European Court of Human Rights decision on torture: Gaefgen vs. Germany

“Torture” in the Dock. By John Rosenthal
A tough interrogation in Germany

Policy Review. December 2008 & January 2009. [Complete article with references here]

— Scene 1: Frankfurt, Germany, 1 October 2002, early morning

In the Frankfurt police headquarters, the atmosphere is tense. Deputy Police Chief Wolfgang Daschner is losing patience. On the previous day, his officers arrested one Magnus Gäfgen, a 27-year-old law student. Gäfgen is suspected of having kidnapped 11-year-old Jakob von Metzler, son of the banker Friedrich von Metzler. Two days earlier, Gäfgen had personally collected a 1-million-euro ransom payment. But there is no sign of the boy and Gäfgen has refused to give police interrogators accurate information about his whereabouts. A police psychologist, observing the questioning, describes Gäfgen’s responses as a “pack of lies” [Lügengebäude]. Deputy Police Chief Daschner fears that Jakob’s life may be in danger. In a memorandum, he writes: “We need to ascertain without delay where the boy is being held. While respecting the principle of proportionality, the police have an obligation to take all measures in their power to save the child’s life.”

Daschner decides to act. He dispatches police inspector Ortwin Ennigkeit to the office in which Gäfgen is being held for interrogation. Ennigkeit’s assignment: to make Gäfgen talk — if necessary by threat of torture. Indeed, Daschner has resolved not only to threaten Gäfgen with pain, but to carry out the threat if his prisoner is not otherwise forthcoming. A doctor has been found to supervise the proceedings.

In the interrogation room, Ennigkeit tells Gäfgen that a “special officer” is on his way. If Gäfgen does not tell Ennigkeit where the boy is, the “special officer” will “make him feel pain that he will not forget.” On Gäfgen’s own account, the formula is still more menacing: the officer “will make you feel pain like you have never felt before.” “Nobody can help you here,” Ennigkeit tells him, according to Gäfgen’s testimony. “We can do whatever we want with you.” On Gäfgen’s account, moreover, Ennigkeit already begins to rough him up: shaking him so violently that his head bangs against the wall and hitting him in the chest hard enough to leave a bruise over his collarbone. Gäfgen’s testimony is consistent with the tenor of Daschner’s instructions, which, on Daschner’s own admission, called for the “use of direct force” [ Anwendung unmittelbaren Zwangs].

In any case, whether the mere threat of pain has been sufficient or the latter has had to be supplemented by the “use of direct force,” within minutes of Ennigkeit’s entering the interrogation room Gäfgen talks. He tells Ennigkeit where Jakob is to be found. Police rush to the location and find the boy dead, his corpse wrapped in plastic and submerged under a wooden jetty in a pond.

— Scene 2:Guantánamo Bay Prison Camp, Cuba, ten days later

The atmosphere in Joint Task Force 170 is tense. The task force has been set up to obtain intelligence from detainees, but the effort is lagging and army interrogators are losing patience. They have discovered that one of the detainees appears to have been directly involved in the 9/11 plot. Mohammed al-Qahtani attempted to enter the United States in early August 2001, but was turned back by immigration officers in Orlando, Florida. Telephone intercepts of conversations of 9/11 facilitator Mustafa al-Hawsawi indicate that al-Qahtani was slated to serve as the missing “twentieth hijacker” on September 11. Plot leader Mohammed Atta is known to have been at Orlando International Airport on the day of al-Qahtani’s arrival, presumably to meet him. Al-Qahtani was sent back to his native Saudi Arabia and then traveled to Afghanistan. In mid-December, two months after the start of Operation Enduring Freedom, he was taken prisoner on the Pakistani border along with 29 other suspected al Qaeda members apparently fleeing the Battle of Tora Bora.

In early October 2002, the questioning of al-Qahtani has been going nowhere. Interrogators and staff psychologists are convinced that he is lying: repeating prefabricated cover stories, no matter how implausible, as required by al Qaeda security protocols. He insists, for example, that he traveled to the United States to import used cars and that he was in Afghanistan merely to purchase falcons.

The first anniversary of the 9/11 attacks has only just passed. A spike in intelligence has American officials on high alert. On October 8, Bin Laden deputy Ayman al-Zawahiri releases an audio statement threatening new attacks against America and American allies. The commanders of JTF170 decide they need to act. On October 11, Major General Michael E. Dunlavey sends a memo to U.S. Army Southern Command requesting authorization to use more aggressive interrogation techniques with the detainees. The request gains still greater urgency on the very next day as al Qaeda makes good on its threats, killing over 200 people in multiple bombings on the Indonesian resort island of Bali. Dunlavey’s request will be endorsed by SOUTHCOM and sent up the line to Secretary of Defense Donald Rumsfeld.

