Human Dignity and Criminal Law: Würzburg Conference on Human Dignity, Human Rights and Criminal Law in Israel and Germany, July 20–22, 2015 [1 ed.] 9783428553655, 9783428153657

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Schriften zum Strafrechtsvergleich Band 4

Human Dignity and Criminal Law Würzburg Conference on Human Dignity, Human Rights and Criminal Law in Israel and Germany, July 20 – 22, 2015

Edited by

Eric Hilgendorf and Mordechai Kremnitzer

Duncker & Humblot · Berlin

ERIC HILGENDORF / MORDECHAI KREMNITZER (Eds.)

Human Dignity and Criminal Law

Schriften zum Strafrechtsvergleich Herausgegeben von Prof. Dr. Dr. Eric Hilgendorf, Würzburg und Prof. Dr. Brian Valerius, Bayreuth

Band 4

Human Dignity and Criminal Law Würzburg Conference on Human Dignity, Human Rights and Criminal Law in Israel and Germany, July 20 – 22, 2015

Edited by

Eric Hilgendorf and Mordechai Kremnitzer

Duncker & Humblot · Berlin

Bibliographic information of the German national library The German national library registers this publication in the German national bibliography; specified bibliographic data are retrievable on the Internet about http://dnb.d-nb.de.

All rights reserved. No part of this book may be reproduced, translated, or utilized in any form or by any means, electronic or mechanical, without the expressed written consent of the publisher. © 2018 Duncker & Humblot GmbH, Berlin Typesetting: Konrad Triltsch GmbH, Ochsenfurt Printing: buchbücher.de gmbh, Birkach Printed in Germany ISSN 2364-8155 ISBN 978-3-428-15365-7 (Print) ISBN 978-3-428-55365-5 (E-Book) ISBN 978-3-428-85365-6 (Print & E-Book) Printed on no aging resistant (non-acid) paper according to ISO 9706

Internet: http://www.duncker-humblot.de

Foreword In 1952, four years after David Ben Gurion’s proclamation of the State of Israel on 14 May 1948, the German Federal Parliament resolved to send the new state reparations payments. Many Israelis, led by subsequent Prime Minister Menachem Begin, much of whose family had been murdered in the Holocaust, protested against any cooperation whatsoever with Germany. They demanded that no money be accepted from a “country of murderers”. Eventually, however, David Ben Gurion‘s pragmatic attitude prevailed and German compensation was accepted under the framework of the Luxembourg Agreement. Only thirteen years later, on 12 May 1965, Germany and Israel first established diplomatic relations. Since that time, the German-Israeli relationship has continued to evolve on a stable, positive basis. In the decades since then, organizations such as the German-Israeli Society (DIG) or the German-Israeli Foundation for Scientific Research and Development (GIF) have been working to build bridges between the two countries. More than 100 Israeli towns and cities maintain partnership agreements with German municipalities. Germany is regarded today as Israel’s most important friend in Europe and many Israelis, especially young Israelis, visit Germany every year, not in search of the past, but in order to get to know a country in the heart of the old continent which, despite its past, enjoys a high reputation around the world because of its wealth, its cosmopolitanism and its liberal democratic system of government. Currently, Germany has a population of about 100,000 Jews, and many Jewish communities are starting to reestablish normal Jewish life, as it was prior to the Holocaust. Unfortunately, in the last few years, shadows have been raised over the strong relationship between the two countries – the reason for this being, among other things, different views on the nature and extent of Israeli settlement policy in lands captured in 1967. With this lack of consensus on an important political issue in mind, the Jerusalem Report, expressing its concern, asked in March 2014: “Best friends forever? Germany remains Israel’s best friend in Europe, but could that be about to change?”1 Similarly, in Germany itself the German-Israeli friendship has been subjected to strains again and again in recent years. On 4 April 2012 Günther Grass published a poem in the Süddeutsche Zeitung entitled: “Was gesagt werden muss” (“What has to be said”), which attracted much attention and subsequently was the subject of intense, and in part downright hysterical, debate. Grass declared that Israel was a major threat to world peace. Even though the tone and content of the text by the 1

The Jerusalem Report, “Best friends forever?” March 24, 2014, p. 12.

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Foreword

Nobel Laureate came under considerable criticism, at the same time it expressed a widespread unease in Germany about certain aspects of Israel’s foreign policy, particularly its settlement policy. The treatment of Palestinians in the occupied territories by the Israelis has repeatedly been sharply criticized by leading German politicians. The most prominent recent example of such criticism is the speech by the former President of the European Parliament, Mr. Martin Schulz, before the Knesset on 12 February 2014. The two countries are united by a deeply felt commitment to “never again!”. But behind the many disagreements, frictions and misunderstandings, the fact is simply that Germany and Israel learned different lessons from the murder of more than six million Jews during the Nazi dictatorship. “Never again perpetrators!”. This phrase represents Germany’s new approach, having made a complete break with its militaristic past, and stressing its understanding of itself as a democratic pluralist state, in which minority rights and tolerance are central values. This markedly peace-loving attitude has undoubtedly been facilitated by Germany’s geographic location in one of the most pacified regions of the world. The situation has been quite different for Israel. The founding of the new state, which from the beginning was surrounded by states calling for its destruction, has been accomplished under the motto: “Never again (passive) victims!”. That is why Israeli politicians across the political spectrum all stress the need for their country to maintain its military strength, going at times to great lengths to defend their constitutional democracy, sometimes indeed going too far in the minds of their German friends and allies. The German government regularly emphasizes Israel’s right to defend itself, at the same time also noting the need for Israel’s response to remain proportional. How exactly should this proportionality be understood? Where does Israel’s right of self-defense begin and where might it overstep accepted boundaries of human rights and human dignity? There are, however, other aspects of Israel’s special situation which apparently seem increasingly difficult to understand in Germany. One of these issues is Israel’s dual character as a constitutional democracy while at the same time being a Jewish state, in which religion plays a much larger role than in Germany, although the percentage of Israel’s population which is non-religious is very high. Thus to this day Israel has not yet concluded a final written constitution. This is because religiously fundamentalist Orthodox Jewish political parties have repeatedly prevented a consensus in the Knesset on any other “higher law” than Jewish religious law founded on the Torah. There are also idiosyncrasies in the current Jewish identity which can be traced back to religious traditions. In 2012, a decision of the District Court of Cologne (Landgericht Köln, Germany) created a sensation when it held that religiously motivated circumcision of a male child constituted the offense of bodily harm under the German Criminal Code. Without going into the details of the case here, it must be noted that at least in discussions among lawyers, one factor received very little attention: circumcision remains today a central aspect of Jewish identity;

Foreword

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it is hardly called into question anywhere in the Jewish community, not even among academics raised in the secular, pluralist tradition. If a criminally sanctioned prohibition of circumcision existed in Germany, most Jews would either be forced to illegally circumvent the ban or they would be forced to emigrate. This illustrates the fact that a conflict-free, harmonious relationship between Germans and Israelis, or respectively, between German society and German Jews, who have once again become resident here, is not self-evident. Today, when the big political issues in the German-Israeli relationship, which dominated in the past, have become less important, the lines of conflict increasingly involve legal questions and problems. The aim of this book, the papers of which were originally presented during a conference in Würzburg, Germany, July 20. – 22., 2015, is to aid in significantly expanding German-Israel cooperation in law, an area previously neglected, taking into account the various issues discussed above. The importance of human dignity and human rights in the two different legal systems is explored, and the impact of these principles on lawmaking within the respective legal systems is investigated. If a humane legal system is defined as a legal system which is always and in all its parts oriented toward respecting human dignity and human rights, then the project presented here could be subsumed in one central question: to what extent and under what conditions would a humane legal system be possible? Israel’s legal system is often characterized as a “mixed legal system” combining elements from the Common Law legal tradition, dating back to the mandate period in which Great Britain administered the then Palestine (1922 – 1948), together with elements from the Civil Law legal tradition, of which Germany is a member, which were brought there by immigrants from Central Europe in the period of Israel’s initial founding. This mixing of systems can even be found in some sub-areas of law. For example in the area of criminal law, the law on the elements of specific offenses has been strongly influenced by English law, although the decisions of English courts have not been binding on Israeli courts since the early 1970s, whereas the general framework of the criminal law exhibits the increasing influence of German law. In the area of criminal procedure, the crucial differences cannot be traced back to the geographic origins of particular sub-areas of the law, but rather in the intensity which internal and external threats to Israel’s existence have compelled it to defend its constitutional democracy with means, the compatibility of which with the principle of the rule of law sometimes seems questionable. Thus Israel has, in the past, been repeatedly accused of torturing prisoners. In spite of Israel’s ratification of the UN Convention against Torture in 1991, as well as the landmark decision of the Israel Supreme Court in 1999, which strictly prohibited the use of torture, the renewed use of massive physical pressure by the Israeli security services has been a more or less open (and openly acknowledged) secret since, at the very latest, the beginning of the second intifada in 2000. Different social conditions and acute foreign policy considerations are apparently crucial determining factors here for different understandings of the extent to which pragmatic measures are allowable by a

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Foreword

state espousing the principle of the rule of law and thus represent an exciting field for future research. Large differences also exist between Germany and Israel in their respective understandings of the concept of human dignity: In Germany human dignity is designed to be as strong as possible, representing a “last bastion” against intolerable violations of an individual‘s intrinsic value as a human being – so that any infringement of the scope of protection of Art. 1 of the German Federal Constitution is illegal. It cannot ever be justified to balance human dignity against other constitutional rights, or against the fundamental rights or human rights of other persons. In contrast, human dignity in Israel is regulated by the (then highly controversial) 10th Basic Law, which, as previously stated, is not comparable with a written constitution in the sense the term would be understood in Germany. The exact definition of the term “human dignity” was left open, allowing the Israeli Supreme Court, in a much publicized decision on human dignity in 2002, to derive a number of concrete fundamental rights2 from this “catch-all” right. In contrast, parallels exist with regard to the human rights discourse in the two countries, although in Israel exposure to human rights issues plays a much larger role in legal education than it does in Germany. The problems discussed above make clear that both societies, although coming from very different starting points, have to deal with the same core issues. This, in our view, made for a fascinating starting point for a conference organized to look at these issues. The result of our efforts is this book. Our thanks go to all the authors who contributed to this volume, but also to Stefanie Schüchel, who was very helpful in organizing the publication, and to Roger Fabry, who translated many of the German articles into English and “polished up” the language of the other texts. Würzburg, Summer 2017

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Israeli Supreme Court, Judgment Regarding Selective Conscientious Objection to Military Service in the Occupied Territories, H.C. 7622/02, 30. Dezember 2002. On this subject, see also Mordechai Kremnitzer: “Human Dignity – an Israeli Perspective”, in: Hilgendorf (ed.): Menschenwürde und Demütigung. Die Menschenwürdekonzeption Avishai Margalits, Baden-Baden 2013, pp. 81 – 89.

Table of Contents Josef Schuster Welcoming Address . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

11

Izhak Englard Law and Human Dignity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

15

Yoram Danziger Freedom of Political Expression, the Right to Equality and Political Boycotts in Israel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Eric Hilgendorf The Abuse of Human Dignity – Difficulties in Using the Human Dignity Topos Taking the Bio-Ethics Debate as an Example . . . . . . . . . . . . . . . . . . . . . . . . . . . .

39

Barak Medina The Israeli Supreme Court’s Jurisprudence on the Right to Equal Treatment: Competing Views About the Role of Judicial Review . . . . . . . . . . . . . . . . . . . . .

