"Torture" in the Dock

Policy Review, Dec 2008/Jan 2009 by Rosenthal, John

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 2006 UN report, likewise cited echr jurisprudence.9

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.10 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.11

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.