The Strict Prohibition of Torture: Test Case for Security Politics Based on the Rule of Law
Human rights as an opportunity for security politics
Human rights are a positive resource for security politics. This statement, which I will explain below, could be misunderstood, so let me start by making two things clear. The idea of a “resource” does not mean that the primary purpose of human rights is to serve enlightened security politics. Human rights institutionalize the respect that is due to every human being in their capacity as responsible subjects. This is the primary purpose of human rights – not their potential usefulness in terms of security politics. Nevertheless, strictly upholding human rights turns out to be a sensible course of action in the long term, also with regard to security politics. By making this assertion, I do not in any way wish to deny that specific conflicts of interest may occur between human rights and civil liberties on the one hand, and state security politics on the other. That would be the second misunderstanding that I want to clear up at the outset. Tensions and conflicts cannot be ignored. For example, the right to privacy often clashes with the state’s interest in obtaining information for preventive counterterrorism. Security considerations may lead to restrictions on the freedom of assembly. Freedom of travel may also be subject to state-imposed limitations, if it is feared that someone might go overseas to attend a terrorist training camp. In extreme cases, governments may even suspend certain human rights guarantees by declaring a state of emergency.
When exploring human rights as a positive resource for security politics, we must be mindful of the clarifications set out above, otherwise the idea is meaningless. To explain the idea, I will begin by briefly discussing the function of human rights. In this context, I wish to make it clear that human rights are anything but “utopian.” As the normative cornerstones of peaceful coexistence, they define our understanding of a liberal state governed by the rule of law. In times of threat, such as that posed by terrorist networks, they turn out to be particularly important. They combine normative clarity with a certain degree of pragmatic elasticity – but this does not mean that torture can ever be justified. Freedom from torture is one of the few “absolute” human rights norms which do not permit restrictions or trade-offs of any kind. As such, it constitutes a special challenge for security politics based on the rule of law.
Human dignity as the foundation of human rights
“All human beings are born free and equal in dignity and rights.”1 This key sentence from the 1948 Universal Declaration of Human Rights concisely sums up the normative profile of human rights, and the fundamental pillar of their rationale is human dignity. It is to be respected equally in every human being. The equality of dignity corresponds to all humans’ equality in their basic freedoms and civil liberties, to which everyone is entitled: freedom of conscience, freedom of religion, freedom of opinion, freedom of assembly, freedom of association, free unionization, etc.
Establishing an order in which equal freedom for all prevails is the main task for the state governed by the rule of law. When enforcing the rule of law – using the state’s monopoly on violence if necessary – the state is at the same time itself bound by the law. This is the crucial point, since this distinguishes the rule-of-law state from authoritarian systems and mafia-like regimes. Even though the latter may claim to uphold “law and order,” they typically exempt themselves from any legal control. Thus, in order to retain credibility, those who seek to enforce the rule of law must at the same time abide by it, and allow institutional scrutiny of their actions. Precisely this defines the high standards of conduct expected of a state governed by the rule of law.
Human rights are not designed for an ideal world, but for the world as it is – with all its ambiguities, contradictions, and confrontations. They certainly take into account the ever-present potential for difficult conflicts to arise between civil freedoms and liberties on the one hand and the state’s interest in order and security on the other, which translates into a certain degree of “elasticity” in the way human rights are formulated. Most human rights can be restricted by the state if necessary. The key point, however, is that restrictions and limitations are only legitimate if they satisfy a list of criteria set out for this purpose: there has to be a legal basis; they can be imposed only for specific higher purposes; they must actually be suited to achieving those purposes; they should go no further than absolutely necessary; they must be proportionate; they must not lead to discrimination, etc. Furthermore, anyone who believes his or her fundamental rights are infringed must have recourse to the courts. In the question of whether or not specific restrictions and curtailments are legitimate, the burden of proof lies with the state. The state must credibly demonstrate that its planned measures remain within the bounds of the relevant criteria. In case of doubt, freedom takes precedence.