61

Stefanie Schmahl Human Dignity in International Human Rights, Humanitarian and International Criminal Law: A Comparative Approach . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

79

Kyrill-A. Schwarz Human Dignity and Freedom of Religion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 Mordechai Kremnitzer and Lina Saba-Habesch Human Dignity and the Right to Due Process . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 Frank Peter Schuster Human Dignity, Human Rights and Criminal Procedure – The German Perspective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139 Miriam Gur-Arye Human Dignity, Human Rights and the Criminal Law – The Israeli Perspective 157 Susanne Beck Human Dignity, Human Rights and Criminal Law – The German Perspective

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Rachela Er’el and Doron Shultziner Human Dignity and the Prison System . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 191

List of Authors . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

Welcoming Address By Josef Schuster* Firstly, I want to warmly greet our Israeli guests – professors, graduate students and undergraduates! Welcome to Würzburg! I am extraordinarily pleased that this joint conference of the Faculty of Law, University of Würzburg and the Hebrew University of Jerusalem is taking place this year – and I want to extend a special thanks to Professor Hilgendorf for this great initiative. This year we are celebrating the 50th anniversary of the establishment of diplomatic relations between the Federal Republic of Germany and Israel. By the way, science played a very important role in ensuring that we can celebrate this anniversary: scientists and universities of both countries began working together after the war far more quickly than did the politicians. In doing so, they made important steps towards reconciliation, which were very helpful at the time diplomatic relations were established. But in the current context, we have no reason to avoid stating a simple fact: it was mainly natural scientists who participated in those early scientific collaborations. Hardly any lawyers were involved. It is not surprising that the Israeli side kept its distance at the start, given both the extent to which German legal science had embraced Nazi ideology as well as the scope to which German lawyers had actively participated in the National Socialist regime. A fact, however, that we should not lose sight of: many of the lawyers who emigrated from Germany were involved in the establishment of the Israeli legal system after the State of Israel was founded. Those lawyers brought with them the knowledge they had obtained in Germany when it was still a state under the rule of law. Under the Nazis the law was perverted and atrociously misused. We have to be grateful even today that it was possible to establish a stable, democratic state under the rule of law in Germany after the tragic abandonment of civilization during the Nazi period. * Josef Schuster is the President of the Central Council of Jews in Germany. He gave the Welcoming Address at the Würzburg Conference on Human Dignity, Human Rights and Criminal Law in Israel and Germany on 20th July 2015 in Würzburg.

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We could also never have imagined it 70 years ago – today German and Israeli academics being able to conduct scientific discourse on the importance of human dignity and human rights in both legal systems. This exchange between equals cannot be taken for granted. We should be aware of that and be grateful for it! Let me take this occasion to touch briefly on the German-Israeli relationship. Israel is a theme very close to the hearts of the Jewish community in Germany. For all Jews around the world, Israel is our safe haven. It is the place we can always go to if we are threatened. That is why we will never turn our backs on Israel. If the Jewish state had existed in the period 1933 to 1945, what did happen could never have happened. Ladies and Gentlemen, Only 20 years had passed since the end of World War II when Germany and Israel began their inter-state cooperation. If the establishment of diplomatic relations in itself was anything, it was certainly not self-evident. Hardly anyone would have dared to hope in 1965 that this relationship could become the success story it is today. I have brought some figures to illustrate this: There are more than 100 twinning arrangements between German and Israeli cities. In the last 50 years more than 700,000 youth from Israel and Germany have participated in exchange programs between the two countries. In 2013 more than 250,000 Germans visited Israel. And Germany is becoming increasingly popular in Israel. More and more Israelis are learning the German language. Berlin is hip for young Israelis. The numbers fluctuate a bit, but about 10,000 Israelis live in Berlin. Young people, whose grandparents had sworn they would never again set foot in Germany, are returning to find their families’ roots. They want to visit the towns and cities, which their grandparents came from. This openness of the young generation in Israel is a huge chance for Germany. If in a spirit of friendship Israelis approach Germans, Germans, of all peoples, should not hesitate to reciprocate those warm feelings. Unfortunately, there is a lot of work to be done here in this respect. There is nowadays a lot of hostility in Germany towards Israel. That has a lot to do with the ArabIsraeli conflict. It is problematic that Israel is often held to a much higher standard than other countries. And unfortunately age old anti-Semitic prejudices often still play a role in Germans’ understanding of Israeli policies toward the Arabs. That is why conferences like this one are so important. Direct encounters, the exchange of specialist knowledge and constructive cooperation contribute a lot to good relationships between different countries.

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Germany will always have and feel a special responsibility toward the State of Israel. Those of you who are taking part in this conference, are to a certain extent fulfilling that responsibility. And I am confident that you will pass on this sense of responsibility to your students. Very much like the ethical standards that result from human rights and the inalienable dignity of the human being, lawyers must always have the obligation to respect and protect these rights. And we all have to fight to ensure that this applies, not only in Germany, not only in Israel, but throughout the world. Thank you for your attention.

Law and Human Dignity By Izhak Englard It is a well-known fact that the notion of human dignity is a most complex one. Its meaning not only changed substantially in the course of history, but its actual significance is still a matter of philosophical and political discussion.1 No wonder, therefore, that its integration into the constitutional and legal framework raises problems of application that have to be solved by judicial interpretations which are not free of political and ideological considerations. The notion itself is of Roman origin – dignitas – which referred initially to an acquired social and political status, implying, generally, important personal achievements in the public sphere and moral integrity. It was thus a manifestation of personal authority, majesty, greatness, magnanimity, gravity, decorum and moral qualities.2 The sentiment of dignity was an important factor in Rome’s internal and external politics, both, as an expression of the individual’s own prominent status in society, as well as a reflection of the State’s collective image of imperial power.3 It is noteworthy that the full meaning of the Roman dignitas did not have an exact parallel, neither in the Greek language4, nor, apparently, in its culture.5 Cicero was the first author who used the term of dignity not in the traditional sense of social status, but in order to describe generally man’s outstanding position in the 1 The actual significance of dignity is equally a consequence of the specific legal and cultural tradition of a country; see the different papers in Christine Baumbach/Peter Kunzmann (eds.), Würde – dignité – godnos´c´ – dignity: Die Menschenwürde im internationalen Vergleich, (2010). 2 For a detailed analysis of the notion of dignity in ancient Rome see Viktor Pöschl, Der Begriff der Würde im antiken Rom und später, (1989). 3 Pöschl, supra note 2, at pp. 8, 14 – 15, 24 – 25. Compare Caesar’s message to Pompeius before the outbreak of hostilities (De Bello civili 1,9,2,): “sibi semper primam fuisse dignitatem vitaque potiorem”. “For himself [he said] his dignity had always been the prime [consideration], and more important than life.” In most editions the reference is to Caesar’s personal dignity; however, in the Loeb Classical Library edition, Caesar refers explicitly to the dignity of the republic (Caesar The Civil Wars, London 1961, at p. 16 – 17). For more on the motives of the parties involved in the conflict that eventually led to the civil war between Julius Caesar and Pompeius, with special reference to the motive of personal dignity, see Kurt Raaflaub, Dignitatis contentio – Studien zur Motivation und politischen Taktik zwischen Caesar und Pompeius, (1974); see on Caesar especially at pp. 149 – 150. 4 Pöschl, supra note 2, at pp. 9 – 11. The corresponding Greek terms are Til^ (honor) an_yla (axioma), dona (doxa). 5 Ibid., at pp. 17 – 18, 31.

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world by virtue of his very nature, namely, his rational capacity.6 Man’s special inherent quality as a rational being was, evidently, recognized in antiquity long before Cicero, but it seems that he was the first to convey that idea by means of the concept of dignity. In the Judeo-Christian religious tradition, the value and dignity of the human being is the result of his being a creature of God, created in the image of God.7 However, man’s special position in the world, that eventually was called his dignity, constituted merely one vision on the human condition. From antiquity, another, contrasting perspective competed with the positive one; instead of centering on the advantage of man over the animal world – given his creative capacities – it emphasized man’s humble position in relation to Divinity, his subjection to worldly vicissitudes and miseries, his limited corporeal powers and his short and brutish life.8 Historically, the development of dignity into an intrinsic feature of humanity can be traced back to the Renaissance that reacted to the pessimistic medieval vision of humanity. The change came gradually, and as in relation to other important aspects of Humanism, the new approach was initiated by the famous poet and outstanding humanist Francesco Petrarca (1304 – 1374).9 The theme was developed by the influential oration – that was never delivered – of Giovanni Pico della Mirandola (1463 – 1494) (De hominis dignitate oratio).10 One of the effects of the Renaissance notion of dignity, was, as Cassirer put it, the emerging of a newer, deeper concept of “subjectivity”.11 Later, this Renaissance notion of man led directly to the modern conception of individuality, of the autonomous and eventually sovereign self.12

6

Cicero De Officiis, Book I, 106, (The Loeb Classical Library, with an English Translation by Walter Miller, 1961) at pp. 108 – 109: “Atque etiam, si considerare volumus, quae sit in natura excellentia et dignitas, intellegemus, quam sit turpe diffluere luxuria et delicate ac molliter vivere, quamque honestum parce, continenter, severe, sobrie”. (“And if we will only bear in mind the superiority and dignity of our nature, we shall realize how wrong it is to abandon ourselves to excess and to live in luxury and voluptuousness, and how right it is in thrift, self-denial, simplicity, and sobriety.”) 7 Izhak Englard, Human Dignity: From Antiquity to Modern Israel’s Constitutional Framework, 21 Cardozo Law Review (2000), pp. 1903 et seq., at pp. 1906 – 1908. 8 Ibid., at pp. 1908 – 1910. 9 On the impact of Renaissance thought on human dignity, see ibid., at pp. 1910 – 1917. 10 Ibid., at pp. 1914 – 1915. 11 Ernst Cassirer, The Individual and the Cosmos in Renaissance Philosophy (transl. Mario Domandi, (2010)). 12 Donald R. Kelley, Renaissance Humanism, (1991), p. 48.

