Practice Relating to Rule 90. Torture and Cruel, Inhuman or Degrading Treatment
Germany’s Military Manual (1992) provides that one of the fundamental rules governing the treatment of prisoners of war is the prohibition on treating them inhumanely or dishonourably.
The manual adds that when questioned, “no physical or mental torture, nor any form of coercion, may be inflicted on prisoners of war”.
The manual further states that “torture and inhumane treatment … [and] wilfully causing great suffering, serious injury to body or health” are grave breaches of IHL.
Germany’s Law Introducing the International Crimes Code (2002) provides for the punishment of anyone who, in connection with an international or non-international armed conflict,
treats a person who is to be protected under international humanitarian law cruelly or inhumanely by causing him or her substantial physical or mental harm or suffering, especially by torturing … that person, [or] … treats a person who is to be protected under international humanitarian law in a gravely humiliating and degrading manner.
In 2003, in the El Motassadeq case
, the Third Criminal Law Senate of Germany’s Hanseatic Higher Regional Court Hamburg found the accused guilty of aiding and abetting murder in 3,066 cases, as well as attempted murder and causing bodily harm with dangerous means in five cases, in coincidence with membership in a terrorist organization, for contributions to the attacks of 11 September 2001. He was sentenced to 15 years in prison. The Senate held that the circumstance that the witness Binalshibh could not be examined was no violation of the right to a fair trial under Article 20, paragraph 3 of the Basic Law.
In 2004, on the accused’s appeal on points of law (Revision), the Federal Court of Justice overturned the judgment and remanded the case to another Senate of the Hanseatic Higher Regional Court for a new consideration of the evidence.
In 2005, the Fourth Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg found the accused guilty of membership in a terrorist organization and sentenced him to seven years in prison. The Senate found that it had not been proven that the accused had aided and abetted murder, attempted murder and causing bodily harm with dangerous means. With regard to the consideration of summaries of witness statements received from the United States as evidence, the Senate stated:
m) Consideration of evidence relating to the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahis after their arrest, transferred from the United States to the Senate
The Senate considers the summaries of statements made by Binalshibh, Khalid Sheikh Mohammed and Ould Slahi, described above, as usable. A prohibition on their use according to Article 15 of the 1984 UN Anti-Torture Convention or Section 136 a of the Criminal Procedure Code, in analogous application, is not given. However, the Senate ultimately has not based any conclusions on the summaries of the statements made by Binalshibh, Khalid Sheikh Mohammed and Slahi, introduced into the main hearing by their being read out …
Article 15 of the Convention, entered into force for the Federal Republic of Germany on 31 October 1990, provides that each State Party shall ensure that any statement which is established to have been made as a result of torture shall not be invoked as evidence in any proceedings, except against a person accused of torture as evidence that the statement was made. According to Article 1, paragraph 1 of the Convention, torture within the meaning of that provision means 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.
In the view of the Senate, the prohibition on the use of statements under Article 15 of the UN Anti-Torture Convention is domestically directly applicable law and therefore is to be taken into account and applied here …
However, the application of the prohibition on the use of statements requires that it is established that the statements in question were made as a result of torture. Based on the information available to the Senate and introduced by way of informal taking of evidence, it has not been possible to establish this in the criminal proceedings against the accused.
The competent US authorities, also in response to several enquiries by the Senate on this issue, have given no information on the whereabouts of Binalshibh, Khalid Sheikh Mohammed as well as Slahi … In response to the specific enquiry by the Senate regarding the circumstances of the examinations of the persons mentioned, the competent US authorities, by letter of 9 May 2005, gave the concluding notification that no information would be given … The authorities of the Federal Republic of Germany asked by the Senate for information, the Federal Chancellery, the Federal Ministry of the Interior and the Federal Ministry of Justice, issued blocking declarations in response to several enquiries by the Senate for further information inter alia regarding the persons mentioned above, in which they pointed out that they had not been authorized by the competent authorities of the United States to make the information, given to them solely for intelligence service purposes, available in the present criminal proceedings against the accused …
Ultimately, as regards the question of the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi on which the transferred summaries were based, the Senate analysed the publicly accessible sources therefore solely available to it, and by way of informal taking of evidence introduced numerous publications, those originally in English in translation, into the main hearing …
In the view of the Senate, the analysis of the articles and reports introduced ultimately showed that the Government and Ministry of Defense of the United States, on the one hand, denied the use or tolerance of torture, that however, on the other hand, the Government (the White House) at least acknowledged that Al Qaida detainees were not regarded as subject to the protection of international human rights conventions such as the Geneva Convention relative to the Treatment of Prisoners of War. Apart from that, there were indeed indications in the articles and reports introduced into the main hearing that alleged Al Qaida members were subjected to torture measures within the meaning of Article 1 of the UN Anti-Torture Convention. However, such measures cannot be proven by this, since none of the introduced articles and reports give verifiable sources.
