The Protection of Human Dignity in Interrogations: May Interrogative Torture Ever Be Tolerated? Reflections in Light of Recent German and Israeli Experiences

The issue of whether interrogative torture may ever be tolerated has been discussed explicitly by both the Israeli High Court of Justice and the Frankfurt Regional Court in Germany. The Israeli court ruling related to the use of interrogative torture in the war on terror; the case brought before the German court was one of routine police work. This paper analyzes the two rulings in depth and offers a comparative reading of the rulings. The comparative analysis reveals that, despite some fundamental differences, the Israeli and German rulings should both be seen as an attempt to uphold the ban on torture, on the one hand, and yet to grant fair treatment to an individual interrogator who used, or threatened to use, force in order to save innocent lives, on the other. While determining the lessons to be learned from the German and Israeli experiences, this paper raises doubts as to whether it is possible to keep the ban on torture intact while either excusing the individual interrogator (Israel) or significantly mitigating his punishment (Germany). The paper further suggests that, in order to provide a real barrier against the practice of interrogative torture, the evidence resulting from such interrogations should be inadmissible in any criminal proceedings.