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The transformation of the notion of dignity into its modern sense of intrinsic value granting rights was a gradual process. It was a gradual transition from man as creature to man as a person.13 A new, important dimension to the notion of dignity is added by Immanuel Kant (1724 – 1804). He defines dignity (Würde) as a purpose of intrinsic, absolute value, above any price, and thus excluding any equivalence. In his understanding, dignity signifies the intrinsic worth of the autonomous individual. The idea of dignity is thus connected to Kant’s specific notion of morality: acting out of the conviction of a duty autonomously imposed by reason.14 Basically, Kant’s notion of dignity constitutes a moral postulate rather than a social value. It signifies that using another person as a mere means is a violation of the actor’s moral duty. In other words, the violation of the categorical imperative detracts from the actor’s dignity rather than from that of the victim.15 Ferdinand Lasalle (1825 – 1864) gave the notion of dignity a different direction by relating it to the material conditions of the working classes. He demanded that these conditions should be improved in order to achieve for them a “dignified” human existence (menschenwürdiges Dasein).16 It was, indeed, in this sense that the notion of dignity was first introduced into the Weimar Constitution of 1919 (art. 151 I). It seems, however, that it was basically the notion of dignity’s absolute and intrinsic character – generally conceived to be of Kantian origin17 – that promoted its inclusion into modern constitutions and human rights conventions in the wake of Nazi Germa-

13 On the post-renaissance developments of the notion of dignity, see Englard, supra note 7, at pp. 1917 – 1923. 14 Kant’s moral notion of dignity influenced numerous other authors, among them Rudolf von Jhering, Zweck im Recht II, 3rd ed. (1898), at pp. 495 – 499: “Würde ist Betätigung des eigenen Werturteils im Benehmen”. Kant’s conception of autonomy has been widely discussed and critically analyzed: Thomas E. Hill, Jr., Dignity and Practical Reason in Kant’s Moral Theory (1992) passim; Oliver Sensen, Kant on Human Dignity, (2011); see also Hans Kelsen, Reine Rechtslehre, 2nd ed. (1960), at pp. 420 – 425. 15 Kant describes the nonrecognition of another’s dignity as a vice (Laster); Immanuel Kant, The Doctrine of Virtue (Part II of The Metaphysics of Morals) ch. 1, § 2, 41 (Mary J. Gregor transl. (1964)). 16 Though Lassalle is routinely mentioned in modern German textbooks on constitutional law, I had considerable difficulty in finding in his works a reference to this idea. Eventually, I found one in his published lecture on the status of workers (Workers’ Program): Ferdinand Lassalle, in: Eduard Bernstein (ed.), Gesammelte Reden und Schriften II, (1919), p. 173; the author mentions here the right of the working class to demand from the state a better income, enabling an intellectual education and through it an existence that is really worthy of a human being (wahrhaft menschenwürdiges Dasein). Lasalle repeats this passage in his defense speech before the Berlin Criminal Court in 1863; ibid., at pp. 265 – 266. 17 For a critique of this assumption see Sensen, supra note 14, at pp. 146 – 212, who argues that Kant’s conception of dignity differs from the contemporary one.

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ny’s crimes during World War II. It actually became fashionable in these documents to relate all the different human rights to dignity.18 However, the Kantian secular notion of dignity is not exhaustive of the full meaning of the concept in modern constitutional law. Besides the centrality of individual autonomy, according to which a rational human being should never be used as a mere means, dignity comprises in the constitutional context additional elements of a different metaphysical and ideological origin. Thus, a number of social values considered to result from the notion of dignity, actually derive from religion or from utilitarian or communitarian ideologies that are hardly compatible with Kantian morality.19 In addition, the anthropocentric Kantian notion of dignity has been attacked by animal rights advocates on the ground of its “speciesism” – which, like sexism or racism, unfairly denies on arbitrary grounds full moral standing to other creatures. As a matter of fact, some Constitutions have recently been amended in order to include the dignity of creatures in general, a protection aimed to prevent abuses of modern bio-technologies.20 Before dealing with the notion of dignity in the two systems of law, namely that of Germany and that of Israel, a few general comparative comments on the respective constitutional frameworks will be offered. Both systems use for the legislative framework of the relevant provisions, instead of the normative concept of “constitution”, the term “Basic Law”.21 The reason given in Germany for this change of term was that, in view of the divided country between West and East, the notion of a “Constitution” for the German people was inappropriate.22 Interestingly, one of the arguments in Israel for the choice of the term was that, in view of the fact that the majority of the Jewish people were still living abroad, the elaboration of a rigid, formal “Constitution” for the Jewish state – expecting in the near future a mass immigration of Jews – was inadequate. It can be assumed that the choice of the corresponding Hebrew term for “Basic Law” was influenced by the German example. However, unlike 18

Among the conventions mentioning the dignity of human beings: Universal Declaration of Human Rights (1948); International Covenant on Economic, Social and Cultural Rights (1966); International Covenant on Civil and Political Rights (1966); Council of Europe’s Convention on Human Rights and Biomedicine (1996); Universal Declaration on the Human Genome and Human Rights (1997). It seems, however, that the first modern constitutional text referring to the dignity of the individual is the Preamble of the Irish Constitution of 1937. 19 See the interesting and provocative analysis of Michael Rosen, Dignity – Its History and Meaning, (2012). 20 See the amendment of 1992 of the Swiss Federal Constitution: Art. 24 novies, para. 3, now Art. 120 (2) of the Federal Constitution of 1999, providing that the legislation concerning the treatment of genotypes of animals, plants and other organisms has to take into account the “dignity of creatures”. For a defense of the dignity of animals, see Gotthart M. Teutsch, Die Würde der Kreatur, (1995); for critical comments see Kunzmann, supra note 1, at pp. 29 – 31. 21 The Hebrew term for the German Grundgesetz is Hoq Yesod. 22 Cf. Art. 146 of the Grundgesetz.

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the German formal constitutional document, named “Basic Law” (Grundgesetz), Israel lacks a comprehensive, formal document containing all the relevant constitutional provisions for the organization of the state. Instead, a series of Basic Laws has been enacted by the Israeli parliament, the Knesset, each law relating to a specific constitutional issue. In enacting these Basic Laws, the Knesset is considered to function as a constitutional assembly. The result is a partial, piecemeal constitution. Moreover, a majority of the enacted constitutional provisions are not entrenched and can, therefore, be amended by a simple majority of Knesset members. The reasons for the abstention to create a formal, comprehensive constitution were political. Let me now return to the notion of Dignity, which in Article One of the German Grundgesetz is declared to be inviolable (unantastbar). The provision reads as follows: (1) Human dignity is inviolable. To respect and protect it is the duty of all state authority. (2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of all every community, of peace and of justice in the world. (3) The following basic rights bind the legislature, the executive and the judiciary as directly enforceable law.

Among these basic rights are: liberty, equality, freedom of faith, conscience and creed, freedom of expression, of assembly and property. However, not only a number of these fundamental rights are subject to legislation, but all of them are subject to constitutional amendment. The notable exception is human dignity: according to article 79 (3) of the Basic Law, the principle of dignity cannot be changed by any amendment of the Basic Law. This constitutional framework created a specific problem of interpretation, namely the relationship between dignity and the other fundamental rights. Not surprisingly, the concept of dignity had to be constructed very narrowly in order to lend flexibility in relation to the other fundamental rights. Thus, it was suggested that the notion of dignity in Article 1, though serving as a source of inspiration to all other fundamental rights, was restricted to the most essential features of the human being (such as life, excluding death penalty and imprisonment for life).23 The essence and place of dignity in the German constitutional framework provoked a protracted controversy that created an extensive literature. At the basis of the discussion are contrasting phil-

23

There is an extensive literature on the German constitutional notion of human dignity: see Michael Sachs/Ulrich Battis, Grundgesetz Kommentar, 1st ed. (1996), Art. 1, pp. 99 – 120; Theodor Maunz/Günther Dürig, Grundgesetz Kommentar, (1997), Art. 1 (I), pp. 1 – 26; Peter Häberle, Die Menschenwürde als Grundlage der staatlichen Gemeinschaft in: Josef Isensee/ Paul Kirchhof (eds.), Handbuch des Staatsrechts der Bundesrepublik Deutschland, (1995), pp. 815 – 861, and see the bibliography mentioned in these works; cf. Tade M. Spranger, Der Begriff der Würde in der deutschen Verfassung in: Baumbach/Kunzmann (eds.) supra note 1, at pp. 129 – 142. See in particular Eric Hilgendorf, Problemfelder der Menschenwürdedebatte in Deutschland und Europa und die Ensembletheorie der Menschenwürde, 57 Zeitschrift für Evangelische Ethik (2013), pp. 258 – 271.

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osophical and jurisprudential views. Positivist outlooks clash with natural law conceptions, Kantian metaphysics with anti-metaphysical approaches. Among the many scholars who exercised an influence upon the determination of the notion of dignity, one may mention Günter Dürig, Hasso Hofmann, Ernst-Wolfgang Böckenförde and his disciples, and naturally our colleagues Horst Dreier and Eric Hilgendorf. Horst Dreier denied the actual religious dimension and sacrality of the constitutional notion of dignity.24 In part, the controversy turns around notions that are rather specific to the German jurisprudence, like objective and subjective law (subjektives Grundrecht, objektive Verfassungsnorm). Moreover, concepts like value and right, law and morality are contrasted in the ongoing discussion. Mention has to be made of the decision, handed down by the Constitutional Court in 2006, in relation to the constitutional invalidity of art. 14 (3) of the German Aviation Security Act (Luftsicherheitsgesetz).25 The Court relies on previous decisions of the Court that declared: “Menschenwürde ist tragendes Konstitutionsprinzip und oberster Verfassungswert”, (“Human dignity constitutes a founding principle and the supreme constitutional value”), and further: “Die Verpflichtung zur Achtung und zum Schutz der Menschenwürde schliesst aus, den Menschen zum bloßen Objekt des Staates zu machen”. (“The obligation to respect and safeguard human dignity excludes the turning of a human being into a mere object of the state”). This statement expresses the so-called “Objektformel” elaborated under the influence of Kant’s notion of dignity in connection with the categorical imperative.26 Special problems are created by the issue of abortion, where the dignity and life of the unborn child clashes with the dignity, autonomy and health of the pregnant woman. The complex legislative and constitutional history of article 218 of the German Criminal Code bears witness to the problematic issue. Let me turn now to the notion of dignity in the Israeli legal context. First a terminological observation: The term “dignity” is the non-binding English translation of the Hebrew word “kavod” in the original text of the Basic Law. In order to fathom the interpretation of the concept in the legislative context, a short etymological excursion into the origin of it in Hebrew is – fortunately or unfortunately – inevitable. In the Bible the word kavod appears about two hundred times, in rabbinical literature it is used ten thousands of times. The central meaning of kavod and its affiliated verbs is honor. In the Decalogue: Honor your father and mother; the term is used in relation to persons, but also to sacred days, and even to things. Kavod, in this 24

Horst Dreier, Säkularisierung und Sakralität, (2013), pp. 79 – 89. BVerfG, 15. 02. 2006, 1 BvR 357/05; BGBl. I (2006), p. 466. 26 See the critical comments on the notion of “instrumentalism” in relation to dignity by Hilgendorf, supra note 23, at pp. 266 – 267. Cf. also Dietmar von der Pfordten, Menschenwürde, Recht und Staat bei Kant – Fünf Untersuchungen, (2009), pp. 9 – 26. 25

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sense, is related, as suggested by Avraham Ibn Ezra (ca. 1092 – 1167) – in his commentary on Genesis, 13,2 – to kaved: heavy; its opposite kalon, meaning shame, is related to kal: light. Additional meanings in the Bible are: wealth, glory, greatness, majesty, splendor – the latter notions are employed especially in relation to Divinity.27 As demonstrated by the huge numbers of the term’s use in the Jewish religious literature, honor is obviously a most important element in Jewish society; this seems still to be true for the whole Middle East, and probably also elsewhere, until this very day. However, none of the traditional meanings signify “dignity” in the modern sense, as used in the context of fundamental human rights. Honor, as distinguished from dignity, is even viewed suspiciously by the sages, if actively pursued by the individual; hence the saying of Rabbi Eliezer Ha-Kappar (late 2nd century C.E.): “Jealousy, lust, and honor (kavod) expel a man from the world”.28 However the uniform judicial interpretation of the term “kavod” in the Basic Law has been “dignity”, whatever the original legislative intention might have been. As a matter of fact the right to dignity, by means of the term “kavod”, had been judicially recognized before the enactment of the Basic Law: Human Dignity and Liberty in 1992.29 Let me quote the different sections of that Basic Law as amended in 1994. Basic Principles 1. Fundamental human rights in Israel are founded upon recognition of the value of the human being, the sanctity of human life, and the principle that all persons are free; these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel.