…[I]n conclusion, the Senate does not regard as established within the meaning of Article 15 of the Convention the use of torture measures within the meaning of Article 1 of the UN Anti-Torture Convention in connection with the examinations of Binalshibh, Khalid Sheikh Mohammed and Slahi, on which the summaries transferred from the United States are based.
The Senate is aware that in the present case it is the State organs of the United States, the State accused of torture in the introduced articles and reports, themselves, from which more reliable and verifiable information, compared to the available articles and reports, could be expected. Admittedly, due to the lack of information regarding individual cases to be assessed here, this circumstance suggests that one infers from other cases or a general practice a corresponding handling in the relevant individual cases and regards the use of torture as established. However, in the present case, apart from the weak evidentiary situation caused by the blocking by the US authorities, there is another essential circumstance due to which the Senate in the present case does not infer from the practice in other cases or a general practice a corresponding handling in the cases of interest here and, in conclusion, regards the use of torture measures as not established.
The essential circumstance, further to the bad evidentiary situation, on the basis of which the use of torture is ultimately regarded as not established, is that, according to the summaries made available to the Senate, all three persons examined made both inculpating and exculpating statements with respect to various other persons …
Since the content of the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi, transferred by the US authorities, could, due to the numerous statements exculpating other persons contained in them, speak against the use of torture, the Senate overall has come to the conclusion not to regard as established a violation of Article 15 UN Anti-Torture Convention which would give rise to a prohibition on the use of evidence.
As regards the summaries of statements by Binalshibh, Khalid Sheikh Mohammed and Slahi made available to the Senate by the USA, a prohibition on the use of evidence also does not follow from an analogous application of Section 136 a of the Criminal Procedure Code in conjunction with Section 69, paragraph 3, Section 163 a, paragraphs 1, 2 and 4 of the Criminal Procedure Code. Section 136 a of the Criminal Procedure Code prohibits the use of such statements which were obtained under the employment of the impermissible measures listed in detail in paragraphs 1 and 2, and, according to paragraph 3, even if the accused consents to their use. According to the correct view, the prohibition, if applicable, applies without distinction for both inculpating and exculpating statements.
However, the provision of Section 136 a of the Criminal Procedure Code primarily is directed to the State organs responsible for criminal prosecution and covers only measures of public prosecution organs of the Federal Republic of Germany. As a principle, the provision of Section 136 a of the Criminal Procedure Code does not have a third-party effect for persons not belonging to this circle. According to the correct predominant view, an analogous application of Section 136 a of the Criminal Procedure Code with regard to third persons not directly covered by the norm only comes into consideration if such persons produced the information whose usability is in question in connection with an especially crass violation of the dignity of the human being. Among such crass violations are in particular also torture measures falling under Article 15 of the UN Anti-Torture Convention …
In the view of the Senate, the principles developed by the courts on the analogous application of Section 136 a Criminal Procedure Code demanded in exceptional cases in view of impermissible examination measures by private persons … also apply if nationals of foreign States use such examination measures. An analogous application of the prohibition on the use of evidence under Section 136 a of the Criminal Procedure Code to the present summaries of the statements by Binalshibh, Khalid Sheikh Mohammed and Slahi therefore would come into consideration, provided that the further requirements on the application of Section 136 a of the Criminal Procedure Code are fulfilled. Ultimately, however, this is not the case.
