimes for the defendants, particularly the public attention the incident received. In the opinion of the Court, these mitigating circumstances had two effects. First, they allowed a departure from the sentencing range ö six months to five years of imprisonment ö for coercion under aggravated circumstances pursuant to Section 240(3) of the Criminal Code. As a rule, from which the Court departed, coercion under aggravated circumstances applies if the coercion is committed by a public official abusing his or her authority and position. Instead, the Court applied the lower sentencing range ö one month to three years of imprisonment or fine ö provided for ordinary coercion under Section 240(1) of the 20 A literal translation would be demanded by self defence. 21 Since Ss 32 and 34 require that all elements of the defence must be present objectively at the time of the commission of the crime, justification by self-defence or necessity was clearly ruled out: at the time of the threat, the hostage was already dead. Yet, the police officers erroneously thought that the boy would still be alive. Therefore, only putative self-defence (or putative necessity ) could have applied anyway, which may ö as a matter of controversy ö exclude the guilt given the act would have been justified if the perceptions of the perpetrator would have been correct. The judgment then briefly discussed further excuses, especially necessity as an excuse under S. 35 of the Criminal Code (entschuldigender Notstand) and mistake of law under S. 17 of the Criminal Code (Verbotsirrtum), but it concluded that neither of these grounds for excluding criminal responsibility was available in the present case.

1066 JICJ 3 (2005), 1059^1073 Criminal Code. On this basis, the Court regarded as adequate fines of 10,800 Euro for Daschner and 3,600 Euro for the subordinate police officer. Secondly, the mitigating circumstances allowed the Court to refrain from convicting and punishing the defendants at all. The Court applied Section 59 22 of the Criminal Code ö a rarely used rule, which, under strict conditions, allows for reprimand while reserving punishment. The guilty, but not to be punished verdict of the Frankfurt Regional Court deserves respect in its effort to balance the strict prohibition of torture under constitutional and international law, on the one hand, against the undeniable conflict with which state officials may be confronted if the use of physical or psychological violence against a suspect is, at least subjectively, the last resort to save innocent life. If one tries to extract a message from the judgment, this message would be: criminal responsibility for preventive torture cannot be avoided because of the fact that it is applied to save innocent life. Notwithstanding his or her altruistic motivation, the torturer is guilty of a criminal offence. There may, however, be situations involving preventive torture where considerable mitigation of the sentence is warranted, or even ö if legally permissible ö where the court refrains from conviction and punishment altogether. Reduced to this core message, the judgment in the Daschner case might offer some guidance on whether the aim of saving innocent life provides a ground for excluding criminal responsibility for preventive torture under international criminal law. Before I proceed to briefly explore this idea, it should be underscored that there are two further aspects of the decision of the German Court that may appear to militate against the transferability of the Court s reasoning to the general debate on torture. First, the Court avoided employing the term torture. However, the judgment mentions Article 3 of the European Convention on Human Rights (ECHR), which may be understood as an implicit reference to torture. Nonetheless, since Article 3 ECHR also encompasses the prohibition of inhuman treatment, it remains open whether, in the opinion of the Court, the acts of Daschner and his subordinate actually constituted torture or merely inhuman treatment. 23 Even if the latter applies, the arguments of the Court would apply afortiorito 22 Section 59(1) of the Criminal Code (Voraussetzungen derverwarnung mit Strafvorbehalt) reads as follows: If someone has incurred a fine of not more than one hundred eighty daily rates, the court may, beside the establishment of guilt, warn him, indicate the punishment and reserve imposition of this punishment, if: 1. it can be expected that the perpetrator will commit no further crimes in the future even without imposition of punishment; 2. a comprehensive evaluation of the act and the personality of the perpetrator reveals special circumstances, which make it advisable to exempt him from the imposition of punishment; and 3. the defence of the legal order does not require the imposition of punishment. 23 The distinction between torture and inhuman treatment derives principally from a difference in the intensity and severity of the suffering inflicted; see Art. 16 of the Torture Convention ( inhuman...treatment which [does] not amount to torture ); European Court of Human Rights, supra note 1, x 167; J. Abr. Frowein and W. Peukert, Europa«ische Menschenrechtskonvention, Kommentar, 2nd edition (Kehl, StraÞburg, Arlington: Engel Verlag, 1996), Art. 3 at marg. no. 5.