The request and the Department of Defense’s response to it have pride of place in the media-driven mythology of what have come to be known as the “torture memos.” The techniques proposed by JTF170 include several milder “Category I” and “Category II” techniques, such as yelling at a detainee (Category I), requiring a detainee to stand for a maximum of four hours (Category II), and “forced grooming” (i.e. shaving a detainee’s beard against his will — likewise Category II). All these techniques will be approved. Included among the harshest “Category III” techniques, however, JTF170 requests authorization to threaten detainees with “painful consequences” if they fail to cooperate. As it so happens, this is precisely the method used by German police inspector Ortwin Ennigkeit a mere ten days earlier to obtain the cooperation of Magnus Gäfgen. Following the advice of Department of Defense general counsel William J. Haynes, the request for authorization of this method is . . . refused.


The Gäfgen torture complaint

In june 2005, the child-murderer and law student Magnus Gäfgen lodged a complaint against Germany with the European Court of Human Rights (ECHR). In his complaint, Gäfgen accused Germany of having violated his rights under the European Convention on Human Rights and, more specifically, of having violated the prohibition on torture contained in Article 3 of the Convention.

On June 30, 2008, the European Court of Human Rights rejected Gäfgen’s complaint and cleared Germany of the charge of tolerating torture.3 The Court found that the treatment to which Daschner and Ennigkeit subjected Gäfgen did not reach the threshold required to be considered as torture (§69). On the Court’s assessment, it did, however, constitute “inhuman treatment” (§70), which is likewise prohibited by Article 3. Nonetheless, the Court found that German judicial institutions had acted in such a way as to provide Gäfgen sufficient “redress” for the offense suffered and thereby, in effect, to nullify any violation of the Convention. According to the somewhat surreal reasoning of the Court, Gäfgen had been, but was no longer, a victim of “inhuman treatment” (§82). He had “lost” his “victim status.”

The “redress” consists of two elements. In the first place, Gäfgen’s “confession” to Ennigkeit was not allowed into evidence in the German courts. By virtue of this exclusion, the Court was likewise able to find that Gäfgen’s right to a fair trial, as laid out in Article 6 of the Convention, had not been violated.

But the notion that the exclusion of the “confession” isolates the rest of the court proceedings from the effects of the torture threat — the “fruit of the poisonous tree,” as it is called in legal discussions — is patently absurd. In fact, strictly speaking, Gäfgen did not even “confess” to Ennigkeit. Rather, under threat of torture he was compelled to divulge the location of Jakob von Metzler’s body, thus leading the police to what is obviously the single most important piece of evidence underpinning the murder charge against him. Indeed, as the Bulgarian judge Zdravka Kalaydjieva pointed out in the sole dissenting opinion to the Court’s ruling, without the boy’s body it is doubtful that Gäfgen could even have been charged with murder.

The second element of “redress” identified by the Court is equally spurious and equally obviously so: The majority of the court found that Gäfgen had been afforded redress by virtue of the fact that a German court tried and convicted Daschner and Ennigkeit for their acts (§80). In December 2004, the District Court of Frankfurt am Main found Ennigkeit guilty of having “coerced” Gäfgen (i.e., by threat of violence) and Daschner of having incited his subordinate to do so.

But the verdict was purely theoretical: for while the court did indeed find the two men guilty, it refused to apply sanction. Daschner and Ennigkeit were merely “warned” and given “suspended” fines: or, in plainer language, they were not even fined. The European Court of Human Rights gingerly describes this as a “comparatively lenient” sentence (§78). If words are not to be abused, it is, more precisely, no sentence at all. Making a mockery of the principle that there is no law without enforcement, the German court itself observed: “The upholding of the legal order required a guilty verdict, but not punishment.” As further evidence of the practical nullity of the court’s verdict, neither man has a criminal record as a result of it. In effect, Daschner und Ennigkeit were found guilty, but not convicted. Barely one year after the judgment, Daschner was promoted to Chief of the Police Directorate for Technology, Logistics, and Management of the German state of Hesse.

The German court’s guilty verdict in the Daschner case amounts to nothing more than an alibi for Germany and the German legal order as a whole. By theoretically acknowledging the wrong committed, it permits Germany to appear to respect Article 3 of the Human Rights Convention — not to mention its obligations under the un Convention against Torture — while in practice ignoring them. It is remarkable that the European Court of Human Rights should find such an obviously bogus construction to be consistent with the requirements of the Convention. And it is both ironic and revealing that the only judge to insist on truly upholding the prohibition on torture and inhuman treatment — that is, in practice and not merely “in theory” — should hail precisely from Bulgaria, a new eu member state the European Commission has recently seen fit to chastise for alleged insufficiencies in the rule of law. Judges from Denmark, Germany, and Estonia — all eu member states in good standing — had no such scruples.