Section 136 a of the Criminal Procedure Code does not expressly regulate the evidentiary principles and standards to be applied in the establishment of a violation of the prohibition [contained in Section 136 a of the Criminal Procedure Code]. These principles and standards, however, follow from the position of the norm within the system of norms applicable to domestic criminal proceedings and from the object and purpose of Section 136 a of the Criminal Procedure Code. Essential in this context is the understanding of the transgressions regulated in Section 136 a of the Criminal Procedure Code as procedural violations, which, like generally all procedural requirements and violations, must be proven in order to be taken into account. If a violation of the prohibition on the use of evidence is not proven, the statement in question therefore can be used … The reason for this correct view is in particular that on the basis of the judicial obligation to establish the truth the non-usability of given evidence must be the exception and must not be made the rule. Unlike in connection with facts relevant for the guilt of an accused, the principle of in dubio pro reo does not apply to the establishment of the existence of a prohibition on the use of evidence … The facts giving rise to a prohibition on the use of evidence must, after the necessary informal clarification, be established to the conviction of the court. If important doubts remain, a potential violation is not proven and the statement in question can be used. This is the case here with regard to a potential use of torture measures, also falling under Section 136 a of the Criminal Procedure Code, against Binalshibh, Khalid Sheikh Mohammed and Slahi. Admittedly, there are points indicating the use of such measures, but, on the other hand, there are also circumstances speaking against it.
Insofar as with regard to Binalshibh, Khalid Sheikh Mohammed and Slahi, beyond the use of torture measures, a violation of Section 136 a of the Criminal Procedure Code comes into consideration on the basis of the fact of their long-lasting detention without trial and without access to defence counsel or other external persons, it admittedly seems more likely to regard these circumstances as proven, in comparison to potential torture measures. Whether, however, this would ultimately have to be assumed, need not be decided. According to the correct view, an analogous application of the prohibition on the use of evidence codified in Section 136 a of the Criminal Procedure Code comes into consideration only in cases of especially grave human rights violations. The denial of an orderly trial as well as the non-granting of liberty and external contacts does not yet fall under that, at least after the time span of three years to be assumed here, in the case of Binalshibh arrested in September 2002 and in the case of Khalid Sheikh Mohammed arrested in March 2003. In this context, it is to be borne in mind that the American legal order apparently permits such a treatment of the Al-Qaida members.
According to the explanations above, the summaries of the statements of Binalshibh, Khalid Sheikh Mohammed and Slahi can be used. They must be subjected to a thorough consideration of evidence. However, no changes of the findings made by the Senate without taking into account these summaries, or of their assessment, result from them.
In 2006, on the appeal on points of law (Revision) by the Federal Prosecutor General and private accessory prosecutors, the Federal Court of Justice overturned the conviction, finding the accused guilty of aiding and abetting murder in 246 cases (passengers and crews of the hijacked planes), in conjunction with membership in a terrorist organization, and, with regard to sentencing, remanded the case to another Senate of the Hanseatic Higher Regional Court.
On 8 January 2007, the Seventh Criminal Law Senate of the Hanseatic Higher Regional Court Hamburg sentenced the accused to 15 years in prison.
By decision of the Federal Constitutional Court of 10 January 2007, the accused’s constitutional complaint against the 2005 judgment of the Hanseatic Higher Regional Court Hamburg and the 2006 judgment of the Federal Court of Justice was not accepted for decision, for being partially inadmissible due to lack of substantiation, and furthermore unfounded.
By decision of 2 May 2007, the Federal Court of Justice dismissed as unfounded the accused’s appeal on points of law (Revision) against the 2007 judgment of the Hanseatic Higher Regional Court Hamburg, the judgment thereby becoming binding.
In 2004, in the Daschner case, Germany’s Regional Court of Frankfurt/Main held:
The accused E. is guilty of coercion according to Section 240, paragraph 1 of the Criminal Code. By threatening G., in the morning of 1 October 2002, with subjecting him to pain, under medical supervision, without injuries, in order to force him to disclose the location of the abducted child, he announced serious harm, making clear that he would not be the person acting but that he was speaking by order and in representation of the leadership of the office and therefore had influence on the realization of the threat.