27 See Salomon Mandelkern’s Concordance of biblical terms: Veteris Testamenti Concordantiae Hebraicae Atque Chaldaichae, 6th ed. (1964). The meanings in Latin mentioned in the Concordance are: divitiae, opes, copia, honor, gloria, magnificentia, splendor, maiestas, praedicatio, hymnus. It is noteworthy that dignitas is not mentioned in that concordance. 28 Pirkei Avot (Sayings by the Fathers): 4:21 (translated by author). 29 For example, in the 1979 case of HCJ 355/79 Katalan v. Prison Services 34(3) PD 294 [1980], Israel’s Supreme Court disqualified the prison service’s practice of subjecting prisoners returning from leave to an enema when there was well-founded suspicion that they had smuggled drugs within their persons. This practice was carried out against the prisoners’ will. The Court, in the ruling written by Justice Aharon Barak, noted that: “Prison walls do not bar the prisoner from human dignity,” and that life in prison does not require negation of the prisoner’s right to the integrity of his body or protection against the violation of human dignity. The prisoner may be deprived of liberty but not of his humanity. Forcing an enema on a prisoner, against his will, and without medical justification, injures the integrity of the body, violates his modesty, and damages his dignity as a person. See Ahron Barak, Human Dignity – The Constitutional Right and Its Daughter-Rights (2014) pp. 111 – 113 (in Hebrew); Ariel L. Bendor/Michael Sachs, The Constitutional Status of Human Dignity in Germany and Israel, 44 Israel Law Review (2011), pp. 25, 29 – 30.

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Purpose 1a. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.

Preservation of Life, Body and Dignity 2. There shall be no violation of the life, body or dignity of any person as such.

Protection of Property 3. There shall be no violation of the property of a person.

Protection of Life, Body and Dignity 4. All persons are entitled to protection of their life, body and dignity.

Personal Liberty 5. There shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.

Leaving and Entering Israel 6. (a) All persons are free to leave Israel. (b) Every Israel national has the right of entry into Israel from abroad.

Privacy 7. (a) All persons have the right to privacy and to intimacy. (b) There shall be no entry into the private premises of a person who has not consented thereto. (c) No search shall be conducted on the private premises of a person, nor in the body or personal effects. (d) There shall be no violation of the confidentiality of conversation, or of the writings or records of a person.

Violation of Rights 8. There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law.

Reservation Regarding Security Forces 9. There shall be no restriction of rights under this Basic Law held by persons serving in the Israel Defence Forces, the Israel Police, the Prisons Service and other security organizations

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of the State, nor shall such rights be subject to conditions, except by virtue of a law, or by regulation enacted by virtue of a law, and to an extent no greater than is required by the nature and character of the service.

Validity of Laws 10. This Basic Law shall not affect the validity of any law (din) in force prior to the commencement of the Basic Law.

Application 11. All governmental authorities are bound to respect the rights under this Basic Law.

Stability 12. This Basic Law cannot be varied, suspended or made subject to conditions by emergency regulations; notwithstanding, when a state of emergency exists, by virtue of a declaration under section 9 of the Law and Administration Ordinance, 5708 – 1948, emergency regulations may be enacted by virtue of said section to deny or restrict rights under this Basic Law, provided the denial or restriction shall be for a proper purpose and for a period and extent no greater than is required.30

Two preliminary general comments on that Basic Law: First, the reference in section 1(a) to the values of the State of Israel “as a Jewish and democratic state” is at the source of profound controversies over the meaning and essence of the Jewishness of the state. Traditional, religious law ideologies clash with secular-cultural and ethnicnational outlooks. These conflicts influence the balance between conflicting fundamental human rights and collective state interests. Second, a general, substantial limitation of the Basic Law is established by section 10, which preserves the validity of

30

There seems to be a contradiction between section 39(d) of the Basic Law: The Government of 1968, providing that: “Emergency regulations may not […] permit violations of human dignity.” and section 12 of the quoted Basic Law: Human Dignity and Liberty, that permits emergency regulations “[…] to deny or restrict rights under this Basic Law, provided the denial or restriction be for an appropriate purpose, and for a period and to an extent that do not exceed what is necessary.” See Bendor/Sachs, supra note 29, p. 25. According to these authors, the only way to resolve this apparent contradiction is to interpret the concept of human dignity as employed in the Basic Law: The Government, that is, in a manner far more restricted than that applied when interpreting the right to human dignity in the Basic Law: Human Dignity and Liberty. According to this approach, while it is absolutely prohibited to violate the narrow essence of human dignity through the application of specific measures (e. g., torture), it is permissible to violate human dignity in its broader sense, for instance by denying freedom of expression, on condition that such a violation abides by the demands of the limitation clause in the Basic Law: Human Dignity and Liberty. For a different opinion, see Amnon Rubinstein/Barak Medina, The Constitutional Law of the State of Israel, 6th ed. (2005), p. 953 (in Hebrew). These authors suggest to add, by means of interpretation, a “limitation clause” to section 39(d) of the Basic Law: The Government of 1968, that would allow violation of human dignity for an appropriate purpose and for a period that is necessary.

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all prior enacted legislation, notwithstanding the fact that it violates the fundamental human rights newly protected by the Basic Law.31 Compared to the German Grundgesetz a certain similarity consists in the negative and positive protection of dignity. Parallel to the German notions of “Abwehrrecht” and “Leistungsrecht”, as established, in relation to dignity in article 1 by the terms of “achten” (“respect”) and “schützen” (“protect”) – the Israeli Basic Law orders in section 2 that “there shall be no violation of dignity”, and in section 4 that “all persons are entitled to protection of their dignity”. However, a fundamental difference between the two systems relates to the nature of the right to dignity: in Germany it is “unantastbar”, inviolable, meaning that it constitutes an absolute right; in Israel it is merely a relative right, that can be infringed by legislation, provided that the latter is in conformance with the limitation clause, as established in section 8 of the Basic Law. In Germany the assumed absolute nature of human dignity resulted, as mentioned, in a rather narrow definition of the inviolable essence of dignity. On the other hand, the relative nature of human dignity in Israel enabled the Supreme Court to give it a very broad interpretation. Contrary to German constitutional law, the various Israeli Basic Laws mention explicitly only relatively few human rights, namely: Life, bodily integrity, dignity, liberty, property, privacy, intimacy, and freedom of occupation. Not mentioned in the Basic Laws are, among others, the following fundamental human rights: Equality, freedom of speech, freedom of religion and conscience, access to courts, freedom to strike, education, and health. As a matter of fact, the Knesset explicitly rejected the inclusion of additional human rights, especially that of equality. However, human dignity implies many, if not all other human rights. The Supreme Court was faced with the question of defining the ambit of dignity, covering additional human rights, in view of the explicit abstention of the Knesset to include them in the Basic Law. This question of interpretation created a controversy among judges and scholars. The right to equality constituted the central issue. The different contrasting approaches are naturally based upon subjective political and moral ideologies. Bendor and Sachs focus on four different approaches which they define as “reductive”, “expansive”, “intermediate reductive” and “intermediate expansive”.32 According to the authors, the “reductive approach” states that the right to human dignity does not overlap with any other right, especially rights not explicitly elaborated in the Basic Law: Human Dignity and Liberty, or in the Basic Law: Freedom of Occupation of 1994. A violation of the right to human dignity would thus entail only an action or non-action that does not violate any other human right still unprotected by Basic Laws. This approach suits the Knesset’s 31 Cf. H.C.J. 703/15 Derwish v. Mefaqed Piqud HaOref (19. 3. 2015), in relation to the validity of the Defense (Emergency) Regulations of 1945, promulgated by the British authorities in Mandatory Palestine and incorporated into the Israel legal system with amendments. 32 Bendor/Sachs, supra note 29, pp. 25, 45 – 51.

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clear intent to constitutionally anchor only those rights enjoying wide-scale agreement regarding their incorporation in the Basic Laws. However, it is very difficult to find a violation of human dignity that does not violate some other right, such as rights to life, bodily integrity, liberty, or equality. As a matter of fact, the above mentioned approach received little support. According to the “expansive approach”, human dignity is the factor common to all human rights, serving as their foundation and substructure and ensuring their normative unity. On the basis of this approach, several Supreme Court justices have expressed the opinion that the general right to human dignity under the Basic Law: Human Dignity and Liberty, included other rights, such as the right to equality, freedom of speech, the right to due process, and the freedom to strike. But ultimately this approach was rejected by a majority of justices. In relation to the expression “intermediate approach”, the above mentioned authors remark that it is very popular in Israeli Supreme Court case law. It avoids transmitting an impression of the Court as being extreme, and instead presents the Court as moderate and balanced – qualities regarded as appropriate to courts – thus contributing to public trust in its rulings. In reality, however, there are two different intermediate approaches that have been voiced by our justices in the case law. The one – which the authors call “reductive intermediate approach” – excludes, in principle, all human rights that are not explicitly set down in the Basic Law. However, when a law or regulation violates the essence of human dignity, by degrading or humiliating a person, it will be annulled, even if it violates at the same time a right that is not laid down in the Basic Laws, such as the right to equality. In other words, when a violation of equality, or of freedom of speech, constitutes a humiliation of the person, it will be considered a violation of human dignity.33 This approach is reminiscent of the restrictive interpretation of dignity in the German Grundgesetz. The second “intermediate” approach, called by Bendor and Sachs “expansive intermediate approach”, was adopted by the Supreme Court under the leadership of the President of the Supreme Court, Justice Aharon Barak. It is based on the view that although the right to human dignity in the Basic Law does not include all human rights, it nevertheless entails the protection of a number of rights that are linked to human dignity as an expression of the autonomy of personal will, freedom of choice and freedom of action, and similar aspects of human dignity. Justice Barak calls these human rights, derived from dignity, “daughter-rights”. These rights, judicially recognized, include the right to personhood, the social right to a minimum standard of dignified living, the right to reputation, the right to family life, the right to equality, the right to freedom of expression, the right to freedom of conscience and freedom of 33 This approach is identified with Justice Dalia Dorner who developed it in her opinions in the Supreme Court: H.C.J. 4541/94 Alice Miller v. Minister of Defense, 49(4) PD 94, 133 – 34 [1995]; PPA 4463/94 Avi Hanania Golan v. Prisons Service, [1995 – 96] Israel Law Reports 489, 550 – 558 (in English).

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religion, the right to freedom of movement, the right to education, labor rights, the right to judicial and administrative due process.34 This expansive judicial approach in relation to the notion of dignity, concomitant with constitutional judicial review, provoked a sharp negative reaction, especially from political circles, but caused equally an ongoing controversy among scholars. The Supreme Court was blamed for being too activist in relation to human rights, and there have been, and continue to be, legislative attempts to limit the judicial function of the Court. Moreover political circles strive for more influence upon the appointment of judges. All these tendencies are very dangerous for the independence of the judiciary, for the rule of law and for the democratic-liberal character of the State of Israel. In the absence of entrenched constitutional provisions, dangerous legislative changes can be effected by simple parliamentary majorities. Let us hope that these changes will be avoided.

34 See Barak, supra note 29, pp. 111 – 113 (in Hebrew); the author dedicates the whole Volume II to these human rights derived from dignity.