Satisfying this burden of proof might often be an onerous task. Security policymakers might sometimes wish that security organizations had greater powers of discretion, without having to bother with judicial approval and oversight committees. But precisely these constraints under the rule of law help to ensure that security policy measures focus on the real dangers. Experience tells us that especially in times of crisis, politicians are tempted to make a show of strength with symbolic legislation, which has a tendency to be excessive. A current example is President Trump’s travel ban on people from selected Muslim countries. The national security benefit of this drastic policy is – to put it mildly – doubtful; the criteria for choosing the countries are unclear. The discriminatory intention is completely obvious and has provoked plenty of resentment. Another negative example is the “burkini bans” that various French coastal towns issued in the wake of the dreadful terror attack in Nice in the summer of 2016. Quite understandably, a population in shock might demand its government take decisive action. But it is completely unfathomable how imposing humiliating coercive measures on Muslim women who are out walking on a public beach wearing a jacket and headscarf (not even covering their faces!) is supposed to prevent terrorism and improve the security situation. Evidently, actions of this kind are liable to cause social divisions and alienate many Muslims – the French Court of State also declared the bans unlawful, and overturned them.
In authoritarian systems, as is well known, the security organizations can do more or less whatever they want, without constitutional bodies to hold them back. In countries such as Egypt, Russia, and Turkey, for example, constitutional checks and balances – and legal remedies – remain largely ineffective. Usually the result is anything but an increase in security; instead there is a climate of mistrust, making fertile ground for conspiracy theories. In contrast, liberal states governed by the rule of law deliver more solid results – including security. By taking the trouble to provide specific justifications for curtailments of civil liberties, by focusing on what is strictly necessary, and by accepting oversight and review, they foster trust. Political trust, which in turn derives from transparent adherence to the rule of law, is the most important capital – including for security politics.
The prohibition of torture as a test case
While states have a possibility to restrict certain human rights, provided that the criteria defined for such restrictions are fully satisfied, some human rights norms are “absolute.” These include the prohibition of torture and other cruel, inhumane, or degrading treatment or punishment. Like the prohibition of slavery, the prohibition of torture represents a “red line” that must never be crossed. At this point, all trade-offs and restrictions with regard to civil liberties reach their limit. The United Nations Convention against Torture is unequivocal: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture” (Article 2, Paragraph 2).
Let’s first of all be clear about what torture means. Jörg Splett defines torture as the forcible “removal of free will [...] while consciousness is maintained.”2 Thus, the defining characteristic of the torture situation is not simply that the victim’s free will is overridden. In addition, the victim consciously experiences this breaking of their will, and it is intended that they should do so. The victim must not fall unconscious, but rather is kept conscious with the same violence that breaks their will. In this way, they are forced to witness their own total reification, as they become a completely manipulable bundle of pain, fear, and shame. And precisely this is designed to break the prisoner down. Torture survivor Jean Améry expresses this with the words: “But only in torture does the transformation of the person into flesh become complete. [...Y]elling out in pain, awaiting no help, capable of no resistance, the tortured person is only a body, and nothing else beside that.”3 This total objectification of the self, which the victim is intended to experience while fully conscious, is what makes torture so perfidious. It not only violates the human right to demand respect for human dignity, but systematically, intentionally, and completely negates it. Based in part on Améry’s reports, Werner Maihofer describes torture as a break with civilization: “The functionary of an authoritarian system, who strikes me arbitrarily and at will, does not simply violate my body, he tears up the social contract between us – affecting himself just as much as others. When a state of civilization prevails between people, all behaviour between human beings, whatever their social role or position, must remain within the boundaries of this social contract.”4 It is an ultimate act of humiliation, which a state governed by the rule of law cannot and must never commit.