The accused D. is guilty of inciting a subordinate to this crime, in accordance with section 357, paragraph 1 of the Criminal Code in conjunction with Section 240, paragraph 1 of the Criminal Code. As deputy-chief [of the Frankfurt police], D. was E.’s superior and bindingly directed him to commit this act, which E. also did.
… The threat led to the desired result. It was causal for G. giving up his resistance and disclosing the location of the child. …
Both the accused knew what they were doing and wanted the result. There are no legal grounds justifying their acts, and the threat of harm was to be deemed inappropriate for the purpose of achieving the desired outcome (Section 240, paragraph 2 of the Criminal Code).
There are no legal bases authorizing their acts. The police law provisions of the Security and Order Law of the State of Hesse [Hessisches Gesetz für Sicherheit und Ordnung] do not offer a legal basis authorizing the coercive attainment of a statement, but prohibit it. The general protection obligation of the State and its institutions, e.g. the police, does not grant such an authorization either. The protection obligation of the State to rescue human life only ever exists within the limits that are set for the actions of the State. Disrespect of legal norms by the executive is, due to Article 20, paragraph 3 of the Basic Law, not only a violation of the law, but also a violation of the Constitution. …
Even if one follows the legal view which applies the criminal law justification grounds excluding unlawfulness that are applicable to private persons also to actions of the State, the action of the two accused is neither justified as self-defence in the form of defence of a third person (Section 32 of the Criminal Code), nor as necessity (Section 34 of the Criminal Code).
[…T]he action was neither demanded within the meaning of Section 32 of the Criminal Code nor was it an adequate means within the meaning of Section 34 of the Criminal Code, since it violated Article 1, paragraph 1, sentence 1 of the Basic Law.
This fundamental constitutional provision is also reflected in Article 104, paragraph 1, sentence 2 of the Basic Law, according to which persons in custody may not be subjected to mental or physical mistreatment. According to Article 1, paragraph 1, sentence 1 of the Basic Law, human dignity shall be inviolable. No person must be made into an object by State authority, into an embodiment of fear of pain.
This legal concept has also found expression in international treaties and conventions with legal force in Germany, such as for example in Article 3 of the European Convention on Human Rights.
Respect of human dignity is the basis of this State which is based on the rule of law. …
The accused E. also cannot invoke his duty to obey superior instructions under Section 56, paragraph 1, sentence 1 of the Security and Order Law of the State of Hesse, because according to Section 56, paragraph 1, sentence 2 of the Security and Order Law of the State of Hesse this duty precisely does not exist if the instruction violates human dignity.
The same applies to the inappropriateness clause in Section 240, paragraph 2 of the Criminal Code. The threat with pain for the purpose of obtaining information was inappropriate. The internal nexus between the coercive means and the purpose of the coercion (purpose-means-relation) relates to a heightened degree of moral disapproval and anti-social behaviour. This notion of values also contains the imperatives of the Basic Law and therefore also the unalterable value of Article 1, paragraph 1 of the Basic Law. A violation of the imperative of respect for human dignity is therefore also to be considered as inappropriate if it – subjectively – was undertaken with the purpose of saving the life of a child.
An exception to the unambiguous legal situation would mean that the constitutional protection of human dignity in its absoluteness would be broken up and made accessible to a weighting of values; this would be tantamount to the breaking of a taboo.
Such an exception has been discussed in the context of case constellations involving terrorist attacks. There have been descriptions of borderline cases, in which the protection of the perpetrator’s human dignity was contrasted with the protection of the lives of thousands of human beings (“ticking-bomb-cases”). In the context of that discussion it has been contended that the victims’ human dignity demands that the State do everything, if necessary also apply mental or physical pressure, to save the lives of the human beings in danger. When weighting the values, the perpetrator’s human dignity being lower-ranking.
In the opinion of this chamber, Hecker (KJ 2003, p. 210) is correct in pointing out that, in view of today’s professional standards of police examination and interrogation techniques, a threat with or the application of pain is a regress to the techniques of the Middle Ages.
There are also no legal grounds excluding guilt.
