Torture and the use of information in countering terrorism

ECCHR-Report, October 2011

ECCHR (ed.)

This report, which is an excerpt of ECCHR-publication “Folter und die Verwendung von Informationen in der Terrorismusbekämpfung” analyzes the three cases selected for examination by the BND Committee of Inquiry (1. Committee of Inquiry, 16th legislative period). The cases in question are: Murat Kurnaz, detained in Guantánamo; Mohammed Zammar, tortured and detained to date in Syria; and Khaled El Masri, abducted and tortured in Afghanistan. To varying extents, German security forces were involved in each of these cases. All three men were tortured and treated inhumanely during their imprisonment. German intelligence agents exchanged information about the men with other intelligence agencies, interrogated the prisoners on location, and examined the obtained information in Germany.
 
Murat Kurnaz was arrested in Pakistan in December 2001. Later, he was taken to Guantánamo. While imprisoned, he was subjected to torture and grievous mistreatment. He was interrogated by German agents on at least one occasion. In 2006, Kurnaz was permitted to return to Germany. No founded accusations of terrorist activity were ever brought against him in a court of law.
 
At the time of writing, Mohammed Zammar remains imprisoned in Syria. He was arrested in October 2001 in Morocco on the basis of information that had been supplied in part by German authorities. Following his arrest, he was taken to Syria, where he was tortured and sentenced. While detained in Syria, he was interrogated by German agents.
 
Khaled El Masri was abducted on the Albanian-Macedonian border in December 2003. He later found himself in a secret prison in Afghanistan. He was severely tortured during his imprisonment. German authorities exchanged information about him with the USA.  
 
The BND Committee of Inquiry began in April 2006. It invited numerous witnesses to give evidence and examined extensive documentation. Its work was hampered, however, by frequent refusals to release decisive files and information for examination. The German Constitutional Court has since judged such refusals to be unconstitutional. Ultimately, the work of the committee remained superficial, and many pivotal questions were never asked. Nonetheless, the findings of the committee make clear that numerous international agreements and conventions have been violated, in particular the absolute prohibition of torture. It is disappointing, therefore, that instead of drawing out the clear conclusions from the committee’s report and bringing those responsible to justice, the German Prosecution Service has failed to initiate any investigations against those suspected of participating in the crimes. Such failures are particularly damaging for the torture survivors, who continue to wait for adequate compensation or an apology for the behavior of German officials.
 
It did not have to be this way. As evidenced by the Canadian investigative commission tasked to examine the Maher Arar case, a different approach is possible. Like Zammar, Arar was taken to Syria. The Canadian authorities, however, secured Arar’s release in little more than a year. The Canadian investigative commission not only identified the mistakes made by Canadian authorities that contributed to Arar’s abduction and torture, it also awarded him corresponding compensation.
 
The following sections of the full report discuss the legal boundaries which should be observed whenever German authorities communicate intelligence or prosecutorial information to other states. The full report also asks whether, and to what extent, German officials are legally prohibited from conducting interrogations in foreign prisons that are reknowned for their use of torture. The ultimate issue is one which has returned repeatedly in recent years: how should authorities deal with information which has allegedly been extracted under torture, but which is potentially relevant to the work of German agencies and courts?
 
The full report concludes that German authorities and courts have violated the absolute ban on torture. In doing so, they have contravened domestic and international law. Despite a lack of comprehensive investigations, it appears likely that the information transferred by German authorities contributed to the overseas detention, mistreatment and sentencing of German citizens. By interrogating detainees in prisons notorious for their use of torture, and then exchanging information with authorities working there, German authorities tacitly approved these brutal practices. Such behavior undermines the absolute prohibition of torture. The use of information obtained through torture constitutes a further violation. At present, it should be noted, information is only rejected from courts if it can be proved concretely that it was extracted under illegal conditions. For both victims and civil society, such evidence is very difficult to obtain.
 
If German authorities wish to take the absolute ban on torture seriously, then they must refrain from transferring information in cases where torture is suspected. In the event that information transfer is considered unavoidable, it must be kept to an absolute minimum. German officials must distance themselves from interrogations conducted in states and institutions known for their use of torture. Such moves may require a fundamental change of mindset within German institutions. Aiding torture, it should be remembered, is also a criminal offense. If German officials are suspected of facilitating torture or brutal, degrading and inhumane treatment, the German Prosecution Service is obliged to investigate.

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