II. Can We Ever Justify or Excuse Torturers? |
May a State Torture Suspects to Save the Life of Innocents?
* Professor of Criminal Law, Criminal Procedure, Comparative Law and International Criminal Law at the Georg-August Universität Göttingen; Judge at the District Court (Landgericht) Göttingen. Extended version of a paper presented at the (first) joint symposium on Human Dignity of the Faculties of Law of Hebrew and Göttingen Universities, Jerusalem, 2–3 September 2007, the XXVII Seminario internazionale di studi italo-tedeschi, Meran 26/27 October 2007, the Francis Lieber Colloquium on War and Crime at Columbia Law School, New York City, 19 November 2007, the Universidad Autonoma de Madrid, Area de Derecho Penal, 27 February 2008 and the Centro de Estudios de Derecho Penal, Santiago de Chile, 9 April 2008. I am grateful to the participants for critical comments and especially to Prof. Dr M. Kremnitzer, Dr Itzahk Kugler and Dr Y. Shany, for assisting me with Israeli law and material. I must apologize to Israeli colleagues that I do not read Hebrew and therefore had to rely on English texts and translations. Clearly, serious comparative law research requires at least passive knowledge of the legal system's language one is studying; otherwise it is difficult, if not impossible to grasp the subtleties of national debate. [kambos{at}gwdg.de]
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Abstract |
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The old debate on the (Israeli) ticking bomb cases must be revisited in the light of the increasing threat by terrorist bombers and a recent German kidnapping case. Both cases may be combined as one ‘model case’ to test whether the claim of a truly absolute prohibition of torture can really stand in extreme situations where the use of torture may be the only means to obtain the necessary information to prevent great(er) harm for innocents. Even in these situations the absolute prohibition against torture must not be relaxed ex ante and in abstracto — given the unequivocal situation in international law and the negative policy implications a flexible approach would have. However, this does not necessarily entail the individual investigator's criminal responsibility ex post and in concreto given the conflicting duties — to respect the (terrorist) suspect's human dignity and at the same time (actively) protect potential victims of this suspect's action — he has to face. A just solution to this dilemma can only be found by distinguishing between, on the one hand, the state and the individual level, and on the other hand, between (non-) justification (wrongfulness) of the act of torture and excuse (personal blameworthiness) of the torturer. Thus, the investigator may be excused, but his conduct not justified, since this would convert the torture into something lawful or even socially acceptable and thus undermine the absoluteness of the conduct rule not to torture. This result is developed in the last part of this article taking into account the relevant provisions of the Israeli and German Penal Codes and the ICC Statute (Part 4). Before the Israeli and German cases can be compared (Part 1), some clarifications as to the status and rationale of the international prohibition of torture must be made (Part 2) and a ‘model case’, where preventive torture may be necessary should be considered (Part 3).