The two accused cannot invoke an error in the form of a mistake of the law within the meaning of Section 17 of the Criminal Code, because, at the time of the commission of the act, they anticipated the possibility of acting unlawfully and, at the least, willingly accepted this risk. …
Both the accused are experienced officers in superior positions and knew the relevant norms of the police law and Section 136a of the Criminal Procedure Code. They knew that the threat was a prohibited method of interrogation. …
Duress as a legal ground excluding guilt within the sense of Section 35 of the Criminal Code is not given here. …This provision only exculpates relatives and persons close to a victim, due to their personal relation and conflicted situation, not however police officers.
There was no situation of duress excluding guilt not regulated by law. There was no unsolvable collision of duties, excluding guilt. … [I]t must be kept in mind that the application of duress not regulated by law in the context of powers of State organs can lead to a breakup of the existing law of organization and competences (cf. Böckenförde, NJW 1978, p. 1881). When applying it to constitutional law there is the danger that duress not regulated by law “leads to supra-constitutional duress, and that an open, general authorization for dealing with situations of duress and emergency” develops. Any constitutional or statutory limitation of powers would then be only provisional.
No other legal grounds excluding guilt can be seen; criminal responsibility according to Section 240, paragraph 1 of the Criminal Code is established.
In 2003, in a speech before the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
In spite of all efforts to outlaw torture worldwide, the extent to which it is practised is still horrifying. It is a matter of concern that a growing number of states tacitly or even explicitly tolerate the use of torture in the fight against terrorism. The prohibition of torture is absolute. Even in extreme situations there can be no exceptions. To put this clearly: any legitimation of torture would undermine the foundation established by decades of hard work aimed at enshrining human rights in international law.
In 2005, in a speech at the UN Commission on Human Rights, Germany’s Federal Minister for Foreign Affairs stated:
One of the global challenges outlined in the report by the High-level Panel is international terrorism with its totalitarian ideology. All forms of this major threat which again claimed countless lives in the last 12 months – I am thinking here of the horrific tragedy in Beslan or the almost daily attacks in Iraq – must be fought resolutely.
However, experience in recent years shows that terrorism can only be combated successfully with human rights – not without or even against them. Terrorists must not be allowed to force us to question our own values. Human rights norms must retain their full validity. This is true, above all, of the ban on torture which is absolute and must on no account be watered down.
In 2005, in its Annual Disarmament Report 2004, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
A proposal by the European Commission for a Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations, first submitted in December 2002 and amended in May 2004, provides prohibitions or licensing obligations regarding exports or imports of such equipment. Germany strongly supports the aim of this proposal as a contribution to the protection of human rights. For a part of that equipment Germany domestically has already introduced a licensing requirement for exports and thereby leads the way in Europe.
In 2005, in its Seventh Human Rights Policy Report, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
Despite the use or threat of torture being contrary to international law (Article 5 of the Universal Declaration of Human Rights, Article 7 of the International Covenant on Civil and Political Rights) and despite long-time efforts to ban it globally, the magnitude of this human rights violation is still appalling …
Against the background of the public debate whether and in which circumstances exceptions to the prohibition on torture might be justified, the Federal Government has repeatedly taken an unequivocal position and in this context has made clear that the prohibition on torture and on inhuman and degrading treatment is absolute and applies without exception also in states of emergency.
The case of the former deputy chief of the Frankfurt police Wolfgang Daschner, who gave instructions to threat a suspect with infliction of pain during an interrogation, caused a stir both in Germany and abroad and led to a contentious public debate on the prohibition on torture.
Object of the public discussion in Germany was the question whether and in which circumstances exceptions on the prohibition on torture might be justified. The Federal Government in this context made clear in unequivocal terms that the prohibition on torture and inhuman and degrading treatment applies absolutely, i.e. without exception also in states of emergency. The Federal Government is of the conviction that the prohibition on torture is one of the elementary and inalienable basic and human rights of the international community of States. The prohibition on torture is today recognized as ius cogens under customary international law and has been incorporated in numerous human rights treaties.
The Federal Government therefore welcomes that the decision of the Regional Court Frankfurt/Main of 20 December 2004 in the case Daschner clarified that there were no legal grounds justifying the behaviour of the deputy chief of police and his colleague.
