The justification of torture. Some Remarks on Alan M. Dershowitz's Why Terrorism Works - [Alan M. Dershowitz, Why Terrorism Works – Understanding the Threat, Responding to the Challenge; Yale University Press, New Haven and London, 2002, 271 p.]

Markus Wagner

doi:10.1017/S2071832200016175

¹ Economist, 11 January 2003, 11 and 20 et seq.; Dana Priest and Barton Gellman, U.S. Decries Abuse but Defends Interrogations; “Stress and Duress” Tactics Used on Terrorism Suspects Held in Secret Overseas Facilities, The Washington Post, 26 December 2002, A 01; Alan Cooperman, CIA Interrogation Under Fire; Human Rights Groups Say Techniques Could Be Torture, The Washington Post, 28 December 2002, A 09.Google Scholar

² The deputy police chief, Daschner, threatened torture in order to save the life of an 11-year old who had earlier on been abducted by the accused and whose whereabouts and health status at that point were unknown. Police later on found the victim dead. At the time Daschner threatened to “inflict pain, under medical supervision and subject to prior warning” to be applied by a martial arts trainer without however causing lasting injury. However, at that point, the child had already died. Immediately afterwards, Daschner filed a report outlining his action with the prosecutorial office. See Koch: Daschners Verhalten “menschlich sehr verständlich” – Politische Diskussion über die Legitimität der Folter bei Polizeiverhören / Der Fall Magnus G., Frankfurter Allgemeine Zeitung, 24.02.2003, S. 4; Folterdrohung mit Folgen, Süddeutsche Zeitung, 28.02.2003, S. 6; Die Folter-Debatte – Politiker kommentieren die Äußerungen von Richter Geert Mackenroth, Die Welt, 22.02.2003, S. 3; Peter Finn, Police Torture Threat Sparks Painful Debate in Germany, The Washington Post, 8 March 2003, A19; John Hooper, Germans wrestle with rights and wrongs of torture, The Guardian, 27 February 2003, 18. See also Interview with Otto Schily, Federal Minister of the Interior, “Druck ja, Folter nein”, Die Zeit, 13 March 2003, 10; Winfried Brugger, Das andere Auge, Frankfurter Allgemeine Zeitung, 10 March 2003, 8.Google Scholar

³ A similar stance is already promulgated by Alan Dershowitz, Commentary: Is There a Torturous Road to Justice? Los Angeles Times, 8 November 2001, B19.Google Scholar

⁴ Dershowitz does not attempt to define terrorism in the text of the book, but gives guidelines for such a definition on 230.Google Scholar

⁵ These methods include gaining control of the media, monitoring of communications, criminalizing advocacy, restricting movement, carrying out collective punishment, targeted assassinations, preemptive attacks, massive retaliations, secret military trials and torturing suspects.Google Scholar

⁶ Dershowitz, 2; a similar remark is made on 12, where Dershowitz states that “international terrorism is becoming the defining issue of our age.”Google Scholar

⁷ Dershowitz, 2.Google Scholar

⁸ Dershowitz, 2. The assumption that trying to understand the root causes of terrorism is the wrong approach is further elaborated on.24 et seq. For an early analysis of international terrorism, see Alex P. Schmid, Political Terrorism, 1983, 160 et seq.Google Scholar

⁹ Dershowitz, 6 and 10.Google Scholar

¹⁰ Dershowitz, 11.Google Scholar

¹¹ Dershowitz, 11.Google Scholar

¹² Dershowitz, e.g. 2 and 185.Google Scholar

¹³ Dershowitz, 168.Google Scholar

¹⁴ Dershowitz, 13.Google Scholar

¹⁵ Brugger, Winfried, May Government Ever Use Torture? Two Responses From German Law, American Journal of Comparative Law 48 (2000), 661 et seq. Commission of Inquiry Into the Methods of Investigation of the General Security Service Regarding Hostile Terrorist Activity (1987), excerpted in Israel Law Review 23 (1989), 146 (164 et seq.).Google Scholar