Restrictions on human rights always take the form of an imposition. Some such impositions, however, can be justified to the persons concerned. To cite a comparatively trivial example, cumbersome controls at airports mean an intrusion on privacy, but airline passengers usually do not perceive these controls to be humiliating, provided they can see that attempts are made to explain and limit the inconvenience, and prevent discrimination. Ultimately the criteria for restricting human rights and civil liberties follow this pattern, although the legal interpretation is more complex. In any case, there needs to be at least a hypothetical possibility of offering a reasonable justification for the impositions to the persons affected by them. (Whether they agree is another matter.) But the “imposition” of torture goes beyond any possible justification, because the torture victim’s capacity as a free-willed human being is completely negated. Torture in this respect is structurally similar to slavery, which of course is also totally prohibited. You cannot explain to a human being – even hypothetically – that they can be traded and sold like cattle. Slavery violates the basic requirements of human communication. The same goes for torture, which is therefore beyond any possible justification even in extreme situations. Thus, the fact that the right to freedom from torture, in all relevant international and regional human rights conventions, is formulated as being a non-derogable right and above any justifiable restriction, is merely consequential; this necessarily follows from the logic of the rule of law as such.
Those who advocate a relaxation of the prohibition of torture often refer to “ticking bomb” scenarios: we should imagine, for example, that a suspected terrorist has planted a bomb somewhere, and that thousands of people’s lives are at risk. In such extreme cases, so the argument goes, torture should be allowed if absolutely necessary because the danger is so severe. When it comes to the rule of law, however, it would be fatal if the state permitted exceptions to the prohibition of torture. The logic of the argument involving extreme situations carries the risk that an exception granted for one particular situation will spread to other similar but marginally less extreme cases – for which a further loosening of the prohibition of torture then comes into consideration. Until finally all the dams break. There’s more to it than that, however. Once a state allows torture in particular extreme cases, it will no longer be able to build dams of any kind. As explained earlier, torture is the total negation of human dignity, whereas the rule of law is based on exactly this respect for this dignity. Anyone who disregards this red line will likely find it difficult to formulate any credible limit anywhere for what is permitted. The fight against terrorism then threatens to descend into a “race to the bottom,” i.e. a contest of barbarism, in which there is literally no holding back. Torture signifies a break with civilization that erodes the foundations of the rule of law as a whole.
Maintaining the rule of law – particularly in the context of counterterrorism – is not only essential for humanitarian reasons but also sensible for the sake of security. Only a state that is committed to the rule of law can convincingly enforce it. The rule of law is a prerequisite for confidence in the state’s actions, as it creates trust. Upholding the rule of law, particularly the basic freedoms and civil liberties, is a way of ensuring that security policy measures keep the focus strictly on fighting real dangers. This helps to prevent merely symbolic and/or potentially divisive policies. However much pragmatic elasticity it permits, the rule of law consists first and foremost in definitive “red lines” which must never be crossed. Strict observance of the prohibition of torture therefore remains the test case for security politics based on the rule of law.
1 Article 1, Sentence 1 of the Universal Declaration of Human Rights.
2 Splett, Jörg (2006): “Theo-Anthropologie. Ein Antwortversuch.” In: Hans-Ludwig Ollig (ed.): Theo-Anthropologie. Jörg Splett zu Ehren. Würzburg, pp. 105–113, p. 108 (translated from the German).
3 Améry, Jean (1980): At the Mind’s Limits: Contemplations by a Survivor of Auschwitz and Its Realities. Translated by Sidney Rosenfeld and Stella P. Rosenfeld, Indiana University Press, p. 33.
4 Werner Maihofer (1967): Die Würde des Menschen. Untersuchungen zu Artikel 1 des Grundgesetzes für die Bundesrepublik Deutschland. Hanover, p. 23 (translated from the German).
Professor Heiner Bielefeldt, born 1958, comes from the Rhineland region of Germany. After studying philosophy, theology, and history at Bonn and Tübingen, he taught at various universities in Germany and other countries. He gained his doctorate and habilitation in philosophy. From 2003 to 2009, Bielefeldt was the director of the German Institute for Human Rights in Berlin. Since 2009 he has held the Chair in Human Rights and Human Rights Politics at the University of Erlangen-Nuremberg. Concurrently from 2010 to 2016 he served as UN Special Rapporteur on freedom of religion or belief.