Max Planck Institute for Foreign and International Criminal Law

The fight against terrorism and society’s need for security know no bounds, not even the prohibition against torture or "milder" means of promoting interrogation. In light of the fact that torture was an established, legitimate component of judicial procedure from antiquity up until the modern period, the absolute prohibition of torture on both the international and national levels constitutes a fundamental achievement of modern human rights protection and is considered the epitome of rule-of-law government. However, the discrepancy between the prohibition in international law and actual state practice is greater for torture than it is for any other human right. Through tragic events, such as the terrorist attacks of September 11, 2001 or the kidnapping case of Jakob von Metzler, the necessity and legitimacy of the absolute prohibition against torture is increasingly challenged, even in steadfast rule-of-law states. The question of how much human dignity modern society can still "afford" in interrogation situations is thus a task that urgently needs to be addressed in a democratic rule-of-law state.

The focus of this research project is on the prohibition against torture as it appears in international law and in the legal systems of Germany, England and Wales, and the USA. Building on these prohibitions, the project also contains an analysis of the legal provisions regulating the use of coercion in the course of interrogation in these countries. Coercion is given the broadest definition possible and thus covers psychological as well as physical impacts on the interrogated person. A distinction is made between interrogations in which information is sought for repressive and those in which information is sought for preventive purposes.

The first goal of the project is to perform a comprehensive analysis of the phenomenon of torture in its legal-historical and actual manifestations. The second goal is to identify the absolute and relative limits on the permissible use of coercion in interrogation: The absolute limit on the impact on the interrogee – irrespective of the purpose of the interrogation and the specific facts of the case – will be pinpointed. The relative limits will show whether or where different kinds of coercive impacts are permissible – depending upon the repressive or preventive goals of the interrogation and the specific facts of the case. The development of a legal policy recommendation on how best to address the problem of torture in a democratic, rule-of-law state is an additional goal.

From a methodological perspective, the first section of the study presents a comprehensive overview of the phenomenon of torture – its historical development and current manifestations – through the evaluation of documents, literature, and surveys. Subsequently, the individual domestic and international rules are analyzed in light of legislation, literature, and case law. In a comparative law section, the approaches of the various legal systems are examined for their similarities and differences as well as their consistency with international requirements. Following this, the absolute and relative limits on the use of coercion in interrogation are identified in a critical and evaluative examination of these results. The last section consists of a discussion of the solutions to the problem of torture that have been recommended to date in the literature and in practice so that, in conclusion, a legal policy response can be formulated.