¹⁶ Cohen, Barak, Democracy and the Mis-Rule of Law: The Israeli Legal System's Failure to Prevent Torture in the Occupied Territories, Indiana International and Comparative Law Review 12 (2001), 75 et seq.; Emanuel Gross, Democracy in the War Against Terrorism – The Israeli Experience, Loyola of Los Angeles Law Review 35 (2002), 1161 (1170 et seq.); Catherine M. Grosso, International Law in the Domestic Arena: The Case of Torture in Israel, Iowa Law Review 86 (2000), 205 et seq.; John T. Parry and Welsh S. White, Interrogating Suspected Terrorists: Should Torture Be an Option, University of Pittsburgh Law Review 63 (2002), 743 et seq.Google Scholar

¹⁷ Karsh, Efraim, Terrorism, the growth industry, The Sunday Telegraph, 3 November 2002, 12.Google Scholar

¹⁸ Dershowitz, 144.Google Scholar

¹⁹ Dershowitz, 166 et seq.Google Scholar

²⁰ Dershowitz, 199 et seq.Google Scholar

²¹ Dershowitz, 204.Google Scholar

²² Dershowitz, 206.Google Scholar

²³ Dershowitz, 152.Google Scholar

²⁴ For a report on the trial of Aussaresses, see Keith B. Richburg, General Is Convicted for Trying to Justify War Crimes, Washington Post, 26 January 2002, A24; Jon Henley, French general fined for army torture book, The Guardian, 26 January 2002, 15. For the war between Algeria and France in general, see Rita Maran, Torture – The Role of Ideology in the French-Algerian War, 1989.Google Scholar

²⁵ It should be noted that the acts taking place by radical Palestinians are to be condemned in the strongest sense and that terrorism is not a method that should lead to any results at any point in time.Google Scholar

²⁶ E.g. Cassese, Antonio, Terrorism, Politics and the Law, 1988; Louis Rene Beres, “The Legal Meaning of Terrorism for the Military Commander”, Connecticut Journal of International Law, v. 11 (1995), 3; W. Michael Reisman, “International Legal Responses to Terrorism”, Houston Journal of International Law, v. 22 (1999), 9 et seq.Google Scholar

²⁷ E.g. Evans, Malcolm D. and Morgan, Rod, Preventing Torture – a Study of the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, 1998; Edward Peters, Torture, 1996; Antonio Cassese (ed.), The International Fight Against Torture – La lutte internationale contre la torture, 1991; Eyal Benvenisti, The Role of National Courts in Preventing Torture of Suspected Terrorists, European Journal of International Law 8 (1997), 596 et seq.; Pnina Baruh Sharvit, The Definition of Torture in the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment, Israel Yearbook on Human Rights 23 (1993), 147 et seq. Even more surprisingly, Dershowitz does not mention the ruling of the European Court of Human Rights in the case between Ireland and the United Kingdom, 25 European Court of Human Rights (ser. A), 59 (1978).Google Scholar

²⁸ Mundis, Daryl A., The Use of Military Commission to Prosecute Individuals Accuses of Terrorist Acts, American Journal of International Law 96 (2002), 320 et seq.; Sean D. Murphy, Decision Not To Regard Persons Detained in Afghanistan as POWs, American Journal of International Law 96 (2002), 475 et seq.; Kenneth Anderson, What to Do with Bin Laden and Al Qaeda Terrorists?: A Qualified Defense of Military Commissions and United States Policy on Detainees at Guantanamo Bay Naval Base, Harvard Journal of Law and Public Policy 25 (2002), 591 et seq.; Jordan J. Paust, Antiterrorism Military Commissions: The Ad Hoc DoD Rules of Procedure, Michigan Journal of International Law 23 (2002), 677 et seq.; Neal K. Katyal and Laurence H. Tribe, Waging War, Deciding Guilt: Trying the Military Tribunals, Yale Law Journal 111 (2002), 1159; Yoram Dinstein, Humanitarian Law on the Conflict in Afghanistan, Proceedings of the Ninety-Sixth Annual Meeting of the American Society of International Law 96 (2002), 23 et seq.Google Scholar