Freedom of Political Expression, the Right to Equality and Political Boycotts in Israel By Yoram Danziger

I. Introduction As you probably know, the Israeli Supreme Court is firstly a court of appeal. As such we deal with civil, criminal and administrative appeals on decisions of the six Israeli District Courts. However, our Supreme Court is also a Constitutional Court, known as the “High Court of Justice”. As such, our Court deals with petitions of individuals and NGOs, challenging actions of the Government and statutes of the Israeli Parliament (The Knesset). Despite the fact that our State recently celebrated its 70th birthday, Israel does not yet have a written constitution. This is a subject for a special lecture I do not intend to give today. However, I will just say that the founders of our State, back in 1948, headed by David Ben-Gurion, realized that there was no way to reach an understanding in respect of the contents and wording of a Constitution, mainly due to the fact that the Israeli population included many Arabs (mostly Moslems, but also Christians and Druze) that found it difficult to accept the outcome of our War of Independence, as well as orthodox Jews – who believed that Israel should become a religious State governed by the ancient Hebrew Law. In 1951 the Israeli Parliament adopted a resolution (known as the “Harari Resolution”) according to which, instead of drafting a Constitution, the Parliament – acting as a Constitutional Assembly – would enact special laws (“Basic Laws”) and each of such Laws would eventually become a chapter in Israel’s future Constitution. Basic Laws were legislated covering virtually all aspects of our constitutional system. However, these Basic Laws did not include a basic law on civil rights. It was not until 1992 that the Israeli Parliament enacted our “Bill of Rights” known as “Basic Law: Human Dignity and Liberty” (together with another Basic Law titled Basic Law: Freedom of Occupation). The enactment of this Basic Law is regarded by many as the milestone of the “Constitutional Revolution” in Israel. The legislation of Basic Law: Human Dignity and Liberty caused a profound change in Israel’s constitutional law. A new constitutional “tradition” has begun to form. Prior to the enactment of the Basic Law, there was only one case in

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which the Supreme Court canceled a statute of the Knesset.1 Since the passing of the above Basic Law, the Supreme Court has canceled 13 statutes of the Knesset, the last of which I will review later in this lecture. The above Basic Law declares that the fundamental human rights in Israel are “founded upon recognition of the value of the human being […] and the principle that all persons are free”. Moreover, it adds that “these rights shall be upheld in the spirit of the principles set forth in the Declaration of the Establishment of the State of Israel”. The Declaration, dated May 14th 1948, clearly stated that the State of Israel would “ensure complete equality of social and political rights to all its inhabitants irrespective of religion, race or sex […].” The rights contained in the Basic Law are subject to the following general limitation clause: “There shall be no violation of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required or by regulation enacted by virtue of express authorization in such law”. (Section 8 of the Basic Law).

The Basic Law also provides that: “This Basic Law shall not affect the validity of any law in force prior to the commencement of the Basic Law”. (Section 10 of the Basic Law).

In 1997 our Supreme Court held that the Basic Law concerning human rights holds a constitutionally super – legislative status.2 This judgment held that an ordinary statute which infringes one of the human rights and does not meet the conditions of the limitation clause, is an unconstitutional statute, and the Court may declare it invalid. It should be noted that, as of today, our Parliament has not yet legislated a Basic Law which will specifically empower the Supreme Court to strike down unconstitutional statutes, due to an ongoing controversy as to the extent of the powers of the Israeli Supreme Court. Nevertheless, as I already said, the Basic Law on Human Dignity and Liberty is regarded by our Court as granting it the power to cancel laws of the Knesset that infringe human rights. Below I will review the way that our Court handled the 2011 statute dealing with political boycotts, but prior to that, I would like to tell you what is my personal view in respect of our role as judges of the Israeli Supreme Court, which is also, as I already said, a Constitutional Court.

1

H.C. 98/69 Bergman v. Minister of Finance 23(1) PD 693 (1969). CA 6821/93 United Mizrachi Bank v. Migdal Agricultural Cooperative 49(4) PD 221 (1997). 2

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II. The Role of a Constitutional Court in a Democracy Judges of Constitutional Courts in a democracy often ask themselves: “What is our role as judges?” There is no doubt that firstly we are requested to decide disputes brought before us and to determine the law by which the dispute should be decided. However, and even more important (at least in my opinion), we are expected to protect the Constitution of our country and to ensure that it remains a democracy. We are actually the “Watchdogs” or “Gatekeepers” of Democracy and of the protection of human rights. As submitted by Professor Aharon Barak, President of our Supreme Court until 2006, in an article titled “Human Rights in Israel”3 (hereinafter: Barak)] this is certainly the case for new democracies, but it is also true in respect of the old and well-established ones. The approach that existed in Europe at the beginning of the last century (and especially in Germany), according to which “it cannot happen to us”, should not be accepted. Anything can happen, even in countries with a comprehensive and well drafted Constitution. If democracy was perverted and destroyed in the Germany of Goethe, Beethoven and Kant, it can happen anywhere.4 It is true. One of the lessons of the Second World War (and of the Holocaust) is the need to have democratic Constitutions and ensure that they are put into effect by judges of the highest instances of the Judiciary, whose main task is to protect democracy. This awareness helped, in the post-World War II era, to disseminate the idea of judicial review of legislative action and make human rights central. This awareness also led to the recognition of “defensive democracy” in many European countries (and in Israel as well) and even to the recognition of “militant democracy” in a few. As you well know in contemporary Germany, militant democracy is one of the foundations of the German constitutional structure. President Barak, described our role as Judges in one of his opinions as follows: “The struggle for the law is unceasing. The need to watch over the rule of law exists at all times. Trees that we have nurtured for many years may be uprooted with one stoke of the axe. We must never relax the protection of the rule of law. All of us […] must protect our young democracy. This protective role is conferred on the Judiciary as a whole, and on the Supreme Court in particular. […] We the judges of this generation, are charged with watching over our basic values and protecting them against those who challenge them”.5

I am convinced that this approach is common to many Constitutional and Supreme Court Judges in modern democracies. 3

Aharon Barak, Human Rights in Israel, 39 Israel Law Review (2006), p. 12. Barak, supra note 3, at p. 31. 5 H.C. 5364/94 Velner v. Chairman of the Israeli Labor Party 49 (1) PD 758, 808 (1995). 4

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Judicial protection of democracy in general, and of human rights in particular, characterizes the development of most modern democracies. There is no real democracy without recognition of values and principles such as morality and justice. Above all, a real democracy cannot exist without the protection of individual human rights (rights that cannot be taken away by the majority). Real democracy is not just the law of rules and legislative supremacy. It requires recognition of the power of the majority and limitations on such power. It is based on legislative supremacy and the supremacy of values, principles and human rights. Our duty as judges is to keep an open eye and guarantee that the values and principles of our democracies will always be guarded. We cannot escape from this responsibility.6

III. The Historical Background Israeli Governments stated many times that Israel is ready to negotiate a solution based on a vision of a Palestinian State existing alongside the Jewish State in peace and security.7 I will base the following review on the above release. Having said that, it must be taken into account that the issues of the borders of the two States and the future of Jewish presence on the West Bank of the Jordan River after the establishment of the Palestinian State (but even nowadays), were always at the heart of the political controversy in Israel. There is an argument according to which Israeli settlement activity on the West Bank is illegal, since it contravenes Article 49 of the Fourth Geneva Convention according to which “the Occupying Power shall not deport or transfer parts of its own civilian population into the territory it is occupying”. However, we must not forget that the Fourth Geneva Convention applied to situations like that of Nazi-occupied Europe, which involved “forcible transfer, deportation or resettlement of large numbers of people”. I am not a politician. I am not a representative of the Israeli Government. I am a Judge. My lecture today will review a statute of the Israeli Parliament – entitled “The Law for Prevention of Harm to the State of Israel through Boycott” – enacted in 2011 in order to fight those who are calling for boycotts of Israel. The above statute was reviewed by the Israeli Supreme Court, in its capacity as a constitutional court, following three petitions according to which it was argued that the above statute was unconstitutional because it infringed the political freedom of speech in Israel. Before looking into the statute and our court’s decision, there is a need to review the political situation in Israel commencing with the Six Day War of 1967. 6

Barak, supra note 3, at pp. 31 – 32. See, for example: the official release of the Israeli Ministry of Foreign Affairs, of 30. 12. 2009. 7

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From 1948 to 1967 the West Bank of the Jordan River was under Jordanian control. Following the Six Day War in 1967, which was a war of self-defense, Israel took control over the West Bank. It is noteworthy that Jordanian control over the West Bank until 1967 was never recognized by the international community. Moreover, no sovereign Palestinian State has ever existed, neither in the West Bank nor anywhere else. Therefore, while there are arguments that the West Bank should be regarded as a disputed territory, over which there are competing claims that should be resolved in peace talks, many argue that the West Bank should be regarded as an occupied territory. It should be noted that direct peace talks between Israel and the Palestinians commenced in 1991 and led to the September 1993 Declaration of Principles, under which Israel agreed to the establishment of the Palestinian Authority in the West Bank and Gaza, and transferred substantial powers and responsibilities to the Palestinians in vast geographical areas. Negotiations for a final settlement continued and led to the 2000 Camp David and Taba summits which unfortunately failed. In 2005 Israel decided to disengage from Gaza. Nevertheless, Hamas took power in Gaza in 2007 and since then three large-scale operations have been initiated by Israel due to rocket and mortar attacks mostly on southern Israeli towns and villages by Hamas. Various attempts to restart the negotiations between Israel and the Palestinian Authority (which is still in power in the West Bank) led to further negotiations that did not succeed. Since the West Bank held the cradle of Jewish civilization during biblical times and Jewish communities have existed there over thousands of years, hundreds of thousands of Israelis have settled in the West Bank over the past four decades. They live in towns and settlements and wish the territory will be part of the State of Israel under a future peace agreement with the Palestinians. They believe that their claim to the territory is no less valid than that of the Palestinians, not only due to “ancient ties” or religious beliefs but also due to Israel’s security needs. It is noteworthy that past peace negotiations between the parties addressed solutions that included compromises on the borders between Israel and a potential Palestinian State. Moreover, most of the Israeli settlements in the West Bank are concentrated in “Settlement Blocs” located close to the 4th June 1967 lines. UN Security Council Resolution 242 acknowledged the problematic nature of the 1967 lines (which had left Israel with a “narrow waist” of approximately 9 miles), and recognized Israel’s need for “secure and recognized boundaries”. Resolution 242 specifically dismissed the Arab demand for a text that required Israel to completely return all the territory it occupied during the 1967 War, calling only for Israel’s “withdrawal from territories occupied in the recent conflict”, not from “all the territories” or ever from “the territories”. It seems that a final settlement of the Israeli-Palestinian dispute will have to reflect the new reality of the West Bank and will require compromises by both sides.

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Having said that, it must be submitted that Israel’s right to build settlements in the West Bank has always been a disputed issue both internationally and in Israel itself. One may say that the above issue is at the heart of the political controversy in Israel. For many years the claim has been put forth that the primary obstacle to peace is the Jewish presence in the West Bank. Others claim that the right of Jews to resettle all parts of the Land of Israel was recognized by the international community back in 1922, in the League of Nations Mandate, which provided for “close settlement by Jews on the land, including State lands not required for public use”. For more than a thousand years, the only time that Jewish settlement was prohibited in the West Bank was under the Jordanian occupation (1948 – 1967) that resulted from an armed invasion. During these two decades the Jewish presence in the West Bank was eliminated, and the sale of land to Jews was declared a capital offense. After the 1967 War, Israeli Governments decided that it is just and legitimate for Israelis to build their communities in the West Bank, but indicated their willingness to negotiate the issue. However, despite the fact that since the beginning of the peace process in the 1990s, and for more than twenty years, neither side had ever posed preconditions for beginning talks, the Palestinians declared during the last few years that no negotiations could take place until Israel agreed to a total cessation of settlement activity in the West Bank and Jewish building in eastern Jerusalem. Israel, on its part, demanded that the Palestinians have to recognize Israel as the nationState of the Jewish people.