Apart from military equipment and dual-use goods, German law on foreign trade provides for a licensing requirement also for the export of certain goods which can be used for violations of human rights, such as for example electric-shock batons and devices … In contrast to other EU member States, Germany thereby already has established domestic control provisions. On the European level, there are currently negotiations on a proposal by the European Commission, first submitted in December 2002 and then again in June 2004, for a Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations … Germany strongly supports the objective of the Commission’s proposal and in the context of the negotiations actively participates in its drafting and finalization. The aim is to adopt a binding Regulation, directly applicable in all member States in 2005.
3. Priorities of the German human rights policy 2005–2006
3.2. Fighting against torture and enforced disappearance
The Federal Government will commit itself emphatically to respect for the absolute prohibition on torture …
3.20. Applying human rights as a criterion in foreign trade
In order to avoid that traded goods and services are used to commit or facilitate human rights violations abroad, respect for human rights is relevant to the Federal Government also in the context of foreign trade. It will therefore
- promote the “EU Council Regulation concerning trade in certain equipment and goods which can be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment”, so it can be adopted as soon as possible.
In 2006, in a report in response to a request by the Parliamentary Control Panel (parliamentary body controlling intelligence services) regarding incidents relating to the Iraq war and the fight against international terrorism, Germany’s Federal Government stated:
2. Capture and transport of detainees by foreign authorities outside a formal legal procedure; reports of secret prisons and torture
abb) Assessment of the allegations under international law by the Federal Government
All measures taken to fight international terrorism must be in accordance with international law. Resolution 1566 (2004), unanimously adopted in the UN Security Council on 8 October 2004, in this context reminds States:
“that they must ensure that any measures taken to combat terrorism comply with all their obligations under international law, and should adopt such measures in accordance with international law, in particular international human rights, refugee, and humanitarian law” (preambular paragraph 6).
The obligation to adhere to international law also applies when States, fighting off a terrorist attack, an ongoing terrorist attack or an imminent attack, in a legally permissible manner invoke the right to self-defence according to Article 51 of the UN Charter.
If the right to self-defence is exercised in the context of an armed conflict, the rules of international humanitarian law, in particular the law of the 1949 Geneva Red Cross Conventions as well as the minimum human rights standards are to be respected. When fighting international terrorism outside an armed conflict, the rules of peacetime international law, in particular those on the protection of human rights, apply. This can lead to differing international law bases for capture, detention and the treatment of detainees.
With regard to the five following thematic issues, the details of the position of the Federal Government under international law are:
Prohibition on torture
The prohibition on torture and other cruel, inhuman or degrading treatment is part of indispensable customary international law. It demands absolute application, i.e. under no circumstances are exceptions permitted.
In a series of conventions, the prohibition on torture and other cruel, inhuman or degrading treatment is anchored also as international treaty law. Mention is to be made in particular of the 1966 International Covenant on Civil and Political Rights, the 1984 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the 1950 European Convention on Human Rights and the 1987 European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment. The prohibition on torture and other cruel, inhuman or degrading treatment expressly also applies to persons detained in armed conflicts, i.e. both for prisoners of war and civilian internees.
The prohibition on torture and other cruel, inhuman or degrading treatment is absolutely “emergency-safe”, also in connection with the interrogation of terrorists. This has, not least, been confirmed by the European Court of Human Rights in the case Ireland v. United Kingdom (judgment of 18 January 1978, Series A 25, No. 163), with regard to interrogation techniques of British security authorities dealing with suspected terrorists.
On the occasion of the public discussion in Germany regarding the case of the deputy chief of the Frankfurt police, the Federal Government has made clear in unequivocal terms that the prohibition on torture and inhuman or degrading treatment applies absolutely, i.e. without exception also in states of emergency. The Federal Government is of the conviction that the prohibition on torture is one of the elementary and inalienable basic and human rights of the international community of States.
Like the Federal Republic of Germany, the United States is a party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment, which in its Article 1 defines the term “torture” and in its Article 16 the term “other cruel, inhuman or degrading treatment”.
When ratifying the Convention, the United States made an interpretative declaration regarding its Article 1 and made a reservation against the prohibition on “cruel, inhuman and degrading treatment” in its Article 16. For years, inter alia the Committee Against Torture, the treaty body of the Convention against Torture, has criticized the declaration and the reservation.
