Torture and the fight against terrorism

Abstract

Through tragic events, such as the terrorist attacks of September 11, 2001 or the kidnapping case of Jakob von Metzler the absolute prohibition against torture is increasingly challenged, even in steadfast rule-of-law states. This article deals with this development and discusses the different approaches relativizing the absolute ban on torture. As a historical introduction this article starts with a brief overview of the history of interrogational torture. In a second part the article focuses on the ban on torture in international law and the quality of this prohibition as an absolute and non-derogable provision. In a next step the article analyses (the implementation of) the prohibition on torture in German and US law. In a last step the different models challenging the absoluteness of the prohibition (the ex ante authorisation and the ex post justification) are analysed and critically discussed concluding that the ban on torture, cruel, inhuman and degrading treatment should not be relativized on an ex ante level but arguing–in extreme cases–for the possibility of an excuse as regards to a criminal sanction for the interrogator breaking the absolute prohibition.