Bad Torture ö Good Torture? 1067 acts of torture. Considering the academic discussion surrounding the Daschner case, the fact that the judgment refrains from explicitly characterizing the acts as torture (or inhuman treatment) may come as a surprise. But since torture is not, with rare exceptions, 24 a technical term in German criminal law, this approach cannot be faulted, and does not militate against applying the reasoning of the judgment to the general debate on torture. Secondly, the Court explicitly did not decide whether and under what conditions defences might be available in extreme circumstances, such as the ticking bomb scenario. In the opinion of the Court, the case under consideration did not represent an extraordinary case of this nature, but rather a typical case of everyday police work. Still, the judgment presents and discusses several views put forward in the scholarly debate on the Daschner case, which also refer to the ticking bomb scenario. Therefore, notwithstanding the Court s own restraint, the core message of the judgment as described above may legitimately be taken as a reference point in discussing the issue from an international criminal law perspective. 3. Is There a Ground for Excluding Criminal Responsibility Under International Law for Preventive Torture? ö Lessons from the Daschner Case In a recent issue of this Journal, Paola Gaeta addressed the question of whether, under international criminal law, necessity may be available as a defence for torture in the interrogation of suspected terrorists. 25 She came to a conclusion very similar to that of the German Court: necessity can never be available for preventive torture, but the torturer s sentence can and should be mitigated if torture is applied to avert an imminent deadly terrorist attack. Even though no precedent is found in international jurisprudence, 26 we have reason to believe Personally, I would tend to classify the threat in the Daschner case ( pain you will never forget ) not only as a threat of torture (which may be regarded as inhuman treatment) but as actual torture by inflicting severe mental suffering. As regards the non-derogability of the prohibition of inhuman treatment (and its status as compared to torture), international law is not clear. While Art. 2 of the Torture Convention does not apply to inhuman treatment (see Art. 16), under the ECHR and the AmCHR, the prohibition of inhuman treatment encompassed by the right to freedom from torture is, like the prohibition of torture itself, absolute and nonderogable; see Arts 15(2) ECHR and 27(2) AmCHR. See also N. Jayawickrama, The Judicial Application of Human Rights Law (Cambridge: Cambridge University Press, 2002), at 300 et seq. 24 See Ss 7(1) No. 5 and 8(1) No. 3 of the German Code of Crimes Against International Law. 25 Gaeta, supra note 2. 26 In the few cases in which international tribunals had to deal with torture, force was used not to prevent the commission or completion of a crime and save innocent life, but to intimidate or punish an individual victim or the population; see, e.g. ICTY, Furundzí ija (IT-95^17/1-T), Trial Chamber,10 December 1998, x160; ICTY, Judgment, Kunarac (IT-96^23/-23/1-T),Trial Chamber, 22 February 2001, x 482.

1068 JICJ 3 (2005), 1059^1073 that, in our day, preventive torture is not only of academic interest to international criminal lawyers, but is also of practical relevance in situations governed by international law. 27 This results, in particular, from the fact that the real or alleged terrorist is the paradigmatic object of preventive torture and, at the same time, the war on terrorism that we witness today tends, to a great extent, to be akin to a war proper. In this sense, individual acts of counter-terrorism, including preventive torture, are of concern to international law in general and international criminal law in particular. A. Preventive Torture in International Law Two distinct yet closely connected branches of international law deal with torture. 28 Torture, including preventive torture, is banned by international human rights law. This ban is non-derogable within the treaty systems enshrining such a ban (see, e.g. Article 4(1) of the UN Covenant on Civil and Political Rights on the emergency situations permitting derogation from the Covenant, as well as the similar provision on public emergencies in Article 15(1) ECHR). It is also part of jus cogens and hence may not be derogated from by two or more states through a contrary treaty. 29 Under Article 4(1) of the Torture Convention, states shall ensure that all acts of torture constitute offences under their criminal law. In fact, the very aim of the Convention is to prevent states from recourse to torture, even under extreme and extraordinary circumstances, and to ensure respect for this prohibition by the obligation to prosecute and punish acts of torture. Clearly, the unconditional prohibition of torture under human rights law brooks no exception. This view is supported by the interpretation of the Convention propounded by the Committee against Torture, according to which the Torture Convention prohibits states from invoking necessity for acts of torture. 30 This strict interpretation of international human rights law is in line with the reasoning of the German Court in the Daschner case. The protection of human dignity established through international human rights law by the categorical ban on torture is further safeguarded and strengthened by international criminal law. International law establishes criminal responsibility for acts of torture, including preventive torture, if committed as part of a widespread or systematic attack against any civilian population or if committed in the context of an international or non-international 27 See supra notes 3 and 4. 28 As for the interconnections between international criminal law and international human rights law, see G. Werle, Principles of International Criminal Law (The Hague: Asser Press, 2005), marg. nos 109 et seq. 29 See Gaeta, supra note 2, at 787, note 4 with further references. 30 See, e.g. CAT/C/CR/30/6, Conclusions and Recommendations of the Committee against Torture: Belgium (27/05/2003), where the Committee recommended that Belgium include a provision in the Penal Code expressly prohibiting the invocation of a state of necessity to justify the violation of the right not to be subjected to torture.