IV. The Israeli Boycott Law This highly disputed issue was the background on which the Law for Prevention of Harm to the State of Israel through Boycott (or in short – “the Boycott Law”) was introduced. The draft legislation of the Boycott Law was introduced in July 2010 by a group of 25 Members of the Knesset. This Draft suggested imposing several “types” of sanctions against those who call for and participate in boycotts against the State of Israel and its citizens, businesses, academic institutions etc. Supporters of the Boycott Law argued that Israel must protect itself and its people against the harms of boycotts. They emphasized the wide participation and magnitude of the boycott phenomena. In this regard, supporters of the law referred specifically to the BDS movement, a global movement promoting boycott, divestment and sanctions against corporations and individuals who are affiliated with the State of Israel. These supporters argued that the BDS movement, much like its predecessor – the “Arab Boycott” movement – imposes a serious threat and could cause enormous damage to Israel and its citizens. Despite the relatively broad consensus in the Israeli public, as well as in the Knesset, regarding the dangers of the boycott phenomena, there were many Knesset members and Government officials who opposed the proposed Boycott Law. An official

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from the Ministry of Foreign Affairs, for instance, argued, during preparation-session held by a Knesset committee, that the proposed Law would actually increase the number of boycotts against Israel. He explained that the BDS movement could seize on the Law as further justification for boycotting Israel. Others argued that the Law was unconstitutional, as it infringed the right to freedom of speech. Some members of the opposition even added that the Law’s real goal was to silence criticism against the Government’s policy. This opposition had some important achievements. For instance, it managed to mitigate the proposed law’s potential danger by convincing the Knesset committee to strike down a proposed provision that made it a criminal offence to call for a boycott against Israel. However, the opposition did not manage to prevent the law’s enactment. It was passed by the Knesset in July 2011. In its final version, the law consisted of two separate “tracks” for imposing sanctions on those who call for a boycott against Israel. The first was a “civil” track that made it a tort to “knowingly publish a public call for a boycott against the State of Israel”. This track also included a provision that authorized the court to impose punitive damages that are independent of the actual damage caused, on those who deliberately and maliciously call for a boycott against the State of Israel. The second track of the law was an “administrative” one. In this track, the Minister of Finance was authorized to institute regulations restricting those calling for such boycott from participating in state tenders and to deny them some of the various benefits granted by the state. One of the key provisions of the Boycott Law was its definition of the term “boycott against the State of Israel”, a definition which outlined the scope of the law’s application. This definition goes as follows: “[D]eliberately avoiding economic, cultural or academic ties with another person or body solely because of their affinity with the State of Israel, one of its institutions or an area under its control, in such a way that may cause economic, cultural or academic damage”.

I should point out that the phrase referring to an “area” under the control of the State of Israel took center stage in the debate regarding the Boycott Law. The reason for the centrality of this phrase is that a direct and literal reading of the definition might lead to the conclusion that the Boycott Law applies its directives not only to boycotts of the State itself, but rather also to boycotts aimed solely against the settlements in the West Bank. This possible reading of the Boycott Law placed the law at the heart of the Israeli political debate regarding the future of the settlements.

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V. The Israeli Supreme Court Decision in Respect of the Boycott Law Thus, it was only natural that the Boycott Law gave rise to a major political and legal dispute in Israel, and it was not before long that several petitions were filed to the Supreme Court, seeking to annul the law. The petitioners argued that the Boycott Law violated their protected constitutional rights to freedom of political expression, equality, and freedom of occupation. They claimed that the law aims at silencing protests against the Government’s policy regarding the settlements in the West Bank, and that by doing so the law restricted the democratic means available to the minority to express its opposition to that policy. They concluded that this infringement of constitutional rights had no compelling legal justification and called upon the Court to deem the entire law unconstitutional. The respondents, on the other hand, asked the Court to uphold the Law’s constitutionality. They explained that the Boycott Law expressed the State’s obligation to protect the entities affiliated with it, to prevent discrimination against its citizens, to protect Israel’s standing in the world and to prevent harm to its foreign relations. The respondents argued that these were proper and worthy purposes that provided a constitutional justification for the restrictions the law imposed on protected constitutional rights. Before describing our Court’s decision in this case, it should be noted that the Basic Law: Human Dignity and Liberty does not include explicit clauses in respect of freedom of expression or equality. This Basic Law includes a list of basic rights: the right to life, body and dignity and to protection of these interests (sections 2 and 4); the right to property (section 3); liberty of the individual (section 5); the right to leave and enter the country (section 6) and the right to privacy and personal confidentiality (section7).8 Does this mean that freedom of expression and equality do not have constitutional status in Israel? The answer is negative! Our Supreme Court accepted the position that the right to dignity includes freedom of expression9 and the right to equality10. The Israeli Supreme Court announced its decision approximately three months ago, on 15. 4. 2015. In it, the majority, led by Justice H. Meltzer – with whom Chief Justice (retired) A. Grunis, Chief Justice M. Naor, Deputy Chief Justice E. Rubinstein and Justice I. Amit concurred – decided that the vast majority of the Boycott 8

David Kretzmer, The Basic Laws on Human Rights: A Mini-Revolution in Israeli Constitutional Law?, 26 Israel Law Review (1992), pp. 238, 245. 9 H.C. 4463/94 Golan v. The Prison Services 50(4) PD 136 (1996). 10 H.C. 5432/03 SHIN for Equal Representation of Women v. The Board for Cable and Satellite Broadcasting 58 (3) PD 65 (2004).

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Law is constitutional. Nevertheless, the majority agreed to strike down section 2(C) of the Boycott Law, which allowed imposing punitive damages on those who deliberately and maliciously call for boycott against Israel. In his opinion, Justice Meltzer of the majority ruled that while the Boycott Law indeed infringes the constitutional right to freedom of speech, it does not undermine the “core component of freedom of speech”. Justice Meltzer explained that by calling for a boycott, the boycotting party is in fact trying to force his opinions on the boycotted party through means of economic and social coercion. In this regard, Justice Meltzer held that a call for boycott deviates from the usual purpose of freedom of speech. These calls are not intended to enrich and inspire public debate, but rather to eliminate competing views through means of pressure. In this respect, Justice Meltzer even noted that calling for and participating in a boycott against the State of Israel can sometimes be regarded as “political terrorism”. Justice Meltzer therefore concluded that a call for a boycott should be entitled to a reduced level of constitutional protection in comparison to “regular” political speech. Justice Meltzer further decided that the Boycott Law’s violation of the constitutional right to freedom of speech is intended for a worthy purpose and is deemed proportionate, and therefore concluded that the law passed the constitutional challenge brought by the petitioners. However, Justice Meltzer suggested striking down the “punitive damages” provision, as it imposes a disproportionate burden on exercising the right for freedom of speech. I wrote the main dissenting opinion in this case. In my dissent, I argued that, contrary to Justice Meltzer’s opinion, the Boycott Law substantially violates the right to freedom of political speech. I explained that a call for a political boycott can serve as a peaceful instrument for achieving political objectives and for expressing one’s political views and moral beliefs. Therefore, a call for a political boycott lays at the heart of the constitutional right to freedom of speech. This conclusion, I noted, is especially true in regard to calls for political boycotts which are restricted to the settlements in the West Bank. Since the fate of these settlements is a matter of fierce and profound political and public disagreement in Israel, I suggested that a political expression relating to this matter deserves the full protection granted to political expressions in Israel’s constitutional law. In my dissent, I also noted that the Boycott Law intervenes in the “market of ideas” in favour of one of the competing opinions – the current administration opinion which is supportive of the settlements. Supporters of the settlements who would wish to boycott those who oppose the settlements would not be subject to the Boycott Law, as this hypothetical boycott would not be directed against Israel or an “area” under its control. Therefore, I concluded that the Boycott Law imposes a content based restriction on political expression. This “viewpoint discrimination” of one opinion over the other imposes a direct and serious violation of the right to freedom of political expression. This violation is extremely severe where the favoured opinion is in fact the opinion of the Government.

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According to Israel’s constitutional law, in order to justify these severe violations of constitutional rights, the social benefit created by the law must outweigh the damage caused by it. And indeed, as I stated in my opinion, there are several important public interests that the law promotes. The first and most important among those interests is the State’s right to defend itself. This interest was first recognized by the Israeli Supreme Court in the famous 1965 case of Yardor v. Chairman of Central Elections Committee11, where the Supreme Court adopted the doctrine of the “Defensive Democracy” – which justifies limiting basic rights (in Yardor’s case, the right to be elected) where the exercise of that right is aimed against the State itself or against its democratic nature. Nevertheless, I also noted that the gravity of this interest of Defensive Democracy varies according to the nature of the particular boycott in question. While preventing a boycott against the State itself is consistent with the State’s right to defend itself, this is not the case in regard to a boycott aimed only against the settlements in the West Bank. This latter type of boycott addresses an internal Israeli political issue and cannot be regarded as a protest against the existence of the State as such. These conclusions could have led me to rule in favour of annulling the Boycott Law as unconstitutional. Nevertheless, I believed that it is possible to significantly reduce the law’s negative impact through means of interpretation, in a way that would allow the law to pass the constitutional challenge. I also suggested that such a solution is preferable because it limits the extent of judicial interference with the Knesset’s legislation and thus assigns appropriate weight to the principle of separation of powers. Thus, I proposed an interpretation that was, in my view, consistent with the law’s language and purpose. My idea was to interpret the definition of boycott in the Boycott Law narrowly, so that only one type of boycott would be able to cross the threshold and “enter” into the law – a comprehensive boycott against the State of Israel as such. Consequently, a call to boycott territories controlled by the State, or the settlements in the West Bank, which are not accompanied by a call for comprehensive boycott of the entire State, would not come within the scope of the law. My proposal was backed by Justice S. Jubran. Justice U. Fogelman joined my view regarding the unconstitutionality of the Boycott Law under its “orthodox” interpretation. Nevertheless, he did not agree with my proposal and argued that the entire law should be canceled by the Court. The fourth dissenting Judge, Justice N. Hendel, presented an intermediate position. He concluded that the “civil” track of the Boycott Law should be annulled while the “administrative” track should be upheld. He explained that the “civil” track in fact “privatized” the enforcement of restrictions against boycotts, in a manner that is expected to create a significant chilling effect on political expression. In contrast, Justice Hendel held that the “administrative” track enjoyed the “benefit” of being imposed by the State and not by individuals. Therefore, imposing of the restrictions set forth in this track is subject to the administrative 11

EA 1/65, 19(3) PD 365 (1965).

