Studien zur Politischen Soziologie | 2 Clucas | Johnstone | Ward (Eds.) Torture: Moral Absolutes and Ambiguities Nomos BUT_Clucas_ua_4077-5.indd 1 20.11.2008 9:14:06 Uhr Schriftenreihe „Studien zur Politischen Soziologie“ herausgegeben von Prof. Dr. Andrew Arato, The New School for Social Research, New York Prof. Dr. Hauke Brunkhorst, Universität Flensburg Dr. Regina Kreide, Goethe-Universität Frankfurt am Main Band 2 BUT_Clucas_ua_4077-5.indd 2 20.11.2008 9:14:06 Uhr Bev Clucas | Gerry Johnstone | Tony Ward (Eds.) Torture: Moral Absolutes and Ambiguities Nomos BUT_Clucas_ua_4077-5.indd 3 20.11.2008 9:14:06 Uhr Die Deutsche Nationalbibliothek verzeichnet diese Publikation in der Deutschen Nationalbibliografie; detaillierte bibliografische Daten sind im Internet über http://www.d-nb.de abrufbar. Die Deutsche Nationalbibliothek lists this publication in the Deutsche Nationalbibliografie; detailed bibliographic data is available in the Internet at http://www.d-nb.de . 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BUT_Clucas_ua_4077-5.indd 4 20.11.2008 9:14:06 Uhr Acknowledgments We are very grateful to Daniel Metcalfe for his able assistance in editing the chap- ters for this volume, to the School of Law and Faculty of Arts and Social Sciences, University of Hull, for supporting the conference at which earlier versions of these papers were presented, and to all our colleagues and friends who helped to make the conference a success. Thanks also to Silke Baumann at Nomos for her patience in preparing the book for publication. Hull, England Bev Clucas December 2008 Gerry Johnstone Tony Ward V Contents Introduction 1 Tony Ward, Gerry Johnstone and Bev Clucas 1. ‘Jurists, Bad Christians’: Torture and the Rule of Law 10 Massimo la Torr 2. Justifying Defensive Torture 39 Uwe Steinhoff 3. The Ticking Bomb Scenario as a Moral Scandal 61 Francesco Belvisi 4. Torture and Democracy 73 Hauke Brunkhorst 5. Survey of the Crime of Torture in the Jurisprudence of the ICTY 83 Tsvetana Kamenova 6. English Law and Evidence Obtained by Torture: Vindication of Basic 96 Principle or Judicial Abnegation? Implications of A v. Secretary of State for the Home Department. Patrick Birkinshaw 7. Bush II’s Constitutional and Legal Theory: The Constitution of Emer- 116 gency between Law and Propaganda Agustín José Menéndez 8. Torture, between Law and Politics: A Retrospective View 139 Marina Lalatta Costerbosa 9. Nursing During National Socialism: Complicity in Terror, and Heroism 147 Alison J. O’Donnell, Susan Benedict, Jochen Kuhla and Linda Shields 10. Torture and the Paradox of State Violence 163 Penny Green and Tony Ward 11. 24 and Torture 176 Bev Clucas Contributors 203 VII Introduction Tony Ward, Gerry Johnstone and Bev Clucas In November 2007 a conference was held at the University of Hull to discuss the permissibility of torture. The very fact that such a conference should seem worth holding is symptomatic, as Massimo La Torre remarks in his chapter, of a signifi- cant shift in the terms of political and philosophical debate since 2001. The chapters that follow are based on papers presented at that conference. It should be said at once that none of the contributors to this book disputes that torture, in the great majority of instances in which it is actually practiced, is morally abhorrent. But some our contributors disagree passionately on questions such as the following: x Are there some circumstances, however rare, in which torture is morally permissible or even required? x If so, should the legal prohibition on torture be subject to defences which cover such exceptional circumstances? x Should government agencies prepare their officials to respond to such cir- cumstances? x What are the terms of acceptable public discourse about the circumstances in which torture is permissible? A. The ethics of exceptional cases The case which best illustrates these questions is, perhaps, one to which Uwe Stein- hoff refers in his chapter. On 27 September 2002, the 11-year-old son of a senior German bank executive was kidnapped and a million Euro ransom was demanded for his release. Three days later, a law student called Magnus Gaefgen was arrested after collecting the ransom. Under questioning he would not say where the boy was or whether he was alive. The day after the arrest, Wolfgang Daschner, the senior po- lice officer leading the investigation, authorized his officers, in writing, to extract information ‘by means of the infliction of pain, under medical supervision and sub- ject to prior warning.’1 Gaefgen was duly warned what was in store for him if he continued to withhold information. According to Gaefgen, he was told ‘that a spe- 1 F. Jessberger, ‘Bad Torture – Good Torture? What International Criminal Lawyers May Learn from the Recent Trial of Police Officers in Germany’ Journal of International Crimi- nal Justice 3 (2005): 1059-73, p. 1061; P. Finn, ‘Police Torture Threat Sparks Painful Debate in Germany’ Washington Post 8 March 2003. 