Bad Torture ö Good Torture? 1069 armed conflict. 31 In contrast to human rights law, however, international criminal law provides, as general principles, certain grounds for excluding criminal responsibility. The ultimate question is, therefore, whether criminal responsibility for these crimes of torture can be excluded based on the fact that torture is applied solely for preventive ends, in particular in order to save the life of one ö as in the Daschner case ö or several ö as in the ticking bomb scenarios ö innocent persons. At first glance, two distinct grounds for excluding criminal responsibility could be available: 32 self-defence (or rather, defence of another person) and necessity. 33 Accordingly, individual responsibility under international criminal law would be excluded if the torturer...acts reasonably to defend...another person...against an imminent and unlawful use of force in a manner proportionate to the degree of danger to the other person... (self-defence), or if the act of torture...has been caused by duress resulting from a threat of imminent death...against...another person, and the person acts necessarily and reasonably to avoid this threat provided that the person does not intend to cause a greater harm than the one sought to be avoided... (necessity). 34 This prima facie conflict between international human rights law and international criminal law can be resolved in two ways. First, it may turn out that, upon closer scrutiny, the grounds for excluding criminal responsibility established by international criminal law do not apply to preventive torture situations for reasons other than the absolute ban on torture under international law; if this were the case, there would be no conflict at all requiring a solution. Secondly, resolution is possible if international law itself provides guidance for solving the conflict between international criminal law and international human rights law. As regards the first alternative, it has been argued that in the case of preventive torture, two specific requirements of the defence of necessity could never be met: 35 (i) the victim of torture, the alleged terrorist, would not 31 See, e.g. Arts 7(1)(f), (2)(e) and 8(2)(a)(ii) and (c)(i) ICCSt., respectively. For departures of the definition of torture under international criminal law from the definition of the Torture Convention, see Werle, supra note 29, marg. no. 711. 32 There is no practical distinction between justifications and excuses made in international criminal law; see A. Cassese, InternationalCriminalLaw(Oxford: Oxford University Press, 2003), at 219 et seq; Werle, supra note 28, at marg. no. 283. 33 Article 31(1)(d) ICCSt. combines elements of duress and necessity; see I. Bantekas and M. Nash, International Criminal Law, 2nd edition (London: Cavendish, 2003), at 135; G.-J. Knoops, Defenses in Contemporary International Criminal Law (Ardsley: Transnational Publishers, 2001), at 92. While the defence of necessity traditionally justifies the act based on a choice of evils, duress is an excuse based on the lack of freedom of will in the face of an imminent threat. 34 See Art. 31(1)(c) and (d) ICCSt., respectively. Article 31 largely mirrors customary international law and general principles of law; see Cassese, supra note 33, at 230; M. Scaliotti, Defenses before the International Criminal Court: Substantive Grounds for Excluding Criminal Responsibility, 1 International Criminal Law Review (2001) 111^172, at 142; Werle, supra note 28, at marg. no. 243. See also, for the customary status of Art. 31(1)(c) ICCSt., ICTY, Kordic and Cerkez (IT-95^14/2), Trial Chamber, 26 February 2001, x 451. 35 See Gaeta, supra note 2, at 790 et seq.