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law, which mandates reasonable, fair and equal enforcement. Therefore, in justice Hendel’s view, the administrative track was constitutional and should not be annulled. Eventually all four Justices of the minority decided to join their colleagues of the majority and to strike down section 2(C) of the Law, which allowed for the imposition of punitive damages. It should be noted that this is the first time that our Supreme Court has canceled a statute of the Knesset (or actually a provision of a statute), due to the fact that it infringes the constitutional right of freedom of speech. I would like to thank you all for enabling me to present this new development in Israel’s Constitutional Law. – 5 L9BMr8=DBL65AL;8K9;84JL8 – N94JL8

The Abuse of Human Dignity – Difficulties in Using the Human Dignity Topos Taking the Bio-Ethics Debate as an Example1 By Eric Hilgendorf

I. Introduction The concept of “human dignity” plays a unique role in the German constitutional order. Human dignity protection was put into our constitution in order to establish the standard of an intrinsic and inalienable right which rose above the pro and contra debate of disparate political and moral positions, giving it a special sanctity, and excluding it absolutely as a subject for debate. It is generally agreed that the constitutional protection of human dignity laid out in Article 1 (1) of the German Federal Constitution (Grundgesetz (abbreviated as “GG”)) was a reaction to the period of NationalSocialist dictatorship under Hitler, which openly sought to destroy individualism and suppress the fundamental rights of individuals for the benefit of what the adherents of that regime referred to as the ‘general good’. The Nazis said: “the individual is nothing, the country is everything.” Today, Article 1 (1) GG read together with the so called “eternity clause” in Article 79 (3) GG, establishes in Germany a central core of fundamental rights protection for the individual against the actions of the State and private parties. Contemporary bioethical discussion, however, uses the concept in ways that go far beyond the limited scope of protection of the right enumerated in the German Constitution.2 In current debate on issues such as genetic engineering, germ-line therapy, reproductive medicine, and similar themes, the concept of human dignity has been inflated by proponents of various positions in order to show the superiority of their positions. In fact, the use of widely disparate definitions of human dignity has grown to such an extent that many authors now consider human dignity to be a passe-partout for a wide range of arguments and concepts broadly related to human rights policy. It 1 This article was translated from German into English by Roger Fabry, B.A., on the basis on an earlier translation by Michael P. Sly, B.A. This text is an updated version of a text originally published in German in 1999 (Jahrbuch für Recht und Ethik Bd. 7, S. 137 – 158). 2 For a detailed discussion of the legal and constitutional doctrines of Human Dignity, see Christoph Enders, Die Menschenwürde in der Verfassungsordnung: Zur Dogmatik des Art. 1 GG, 1997; Aharon Barak, Human Dignity. The Constitutional Value and the Constitutional Right, 2015.

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must be obvious, and should hardly need to be stated, that these authors’ often highly emotional arguments are downright damaging to the concept of human dignity.3 Human dignity is being devalued by excessive usage. In the worst scenario, the continuous invocation of human dignity might at some point cause human dignity to become associated more with caprice and humbug, than with law and reason. In our contemporary understanding, the term “human dignity” plays a role well outside the context of establishing rules to prevent the rise of future totalitarian regimes. It is one of the very few fundamental values that is widely accepted in German society, and it is indispensable as a fundamental value in secular western democracies. The wide-sweeping support this concept has received since it was enshrined in the German Constitution in 1949, has, regrettably, been due to a large degree to the widely disparate ways the concept has been defined. As its range of definitions expanded, everybody could find a definition they were able to identify with. Its unifying effect, however, disappears very quickly when specific questions are raised relating to the permissibility of gene therapy4 or stem-cell research, which human dignity is supposed to give answers to. This problem highlights one of the fundamental weaknesses of the human dignity topos: if you give the term even a reasonably precise definition, it risks losing its unifying effect because some people may not be able to identify with it. If you don’t define it precisely, it retains its unifying effect, but at a huge price because in terms of practical application, it becomes almost useless. The result is that every organisation’s legal policy program can use its particular member’s definition of what human dignity is. It is generally agreed that constitutional conceptions of human dignity in Europe derive principally from two main sources: Christian ideas in natural law and Enlightenment philosophy. Of course, one should not overlook the fact that well into the 19th century the Church fought vigorously against the idea of human dignity.5 The most important philosophical ideas relevant to the constitutional protection of human dignity come from the Enlightenment Era, and can be traced back to the Renaissance and

3 See also Günter Dürig, in: Theodor Maunz/Günter Dürig, Grundgesetz-Kommentar, 1958, Art. 1 (1) paras. 16 et seq., who warns of the inflationary use of the term “Human Dignity”. For more recent accounts, see Dieter Birnbacher, Mehrdeutigkeiten im Begriff der Menschenwürde, in: Aufklärung und Kritik, Sonderheft (special issue), 1/1995, pp. 4 – 13; Tatjana Geddert-Steinacher, Menschenwürde als Verfassungsbegriff, 1990, pp. 15 et seq.; Ulfried Neumann, Die Tyrannei der Würde. Argumentationstheoretische Erwägungen zum Menschenwürdeprinzip, Archiv für Rechts- und Sozialphilosophie 1998, pp. 153 – 166. 4 For an early overview of the novel opportunities and uses opened up by gene technology see: Lee M. Silver, Das geklonte Paradies. Künstliche Zeugung und Lebensdesign im neuen Jahrtausend, 1998. 5 Horst Dreier in Horst Dreier (ed.), Grundgesetz-Kommentar, Vol. 1. (Art. 1 – 19), 3rd ed., 2013, Art. 1 (1) para. 6 et seq.; see also the conciliatory treatment by Otfried Höffe, Die Menschenrechte in der Kirche, in: Anselm Hertz (ed.), Handbuch der christlichen Ethik, Vol. 3, 1993, pp. 236 – 255, 239 et seq.

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to the stoic philosophy of antiquity.6 The historical development of the basic ideas from which human dignity developed, was, therefore, anything but uniform, and unresolved conflicts once again have risen to the surface during the heated debates on gene technology and other newly developed technologies. In the following essay, I would like to examine whether human dignity is a useful concept for resolving bioethical questions. The definition of human dignity which has been most widely used in public discussion on gene technology refers to a violation of human dignity: instrumentalisation of a human being infringes on his human dignity. If we look more closely at this definition, it becomes clear that it is not a sound definition. It is not even able to cover violations of human dignity which are clear using a widespread conventional understanding of the term. I will therefore try to work out a modified definition, in which human dignity is defined as an ensemble of subjective rights. The definition proposed here is sufficiently precise to counteract “human dignity’s” decline into a clichéd term. The new definition links up with universal human needs, and, in doing so, it ensures that human dignity will retain its unifying function. In the arguments which follow, I will seek to explain, criticize, and clarify what is meant in our culture when we say “human dignity.” A more detailed definition of this concept is an issue for moral or legal-philosophy and cannot be discussed in detail here. It is possible that in the context of moral philosophy or legal philosophy, the link from values and norms to basic human needs is the strongest form of link that can be argued on a rational basis. In this respect, I would venture to suggest that the concept developed here might very well also find adherents in cultures well removed from our own.

II. Human Dignity of the Individual vs View of the Nature of Mankind New technologies, which people are still unaccustomed to, such as germ-line therapy are often branded by opponents as human dignity violations.7 Yet in doing so, what is often not discussed is whose dignity is supposed to have been violated8: 6 Dreier, in: Dreier (ed.), Grundgesetz Kommentar, op. cit. (fn. 5), Art. 1 (1) para. 2 et seq.; Hasso Hoffmann, Zur Herkunft der Menschenrechtserklärungen, Juristische Schulung 1998, pp. 841 – 848. 7 Cf. for example. Peter Häberle, Die Menschenwürde als Grundlage der staatlichen Gemeinschaft, in: Joseph Isensee/Paul Kirchhof (eds.), Handbuch des Staatsrechts, Vol. 2, 3rd ed., 2003, pp. 317 – 367 (p. 362 para. 92); Philipp Kunig, in: Ingo von Münch/Philipp Kunig, Grundgesetz-Kommentar, Vol. 1, 6th ed., 2012, Art. 1, para. 36. The practice of stem-cell research is forbidden in Germany under Article 5 (I) Embryo Protection Act (Embryonenschutzgesetz – ESchG). 8 Birnbacher, Mehrdeutigkeiten, op. cit. (fn. 3), 1990, pp. 9 et seq.; Neumann, Tyrannei der Würde, op. cit. (fn. 3), 1998, p. 156.

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the dignity of a cell being experimented on? The dignity of an individual (born or unborn), whose cell is being experimented on? Or, if we are talking about an experiment on a single cell, taking place in vitro in some laboratory, the dignity of the individual who will or would have developed from that single cell? The dignity of his progeny? Or perhaps even the dignity of the observer of the gene technology intervention? Or could it even be the dignity of mankind as a whole, which is injured by germ line therapy on the cell? It seems almost impossible to discern a violation of human dignity where the genetic manipulation of an isolated cell takes place. Similarly, it would be very hard to interpret the germ line manipulation of a rational, lucid human being, as a human dignity violation, in so far as the person consented to the procedure. It is therefore not surprising, that nearly all attempts seeking to establish that a germ line manipulation was a violation of human dignity point to subsequent generations or mankind as a whole as the victim(s).9 This, however, contradicts the traditional understanding in German constitutional law of who has rights, according to which fundamental rights are the subjective rights of individuals as protection against State actions.10 Nevertheless, there are also lines of argument in the philosophical literature suggesting that groups, rather than individuals, may be the bearers of rights.11 In modern constitutional theory the objective legal function of fundamental rights has become widely accepted. The idea is that fundamental rights create an objective system of values12, which goes beyond guaranteeing the fundamental rights of the individual. This approach makes it possible in constitutional theory to understand human dignity as a collective right rather than an individual one. De facto human dignity has assumed the position that was ostensibly held in the 1950s and 1960s by the much invoked topos of “western view of human nature” (Menschenbild des Abendlandes) – a topos which in hindsight seems to have been rather badly overused. Such a broadening of the term human dignity is by no means illegitimate from the outset. Nevertheless, one should not overlook the fact that broadening the definition would almost necessarily mean that the special position of this right would be attenuated. The strong personal emotions that have always accompanied discussions of 9

See Ernst Benda, Erprobung der Menschenwürde am Beispiel der Humangenetik, in: Rainer Flöhl (ed.), Genforschung – Fluch oder Segen?, 1985, pp. 205 – 231 (210); Wolfram Höfling, in: Michael Sachs (ed.), Grundgesetz-Kommentar, 7th ed., 2014, Art. 1 para. 22 et seq. 10 See Thorsten Kingreen/Ralf Porscher, Grundrechte. Staatsrecht II, 32st ed., 2016, para. 81 et seq. 11 Cf. for example Kant’s alternative formulation of the categorial imperative in Grundlegung zur Metaphysik der Sitten, in English: “Act in such a way that you treat humanity, whether in your own person or in that of another, always at the same time as an end and never merely as a means”, Grounding for the Metaphysics of Morals, 1993 [1785] Ellington (tr.), 3rd ed., p. 43; cf. also Kant, Metaphysik der Sitten, where he discusses punishments; in English translation: “[…] they also make a spectator blush with shame as belonging to a species that can be treated that way.” The Metaphysics of Morals, Gregor (tr.), 1996, Ak 6: 463. 12 Kingreen/Porscher, Grundrechte, op. cit. (fn. 10), para. 100 et seq.