The Article 3 prohibition is one of the few legal protections laid out in the European Human Rights Convention that is not burdened with all sorts of exceptions or subject to possible derogation in a “public emergency.” The Court majority itself recognized that the prohibition on torture and inhuman treatment is unusual in this respect (§63): Unlike the highly “relative” guarantees provided elsewhere in the Convention, the prohibition on torture and inhuman treatment is “absolute.” By, nonetheless, citing “mitigating factors” in its ruling (§69), the Court, in effect, jettisoned the absolute character of this supposedly “absolute” prohibition. In so doing, it adopted the perspective of the Frankfurt District Court, which, in its nominal ruling against Daschner and Ennigkeit, cited “massively extenuating circumstances” (massive mildernde Umstände) in order to justify its refusal to apply sanction. These “extenuating circumstances” included both the presumptive “good intentions” of the police officials —saving the life of Jakob von Metzler — and the stressful circumstances under which the infraction took place.

The Strasbourg court somewhat “hid” this relativizing of the prohibition by bizarrely including its own discussion of “mitigating factors” in its assessment of whether torture could be said to have occurred at all (§69) and not, for example, in the discussion of appropriate “redress.” But the result is the same. By finding that the prohibition could be violated without real consequence, the Court has, in effect, transformed the supposed legal protection provided by Article 3 into a discretionary matter. Moreover, as Judge Kalaydjieva notes in her dissenting opinion, in light of the “mildness” — in fact, the nonexistence — of the sanctions held to provide adequate redress, the Court’s ruling will give positive incentive for police officials to torture or threaten torture in the future.6 It thereby undermines the very raison d’être of the Human Rights Convention.


The Gäfgen ruling and the American “torture” debate

The decision of the European Court of Human Rights in the Gäfgen case was eagerly anticipated and widely discussed in the German media. In keeping with the importance attached to the case in Europe, the Court took the unusual step of broadcasting the announcement of its judgment on the Council of Europe website. But the ruling went almost entirely ignored by the American news media. In light of the spectacular nature of the case and, above all, the raging American debate on torture in connection with the Guantánamo Bay prison camp and the war on terror, on first glance this might seem odd.

But on further reflection, it is perhaps precisely its obvious relevance to the American “torture” debate that explains the American media’s indifference to the ECHR ruling. The ruling was announced just as a campaign to charge senior Bush administration officials with “war crimes” was reaching fever pitch this past summer. With leading news organizations like the New York Times openly abetting that campaign, it would hardly have been opportune for those same news organizations to call attention to a European precedent that puts the actions of the American officials in a more favorable light — and all the less so as the editorial boards that have been most adamant in denouncing alleged American “torture” practices typically regard Europe as a paragon of virtue in the matter of respecting international law.

In mid-June, only two weeks before the announcement of the ECHR ruling in the Gäfgen case, the NGO Physicians for Human Rights released a widely-publicized report titled “Broken Laws, Broken Lives,” which purports to provide evidence of torture suffered by detainees held by the United States at Guantánamo Bay and elsewhere. Almost concurrently, British lawyer Philippe Sands published his book Torture Team: Rumsfeld’s Memo and the Betrayal of American Values (Palgrave Macmillan, 2008). The memo in question is the December 2002 Department of Defense memorandum that authorized JTF170 to use aggressive interrogation techniques. (The memo was in fact authored by Pentagon General Counsel William Haynes, but it was approved by Rumsfeld.)

The cover of Torture Team features a close-up of Donald Rumsfeld’s signature on the document, darkly juxtaposed with a photo of barbed-wire. Somewhat comically, in light of the gravity of the context, the signature is accompanied by the following handwritten marginal comment: “However, I stand for 8–10 hours a day. Why is standing limited to 4 hours?” The remark highlights the relative mildness of the techniques actually approved by Rumsfeld and reveals, furthermore, its author’s reference to, so to say, “normal” intuitive standards of human durability in assessing their acceptability. This did not, however, prevent Sands’s publisher from splashing it over the cover of a book whose very premise involves abandoning such normal, intuitive standards in order to stylize those techniques into “torture.”