1070 JICJ 3 (2005), 1059^1073 be innocent, and (ii) torture could never be a suitable and effective means of avoiding an imminent terrorist attack, as the torturer cannot be certain that his victim is in possession of the relevant information, that he or she will provide the information, or that the information will be correct. Thus, the torturer would never act necessarily as required by the definition of necessity. Neither argument is completely convincing. Although it is generally accepted that self-defence justifies only defence measures directed at an attacker and thus excludes measures against innocent persons, there is no evidence that necessity under international law, and under Article 31(1)(d) of the Statute of the International Criminal Court (ICCSt.) in particular, is, in contrast, restricted to justifying or excusing harm done to innocent persons and excludes measures against the author of the danger. Neither the wording of Article 31 ICCSt. nor a comparative survey of domestic legislation and case law support such a view. As regards the well known argument that it is uncertain whether torture will in fact produce the expected results ö i.e. in the situations discussed here, save innocent life ö this may be true in some cases. However, I would submit that it cannot be ruled out, at least theoretically, that situations will exist in which the torturer can indeed be certain that the victim possesses and can provide information required to prevent harm. B. Solving the Con ict Through a Human Rights-Oriented Interpretation of International Criminal Law What remains is the second alternative: the search for guidelines in international law itself on how to resolve the conflict between international human rights law and international criminal law. In this regard, it may be useful to recall how the conflict between fundamental rights (i.e. the human dignity of the victim of torture) on the one hand and the norms of criminal law (i.e. the availability of defences for acts required to prevent harm) on the other hand was resolved in the domestic context: there, the key argument refers to a hierarchy of norms which places human dignity at the very top, as the fundamental constitutional guarantee. Against this backdrop, the starting point of the search for guidelines in international law should be the question of whether a comparable hierarchy also exists in international law with regard to the norms of human rights law and criminal law. I will explore this question in two steps: first, I will discuss defences under the ICC Statute; and secondly, I will consider defences under customary international law. The latter is particularly relevant to the practice of those international tribunals that extensively apply customary international law (in addition to their Statutes), such as the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR). As for the availability of defences under the ICC Statute, I would submit that its drafters were aware of a possible conflict between human rights law and

Bad Torture ö Good Torture? 1071 the norms of criminal law ö and solved it. Under Article 21(3) ICCSt., the application and interpretation of law pursuant to this article (namely, the Statute, the Elements of Crimes, the Rules of Procedure and Evidence, as well as treaties, customary rules and principles of international law) must be consistent with internationally recognized human rights. This means that human rights take precedence over all other applicable rules, including the provisions of the ICC Statute itself. 36 If the application of the Statute were considered to infringe an internationally recognized human right, nothing should prevent the ICC from refusing to apply that rule. 37 In other words, it may be argued that Article 21(3) ICCSt. establishes a specific rule of interpretation that complements the general rules of treaty interpretation established by the Vienna Convention on the Law of Treaties. Pursuant to this specific rule, the ICC Statute (including the Statute provisions on the grounds for excluding criminal responsibility) must be construed in light of human rights law. Therefore, a restrictive interpretation of the grounds for excluding criminal responsibility, in line with the strict prohibition of (and duty to punish) torture under human rights law, is not only possible but required. 38 As for the availability of defences under customary international law, at first sight, no such rule exists explicitly giving pride of place to human rights. Both the right to freedom from torture and the grounds for excluding criminal responsibility are part of the same body of law: customary international law. However, two arguments can be advanced to support the view that a hierarchy actually exists, resulting in the need to construe the rules of international criminal law in light of human rights standards. The first one relates to the fact that human rights guarantees have by now permeated and indeed extensively reshaped the whole body of international law, especially international criminal law. 39 This holds true in particular as regards the human right to dignity, which is the foundation not only of human rights law as such, but also of freedom, justice and peace in the 36 See A. Pellet, Applicable Law, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Statute of the International Criminal Court. A Commentary, Vol. II (Oxford: Oxford University Press, 2002) 1051^1084, at 1079. 37 Ibid., at 1080. 38 In my view, the (possible) objection that a restrictive interpretation of the grounds for excluding criminal responsibility violate the principle nullum crimen sine lege as provided for in Art. 22 ICCSt. is not convincing. In particular, a rule against strict construction of defences cannot be inferred from subs. 2, according which the definition of a crime shall be strictly construed. This holds true at least if the restrictive interpretation is in line with the wording of the definition of the defence. See also B. Broomhall, Article 22, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999), 447^462, at marg. no. 37. 39 See, e.g. Preamble of the ECHR ( fundamental freedoms which are the foundation of justice and peace in the world ); M. Herdegen, Vo«lkerrecht (Mu«nchen: C.H. Beck, 2002), x 47, at marg. no. 10; A. Cassese, International Law, 2nd edition (Oxford: Oxford University Press, 2005), at 393^396. For the impact of human rights law on international criminal law, see generally Werle, supra note 28, marg. nos 109 et seq.