²⁹ Dershowitz, 221. Similarly, the term war is used indiscriminately on several occasions, e.g. 10 and 217. While this might be acceptable in a general debate, it seems inappropriate in a book produced by academic and claiming to write an academic book.Google Scholar

³⁰ Langbein, John H., Torture and the Law of Proof, 1977.Google Scholar

³¹ Langbein, John H., Torture and the Law of Proof, 1977, 90. Langbein himself relies on Bacon.Google Scholar

³² Langbein, John H., Torture and the Law of Proof, 1977, 90. Langbein continues by stating that the reason for the relative scarcity of evidentiary use was that “a jury could convict on scant evidence, and in treason cases the pressure to convict was intense.”Google Scholar

³³ Dershowitz, 50.Google Scholar

³⁴ Dershowitz, 102.Google Scholar

³⁵ Dershowitz, 137.Google Scholar

³⁶ Dershowitz, 138.Google Scholar

³⁷ Dershowitz, 185.Google Scholar

³⁸ Dershowitz, 85.Google Scholar

³⁹ Stewart, James, A Special Report by the Montreal Star, The FLQ: Seven Years of Terrorism, 1970.Google Scholar

⁴⁰ Walter, Christian, Vöneky, Silja, Röben, Volker, Schorkopf, Frank (eds.), Terrorism as a Challenge for National and International Law – Security versus Liberty?, 2003 (forthcoming).Google Scholar

⁴¹ 1465 U.N.T.S. 85, 10 December 1984. The treaty entered into force on 26 June 1987 and has been ratified by 132 countries as of March 2003.Google Scholar

⁴² Dershowitz, 135-136 and 138.Google Scholar

⁴³ Article 1 (1) of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment reads: “For the purposes of this Convention, torture 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.”Google Scholar

⁴⁴ Rodley, N.S., The Treatment of Prisoners under International Law, 2^nd ed., 1999, 74; Edward Peters, Torture, 1996, 62; Rosalyn Higgins, Derogations under Human Rights Treaties, British Yearbook of International Law 48 (1976-77), 281 (282), referring to the norm under customary international law; Jordan J. Paust et al., International Criminal Law – Cases and Materials, 2^nd ed., 2000, 13; Restatement (Third) of Foreign Relations Law of the United States, § 702 comment n; Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d 929 (941); Siderman de Blake v. Republic of Argentina, 965 F.2d 699 (714).Google Scholar

⁴⁵ 1155 U.N.T.S. 331, 23 May 1969. The treaty entered into force on 27 January 1980.Google Scholar

⁴⁶ 131 U.N.T.S. 206, 17 December 1979. The treaty entered into force on 3 June 1983 and currently has 118 State Parties. The text of its Article 12 reads in its entirety: “In so far as the Geneva Conventions of 1949 for the protection of war victims or the Additional Protocols to those Conventions are applicable to a particular act of hostage-taking, and in so far as States Parties to this Convention are bound under those conventions to prosecute or hand over the hostage-taker, the present Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts as defined in the Geneva Conventions of 1949 and the Protocols thereto, including armed conflicts mentioned in article 1, paragraph 4, of Additional Protocol I of 1977, in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self- determination, as enshrined in the Charter of the United Nations and the Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.”Google Scholar

⁴⁷ Dershowitz, 54. Emphasis in the original text.Google Scholar

⁴⁸ Dershowitz, 54.Google Scholar

⁴⁹ See Article 18 (1) of the International Convention Against the Taking of Hostages.Google Scholar

⁵⁰ Robert Rosenstock, International Convention Against the Taking of Hostages: Another International Community Step Against Terrorism, Denver Journal of International Law and Policy 9 (1980), 169 (184); Malvina Halberstam, Challenges to International Law: Terrorism, George Mason University Law Review 9 (1986), 12 (18).Google Scholar

⁵¹ MacWilson, Alastair C., Terrorism, Hostage-Taking, 1992, 189 et seq.Google Scholar