The United States has, however, never contested the applicability of the Torture Convention also outside the US territory, i.e. for example in US prisons in Cuba, Iraq or Afghanistan. It also has never questioned the prohibition on deportation in view of a risk of torture (“non-refoulement”).
g) Procedure for future questioning by members of German intelligence services of persons detained abroad by local security authorities
Questioning persons detained abroad is an indispensable element of the acquisition of information by intelligence services for the clarification of dangers stemming from international terrorism …
Questioning by the intelligence services takes place independently of measures of consular assistance and formal examinations in the context of international assistance in criminal matters; they serve the acquisition of information relevant for the intelligence services. Such questioning does not aim to introduce the information gathered into criminal law proceedings.
Already in the past, questionings have taken place in close coordination with the competent security authorities of the States concerned. Voluntariness and express consent of the persons concerned are indispensable requirements. A questioning does not take place if in the individual case there are concrete indications that the person concerned is subjected to torture in the country where he finds himself. If something indicating this arises during the questioning, the questioning is immediately cancelled.
In 2006, in its Annual Disarmament Report 2005, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
During the period under report, the proposal by the European Commission for a Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations, submitted in 2002, has been adopted on 27 June 2005 after thorough consultations in which Germany was closely involved (Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, Official Journal of the European Union
, L 200/1, 30 July 2005). The Regulation will come into force on 30 June 2006 and provides prohibitions or licensing requirements for the ex-/import of such goods. For a part of these goods Germany domestically had already introduced a licensing requirement for exports and thereby led the way in Europe. By adopting the Regulation a directly applicable rule binding in all member States has now been created. The adoption of the Regulation, whose aims Germany strongly supports, is a decisive, concrete step towards the protection of human rights and is a practical consequence of the implementation of the guidelines on the abolishment of torture and the death penalty, adopted by the EU and the United Nations.
In 2006, in its Report on the Cooperation between the Federal Republic of Germany and the United Nations in the Years 2004 and 2005, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
Focal points of the Federal Government in the furtherance of civil and political rights in the context of the United Nations are, inter alia
, the fight against torture and capital punishment. Together with the EU partners, the Federal Government had actively participated in the development of an optional protocol to the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The objective of the “Optional Protocol to the Convention against Torture” (OPCAT) is to create preventative mechanisms by establishing independent international and national control bodies at places where persons are deprived of their liberty. Although currently neither on the federal level nor on the Länder level bodies exist which would fulfill the requirements of the Optional Protocol, it has in the meantime been possible to come to an agreement with the Länder based on a model developed by the Federal Government. On 20 September 2006, Federal Minister of Foreign Affairs Steinmeier signed the OPCAT for Germany in New York … In the period under report Germany together with the EU partners co-sponsored resolutions against torture both in the Commission on Human Rights and in the General Assembly, and in 2004 successfully advocated an extension of the mandate of the special rapporteur on torture for further three years.
In 2007, in its Annual Disarmament Report 2006, Germany’s Federal Government reported to the Bundestag (Lower House of Parliament):
The Council Regulation concerning trade in certain equipment which can be used for capital punishment, torture or other human rights violations (Council Regulation (EC) No 1236/2005 of 27 June 2005 concerning trade in certain goods which could be used for capital punishment, torture or other cruel, inhuman or degrading treatment or punishment, Official Journal of the European Union
, L 200/1, 30 July 2005) has come into force on 30 June 2006. It provides prohibitions or licensing requirements for the ex-import of such goods. For a part of these goods Germany domestically had already introduced a licensing requirement for exports and thereby led the way in Europe. This Regulation now has created a directly applicable binding rule in all member States. With the 76th Ordinance Amending the Foreign Trade and Payments Ordinance of 13 June 2006 and the 105th Ordinance Amending the Export List of 10 July 2006, the necessary adaption of the national legislation has taken place. The adoption of Council Regulation (EC) No 1236/200 is a decisive, concrete step towards the protection of human rights and is a practical consequence of the implementation of the guidelines on the abolishment of torture and the death penalty, adopted by the EU and the United Nations.