1 cialist was being flown by helicopter to Frankfurt who “could inflict on me pain of a sort I had never before experienced”.’2 Whatever the exact words used, arrange- ments really were made for a helicopter to bring a police martial arts trainer3 who ‘knew the areas of the body that are particularly sensitive to pain and [could] pur- posefully attack those areas’,4 to Frankfurt. In the event, the threat was sufficient to induce Gaefgen to admit that the child was dead and reveal the whereabouts of the body. Gaefgen was convicted of abduction and murder and sentenced to life imprison- ment. The officer who threatened him was convicted of coercion (Nötingung) and Daschner of instructing a subordinate to commit a criminal offence (Verleitung eines Untergebenen zu einer Straftat). The Regional Court rejected the defences of self- defence or defence of another (Nothilfe) and justificatory emergency (rechtfertigen- der Notstand).5 To allow either defence on the facts of the case would infringe an absolute constitutional prohibition on violations of human dignity: Respect for human dignity is the basis of this state, which is based on the rule of law. The framers of the Constitution have deliberately put such notion at the outset of the Constitution. In contrast, the right to life and to physical inviolability is only laid down in Article 2 para- graph 2 of the Grundgesetz. The motivation behind that lies in the history of this state. Docu- ments relating to the origin of the German Federal Republic make it absolutely clear that the members of the Parliamentary Council had very much in mind the cruelties of the National So- cialist regime. They pursued the fundamental purpose of preventing anything similar from re- curring and clearly to bar any such temptation through the drafting of the Grundgesetz.The human being was not to be treated for the second time as somebody having information that the state would wring out of him, even if for the purpose of serving justice.6 One aspect of the ‘cruelties’ to which the Court refers is discussed by Alison O’Donnell and her colleagues in Chapter 9 – and the unimaginable pain inflicted, for example, on concentration camp inmates in the course of medical experiments would clearly constitute torture under the legal definition discussed by Tsvetana Kamenova in Chapter 5. But do these contingent historical circumstances afford a basis for a morally absolute prohibition of torture at all times and in all circum- stances? The court stopped short of that conclusion, acknowledging that there were ‘theoretical borderline cases’ which the facts of the case – where the police had not, in the court’s view, exhausted all options short of torture – did not require it to de- cide. Uwe Steinhoff argues in Chapter 2 that self defence or the defence of others 2 J. Hooper, ‘Germans Wrestle with Rights and Wrongs of Torture’, Guardian 27 February 2003. 3 Finn, ‘Police Torture Threat’, p. A19. 4 Regional Court (Landgericht) of Frankfurt am Main, ‘Decision of 20 December 2004. Daschner Wolfgang and E. Case’, excerpts translated as ‘Respect for Human Dignity in To- day’s Germany’ Journal of International Criminal Justice 4 (2006): 862-5. 5 Jessberger, ‘Bad Torture – Good Torture?’, p. 1064. 6 Regional Court Decision, p. 863 (paras. 23-4). 2 provides both a moral and a legal justification for torture in cases like Daschner’s, although for reasons that he has stated more fully elsewhere,7 he opposes any institu- tionalization of torture or training of torturers. Hauke Brunkhorst (Chapter 4), by contrast, insists that the legal, as distinct from the moral, prohibition on torture must remain ‘notstandfest’ – firm whatever the emergency. Though Daschner and his colleague were convicted, the court found there were ‘massive mitigating circumstances’ and imposed only nominal penalties (reprimands and suspended fines).8 Was this simply a merciful response to two people