Two points are particularly notable about the ECHR’s Gäfgen ruling in light of the accusations against Rumsfeld and other Pentagon officials. The first is that the ECHR explicitly found that one of the techniques Rumsfeld and Haynes rejected as too severe does not meet the threshold for being regarded as torture. Citing the Army’s “tradition of restraint,” Rumsfeld and Haynes refused to authorize threats of physical violence, as well as two other “Category III” techniques, “exposure to cold weather or water” and what has come to be known as “waterboarding.” (The only “Category III” technique that was approved was the “use of mild, non-injurious physical contact such as grabbing, poking in the chest with the finger, and light pushing.”) The Court, however, found that mere threats of violence, if they are not carried out, do not as such constitute torture. It came to this conclusion even while recognizing that Ennigkeit’s threats must have caused Gäfgen “considerable mental suffering” (§69). By the standards of the European Court of Human Rights, then, all less harsh measures should not be regarded as torture either.

The Court’s finding in this regard ought not, of course, to have any direct legal relevance. The United States is not a party to the European Convention on Human Rights and it is not represented in the Council of Europe to which the ECHR is attached. Nonetheless, the finding is especially awkward for Physicians for Human Rights and kindred NGOs, since such groups tend precisely to regard ECHR jurisprudence as authoritative even for countries like the United States that are not part of the Council of Europe. In this respect, the NGOs are following the lead of the un special rapporteur on torture, the Austrian professor Manfred Nowak, who, in accusing the U.S. of torture in a highly-publicized 2006un report, likewise cited ECHR jurisprudence.

The fact that the ECHR acknowledged Gäfgen’s “considerable mental suffering” renders its finding even more awkward for Physicians for Human Rights, since the latter makes ample use of the notion of “psychological torture” in order to elevate physically nonaggressive interrogation practices into the torture category. The group has indeed previously devoted a 135-page report to the subject. As it so happens, Ennigkeit appears to have expressly aimed to maximize Gäfgen’s psychological torment, not only by invoking the imminent arrival of the “special officer,” but also, if Gäfgen is to be believed, by threatening to allow him to be sexually abused by fellow prisoners.

Of course, even if the interrogation methods approved by the Pentagon do not rise to the level of torture, they could well be considered “inhuman treatment,” which is likewise prohibited under the un Convention against Torture (more fully, the un “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”). No one reading the transcript of Mohammed al-Qahtani’s interrogations that was leaked to the press in 2005 could doubt that the treatment to which he was subject by his interrogators was, by ordinary standards of human interaction, crude and abusive.

But this is where the second salient aspect of the ECHR Gäfgen ruling is especially relevant. For while the ECHR found that the Frankfurt police’s treatment of Gäfgen did constitute “inhuman treatment,” it accepted the Frankfurt District Court’s judgment that under the circumstances this treatment did not warrant punishment.

The compassion shown for the perpetrators in the Frankfurt court’s judgment is striking. In adumbrating the “massively extenuating circumstances” that on its view militated against the application of sanction, it notes that “for both of the accused, it was exclusively and urgently a matter of saving the child’s life.” It is “also to be taken into account,” the Court adds a bit further on, “that g’s [Gäfgen’s] provocative and unscrupulous manner of answering questions had strained the nerves of the investigators to the breaking point (aufs äußerste strapazierte). Trained in law, he knew how to formulate and present his responses, so that they constantly produced doubts, hopes, and disappointments and provided no certainty.” “Moreover,” the Court continues, “the situation was extraordinarily chaotic. The police personnel had been on duty overtime. They were worn out and tired. The accused E. [Ennigkeit] had worked through the night and the accused D. [Daschner] had only slept for a few hours. The overwrought sensibilities of the accused substantially reduces their guilt, since they lowered their inhibitions to acting. Neither man could take any more. Furthermore, both of them had led irreproachable lives up to that point.” And so on.

One may well wonder whether the accusers of Donald Rumsfeld and other Pentagon officials would be prepared to acknowledge “massively extenuating circumstances” in their cases. But if the desire to save the life of an eleven-year-old boy is an extenuating circumstance, how can the desire to prevent a follow-on attack to 9/11 and to save potentially thousands of innocent lives not be one? And if the difficulty involved in questioning a wily and arrogant 27-year-old student who has been “trained in law” is an extenuating circumstance, how can the difficulty involved in questioning an evasive and potentially dangerous al Qaeda operative who has been trained in operational security measures not be one?

To deny the same degree of forbearance to American officials and personnel involved in the war on terror is to imply that irregular combatants forming part of terrorist organizations deserve greater legal protections not only than ordinary prisoners of war, but indeed than ordinary citizens. Such an absurd — and for the United States suicidal — logic could only be embraced by persons who are fundamentally committed to seeing American counter-terrorism efforts fail.

John Rosenthal writes on European politics, with a special focus on Germany and France. His work has appeared in the Claremont Review of Books, Opinion Journal, Les Temps Modernes, and Merkur. He is a contributing editor for World Politics Review.