⁵² 34 UN GAOR C.6 (14^th mtg.) 16, UN Doc. A/C.6/34/SR.14 (1979).Google Scholar

⁵³ Dershowitz, 150.Google Scholar

⁵⁴ See e.g. Gross, Emanuel, Democracy in the War Against Terrorism – The Israeli Experience, Loyola of Los Angeles Law Review 35 (2002), 1161 (1170 et seq.). Bernhard Schlink, “Darf der Staat foltern?” – Eine Podiumsdiskussion, 28 June 2001, <www.humboldt-forum-recht.de/4-2002/index.html> (20 March 2003).+(20+March+2003).>Google Scholar

⁵⁵ See interview with Schily, Otto, Federal Minister of the Interior, “Druck ja, Folter nein”, Die Zeit, 13 March 2003, 10. Dershowitz, 193 et seq., further claims that the restrictions on civil liberties after September 11, 2001 are mild compared to those imposed upon certain parts of the population in US history. This argument – intentionally – leaves aside the issue of the death penalty.Google Scholar

⁵⁶ Dershowitz, 149 et seq. Dershowitz himself seemed to have the same concerns in an earlier publication which dealt with the Landau Commission Report and the defense of necessity. Alan Dershowitz, Is It Necessary to Apply “Physical Pressure” to Terrorists – And to Lie About It?, Israel Law Review 23 (1989), 192 (195).Google Scholar

⁵⁷ Dershowitz, Alan, Commentary: Is There a Torturous Road to Justice? Los Angeles Times, 8 November 2001, B19.Google Scholar

⁵⁸ Dershowitz, 184.Google Scholar

⁵⁹ Dershowitz, 141.Google Scholar

⁶⁰ Dershowitz, 159.Google Scholar

⁶¹ Dershowitz, 216.Google Scholar

⁶² Black, H., Black's Law Dictionary, 6^th ed., 1990, 1436.Google Scholar

⁶³ Armstrong, S., “Special Notes on Bill C-36: Does Bill C-36 Need a Sunset Clause?”, University of Toronto Faculty of Law Review 60 (2002), 73 et seq. (74).Google Scholar

⁶⁴ McLellan, A., “Antiterrorism Act – Re your editorial The Antiterrorism Law Needs a Sunset Clause”, Globe and Mail, 25 October 2001, A18. J. Tibbetts, “No sunset clause on anti-terror law, Chretien says: PM puts an end to debate over possible legislated review of new police powers”, Vancouver Sun, 22 October 2001, A7.Google Scholar

⁶⁵ Special Senate Committee on the Subject Matter of Bill C-36, First Report, 1 November 2001, <www.parl.gc.ca/37/1/parlbus/chambus/senate/JOUR-E/066ap_2001-11-01-e.htm> (20 March 2003).+(20+March+2003).>Google Scholar

⁶⁶ Dershowitz, 218.Google Scholar

⁶⁷ Dershowitz, 226. Indeed, on 207 Dershowitz makes allusions to various degrees of proportionality depending on the circumstances of the case and the level of intrusion.Google Scholar

⁶⁸ Abel, David, Dershowitz Makes Case for Antiterror Measures, The Boston Globe, 6 November 2002, C 8.Google Scholar

⁶⁹ Dershowitz, 188.Google Scholar

⁷⁰ HCJ 5100/94, Public Committee Against Torture in Israel v. Government of Israel, P.D. 53(4), 817 (835). The decision is available at <www.derechos.org/human-rights/mena/doc/torture.html> (20 March 2003).+(20+March+2003).>Google Scholar

⁷¹ Dershowitz, 3.Google Scholar

Article contents

The justification of torture. Some Remarks on Alan M. Dershowitz's Why Terrorism Works - [Alan M. Dershowitz, Why Terrorism Works – Understanding the Threat, Responding to the Challenge; Yale University Press, New Haven and London, 2002, 271 p.]

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Article contents

The justification of torture. Some Remarks on Alan M. Dershowitz's Why Terrorism Works - [Alan M. Dershowitz, Why Terrorism Works – Understanding the Threat, Responding to the Challenge; Yale University Press, New Haven and London, 2002, 271 p.]

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