1072 JICJ 3 (2005), 1059^1073 world. 40 Given the tremendous impact of human rights law on every branch of international law, including criminal law, the contention is warranted that, in case of doubt, international criminal law rules must be construed in light of, and consistently with, human rights law. The second argument is more formal. The right to be free from torture is part and parcel of jus cogens and thereby constitutes a peremptory norm of international law, but the grounds for excluding criminal responsibility are not. A strong case can therefore be made that, in a case of conflicting application, this human right takes precedence over customary rules of international criminal law. This view is supported by Article 53 of the Vienna Convention, which also applies in the context of customary rules. 41 According to this provision, no derogation is permitted to rules of jus cogens by way of a customary norm not having the same character as a peremptory norm. It follows that a human rights-oriented interpretation of international criminal law in general, and of the grounds for excluding individual criminal responsibility in particular, is warranted, no matter whether the norms to be interpreted originate in the ICC Statute or (only) in customary international law. Based on the above, it can be contended that the starting point for a human rights-oriented interpretation of the grounds for excluding criminal responsibility under Article 31(c) and (d) ICCSt. and customary law respectively should be the requirement that the act (for which the exclusion of criminal responsibility is to be invoked) must be reasonable, and is not only necessary but also adequate to prevent or avert the danger and proportionate to such danger. 42 I would submit that a human rights-oriented interpretation of reasonableness leads to the conclusion that the use of preventive torture to defend against an imminent threat or to avoid a threat of imminent death is always unreasonable. Indeed, as a rule, the use of torture is not necessary, other means being normally available to avert the danger. Furthermore, even if one were to consider it necessary under certain circumstances, the fact remains that torture amounts to an exceedingly serious and intolerable attack on human dignity; therefore, resort to it is always out of proportion to the danger to life and limb to be prevented or averted. Consequently, a human rights-oriented interpretation of the grounds for excluding liability under international criminal law warrants the conclusion that individual criminal responsibility for torture as 40 The Preamble of the Universal Declaration of Human Rights states that the inherent dignity of all members of the human family is the foundation of freedom, justice and peace in the world ; see also ICTY, supra note 26 (Furundzí ija), x183( [I]ndeed in modern times [the general principle of respect for human dignity] has become of such paramount importance as to permeate the whole body of international law. ); M. Shaw, International Law, 5th edition (Cambridge: Cambridge University Press, 2003), at 116. 41 See Shaw, supra note 40, at 117; see also A. Cassese, International Law, supra note 39, at 204^205. 42 On reasonableness under Art. 31 ICCSt., see K. Ambos, Other Grounds for Excluding Criminal Responsibility, in A. Cassese, P. Gaeta and J.R.W.D. Jones (eds), The Statute of the International Criminal Court. A Commentary, Vol. I (Oxford: Oxford University Press, 2002) 1003^1048, at 1034.

Bad Torture ö Good Torture? 1073 a crime against humanity or a war crime cannot be excluded by the fact that the perpetrator used violence in order to save innocent life. However, international criminal law makes allowance for consideration of the special circumstances and the life saving motivation of the preventive torturer in determining the sentence. 43 According to Article 78 ICCSt., the Court shall take into account the gravity of the crime and the individual circumstances of the convicted person. This general rule is made more specific in Rule 145 ICC RPE. According to Rule 145(2)(a)(i), the Court shall take into account as a mitigating circumstance circumstances falling short of constituting grounds for exclusion of criminal responsibility. Since the Statute does not provide for fixed sentences or sentencing ranges, this theoretically allows for very lenient punishment. 44 Here, the Daschner judgment provides guidance and can be used as an example of strictness (by establishing guilt) and leniency (by reducing the sentence) towards the torturer at the same time. 4. Conclusion Torture is a crime under domestic law (in our case, German law) and, if committed in the context of an armed conflict or as part of a widespread or systematic attack against a civilian population, under international law, even if it is resorted to in order to coerce a person to provide information required or expected to save innocent life. As a consequence of the absolute ban on torture under international and national law, grounds for excluding criminal responsibility such as defence of another person or necessity cannot be based on the life-saving motives of the perpetrator. In international criminal law, this proposition follows from a human rights-oriented interpretation of the requirement that the act of self-defence or necessity be reasonable. Preventive torture is always unreasonable, however good the motives of the torturer may be. However, the specific and altruistic motivation of the perpetrator may only be taken into consideration in the determination of the sentence. Here, the guilty, but not to be punished verdict of the Daschner Court provides an example of how to strike a balance between conflicting interests. Ultimately, police officers, soldiers and other state agents may face a bitter choice if all legally available means of interrogation are exhausted: to make themselves guilty of a crime or to risk innocent lives. The choice of evils is a price that must be paid for upholding the rule of law. 45 This is something that should never be forgotten ö even in times of a global war on terrorism. 43 See also Gaeta, supra note 2, at 793. She makes the interesting additional suggestion that the state the torturer belongs to has to pay compensation. 44 It appears, however, that it would not be an option for the ICC to completely refrain from punishment, as the Daschner Court did. According to Art.77(1)(a) ICCSt., the ICC may impose a penalty of imprisonment for a specified number of years. This rule apparently establishes a minimum sentence of one year in case of conviction; see also R.E. Fife, Article 77, in O. Triffterer (ed.), Commentary on the Rome Statute of the International Criminal Court (Baden-Baden: Nomos, 1999) 985^998, at marg. no. 23. 45 See also Roxin, supra note 13, at 8.