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human dignity are fueled by the rejection of certain classes of violations of human dignity as unspeakable acts, namely torture, genocide, and slavery. In contrast, other kinds of actions or conditions which exclusively contradicted our view of human nature, were never opposed so vehemently or so unanimously.13 What we see, rather, is that broad space existed for relativising, differentiating or mitigating arguments to be presented and take hold; often defensive attitudes even gave way over time as people became accustomed to the other position. Our view of human nature, together with the ideas we associate with this view, is determined by culture and is subject to historical change over time. Galileo’s persecution by the Catholic Church is a perfect example: Not even the immense power of the Church was enough to prevent the emergence of Galileo’s new scientific conception of the world and mankind. In contrast, the idea of an “unchangeable” human nature corresponds to our “normal” understanding of the human dignity of the individual, regarding its conceptualization as unchanging or at least to a large extent as timeless and the same in all cultures. This notion, however, was not able to survive the closer scrutiny of historians.14 In any case, the extension of the topos of human dignity from individual right to collective right should, based on grounds of intellectual honesty and argumentative fairness, be transparent and it should be adequately explained.15

III. The Prohibition of the Instrumentalization of Human Beings and Its Shortcomings In striking contrast to the inflationary, and almost random use of the term human dignity, we see the commonly given, stereotypical definition, according to which (based on a phrase taken from Immanuel Kant) human dignity is violated where a human being is not treated as an “end in himself”, but rather as a “means to an end”16. Similar terminology has found its way into the legal discussion. Thus Günter Dürig said: “Human dignity is violated when a concrete individual is treated like an object, when he is treated simply as a means, when he is degraded into a fungible thing”17. This definition looking at the objectification of a human being, has also prevailed, albeit not entirely, in the jurisprudence of the German Federal Constitutional

13 For borderline cases in the field of reproductive medicine, cf. Dieter Birnbacher, Gefährdet die moderne Reproduktionsmedizin die menschliche Würde?, in: Anton Leist (ed.), Um Leben und Tod, 1990, pp. 266 – 281 (pp. 275 et seq.). 14 See fn. 6. 15 For more information on “persuasive” techniques such as the ‘expansion of the positive meanings of terms’, see Eric Hilgendorf, Moralphilosophie und juristisches Denken, Archiv für Rechts- und Sozialphilosophie 1996, pp. 397 – 415 (pp. 402 et seq.). 16 On Kant’s formulation, see fn. 11. 17 Dürig, in: Maunz/Dürig, Grundgesetz Kommentar, op. cit. (fn. 3), Art.1 para. 28.

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Court.18 In the bioethical debate, reference is often made to a prohibition of instrumentalization, which of course is terminology most probably influenced by Max Horkheimer’s work on instrumental reason19. In my argumentation below, I will show that Dürig’s definition based on objectification actually confounds various different factors. The three terms he uses to describe a violation of human dignity, i. e. “object,” “mere means,” and “fungible thing”, are certainly not synonymous, and, if used literally, do not refer to the same basic constellation of facts. The prohibition on instrumentalisation, which is often equated with the objectification of a human being, is not suitable for revealing unambiguous violations of human dignity which fit the generally accepted definition. It certainly could not be used for assessing new kinds of violations. 1. Vagueness of the Concept Itself Whoever uses Dürig’s object definition of human dignity as a catchword to set his own legal policy institutions in a better light, not because of any supposed special philosophical dignity of the expression, but in order to make use of a clearly defined concept, confronts the problem that the term “object”, which is an integral part of this definition, is actually exceptionally vague. For example, to use a rather banal example, it is normally possible to make another person the object of one’s hopes or wishes, without calling his human dignity into question. In philosophical discourse “object” is used primarily to mean the opposite of “subject”. Thus Kant said: “an object is, however, a concept in which the manifold aspects of given intuition are united”.20 In contemporary philosophy demands are sometimes made for the subject-object dichotomy in modern philosophy to be overcome. Nevertheless, it should be clear to the reader that all of these different ways of using the term “object” have nothing at all to do with human dignity. Even the German Federal Constitutional Court has spoken out against an uncritical use of the object formula. In its judgment in Wiretapping (Abhörurteil) it warned that “General formulas such as the one saying that man should not be degraded into a mere object of state authority, can only indicate the direction we should take, when examining whether human dignity has been infringed. Man is not infrequently treated as a mere object, not only of circumstances and societal development, but also of the law, insofar as he must submit to it without regard to his interests. A violation of

18

BVerfGE 9, 89 (95); 45, 187 (228); 50, 166, (175); 72, 105 (116). Max Horkheimer, Zur Kritik der instrumentellen Vernunft. Aus den Vorträgen und Aufzeichnungen seit Kriegsende, Alfred Schmidt (ed.), 1947. For similar arguments by Herbert Marcuse, One Dimensional Man, 1966, pp. 156 et seq. See also Hermann Lübbe, Instrumentelle Vernunft. Zur Kritik eines kritischen Begriffs, in: Perspektiven der Philosophie, Vol. 1, 1975, pp. 111 – 139. 20 Kritik der reinen Vernunft, Weischedel-Werkausgabe, Vol. III/1, p. 139 (my translation). 19

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human dignity cannot be founded solely on being treated as an object.”21 To restate it, a violation to human dignity does not take place simple because a human being is treated as an “object”. 2. Human Dignity and “Instrumentalization” In order to explain intuitions associated with the concept of object, attention is primarily focused, particularly in the popular literature, on the means-end topos, equating a violation of human dignity with an “instrumentalisation” (or functionalisation22) of the supposed victim. This understanding gets support from the second element in Dürig’s object definition: the degradation of a human being into a “simple means to an end”. Yet this reading also raises serious misgivings: One argument against the instrumentalization topos is that the existence of a means-ends relationship does not depend on objective circumstances, but rather it depends exclusively on the goals in the mind of the person performing the act in question. Whether a person uses another person as a mere means or whether the interaction with the other person in itself is the sought after end, depends on the intentions of the actor. An equation of “instrumentalization” with a violation of human dignity would lead, therefore, to a subjectification of human dignity (and the protections it affords).23 But for the victim as a rule, however, it isn’t really important whether the other person wants to use him as a “means to an end”, as long as he objectively suffers no injury. Evil intentions leave human dignity unaffected.24 For this reason alone, one has to say that talk about the degradation of the victim into a “means to an end”, does not seem particularly helpful or informative. Taken literally, the topos of instrumentalization as the use of another human being as “mere means” is anyway much too narrow (a way to define a violation of human dignity). It fails to include in its scope of protection some of the most important and generally accepted violations of human dignity. Let’s look at the terrible atrocities committed by the Nazis and their anti-Semitic followers: if, in their fanaticism, they regarded the torture and extermination of every single Jew as an “ultimate purpose” or “end in itself”, would that mean that the human dignity of the victims was not violated when the Nazis, putting their criminal delusions into practice, committed mass murder? There is good evidence that for many of the highest ranking Nazis the extermination of European Jewry was indeed the ultimate purpose of their plans and 21

BVerfGE 30, 1 (25 et seq.). This means the reduction of a human being to a particular single function. 23 Similar approaches using subjective interpretations can be found in BVerfGE 30, 1 (26); 47, 239 (247 et seq.). 24 This is not to deny that the imperative that Human Dignity should not be infringed is closely connected with the idea that we should treat others with regard (or even respect); it does not follow, however, that simply not treating a person with respect would necessarily qualify as a violation of human dignity. 22

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actions.25 Are we to suppose that these crimes did not violate the human dignity of the victims? To affirm that would be manifestly absurd, especially if we recall that the Holocaust was one of the most important reasons for placing our affirmation of the inviolability of human dignity as the first article of the new German Federal Constitution in 1949.26 A defender of the established instrumentalization topos could point out that Kant’s demand that we always treat others as an end, never as a mere means, must contain something more than a simple prohibition of instrumentalization. One could argue, for example, that Kant’s demand was not to use another person as a means to an end; nevertheless human dignity would only be violated where one person used another exclusively as a means in order to achieve his own ends. This interpretation, however, does not help us to resolve the problems we had with the Nazi example above. The reason is that the torture of the victims was not a means to achieve any sort of end. Torture of holocaust victims was neither a mere means nor indeed any sort of means, rather it was the ultimate goal of the perpetrators. One could hit on the idea that it might be possible to find the “instrument-alization” of the torture victim in the act of torture itself; so to speak the torture victim would then be the means to his own torture. But this approach confuses the means with the object of an action. Take for example a carpenter. A carpenter uses a hammer to pound and set a nail into a wall; he uses the hammer as a mere means aimed at the greater goal of setting a nail into the wall. It would be nonsense to say that the nail had served a purpose in its own pounding or setting into the wall. So it is with our example of torture; the torture victim is not the means of torture, but rather he is the victim, i. e. the act’s object. This example is analogous to medical interventions like surgery, where the patient is not the means to his own healing but rather the person for whom the surgery is done. The relevant difference here between torture and medical treatment is not the means-end structure of the event, but rather the factual effect the action has on the affected person. In order to save Dürig’s object definition in the interpretation of the prohibition of instrumentalization, one could interpret the actions of the torturer in such a way that carrying out the act of torture was a means (and only one of several means) for the torturer to realize his criminal intentions, namely torturing and exterminating Jews. Of course this alternative strategy has its price: As every action which is a voluntary behaviour can be broken down into a volitional element and a goal element, the result of every action can be interpreted as a means, in order to achieve some specific objective. If interpreted this way, Dürig’s object principle becomes extremely broad and virtually arbitrary. For example, giving a bouquet of roses to a beloved person to achieve the goal of making that person feel better would qualify as using that person as a

25 It has been established that the destruction and murder of European Jewry continued even after the Nazis knew that effectively the war had been lost. 26 Dreier, in: Dreier (ed.), Grundgesetz-Kommentar, op. cit. (fn. 5), Art. 1 (I) para. 21.

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mere means to achieve one’s own intention. But would such an act be a violation of the human dignity of the recipient of the roses? In his writings Kant actually highlighted two parallel imperatives in respect of how human beings should treat each other. On the one hand, we find the prohibition on using another person as a “mere means to an end”. On the other, we see that all human beings, both those performing actions, as well as all others, must treat a fellow human being “always as end in itself”27. It is frequently overlooked that Kant used the term “end” (Zweck) in a way that is different from the way the word is commonly used today. Here “end” means the purpose or aim that is sought when an action is performed. This purpose normally consists of a change in the state of the thing which is acted upon. If one uses the word this way, then things, people, and other entities cannot be “ends”; the end which is sought can only be a change in the state of these objects. Nevertheless it is not sensible to replace Kant’s “end” with an expression like “intended effect”. This shows that Kant used the word “end” in a different sense. The most plausible interpretation seems to me to be that Kant, through his purpose formula, wanted to demand respect for the individual intrinsic value of every human being. Treating a human being as an “end in itself” or “ultimate purpose” would therefore mean respect for the intrinsic value of each person. From this perspective, torture is not a violation of human dignity because the victim of torture is used as a “mere means” to achieve some further purpose, but rather, because the torture infringes upon the inviolable intrinsic value of the victim.28 At this point it must not be overlooked, however, that the expression “intrinsic value” is still in need of clarification. In section IV of this paper I will propose that the intrinsic value of man be equated with an ensemble of subjective rights, including the right to be free of extreme pain. This allows us to establish that torture in the above illustration was an unambiguous example of a violation of the human dignity of the torture victim.

27

The complete formulation is cited in fn. 11. Of course other interpretations of Kant are also conceivable. The explication of the ban on instrumentalization by Kant himself is particularly interesting, in which he considers the possibility of consent of the person involved: “[…] as to the necessary or owed duty toward others, the one who has it in mind to make a lying promise to another will see right away that he wills to make use of another human being merely as means, without the end also being contained in this other. For the one I want to use for my aims through such a promise cannot possibly be in harmony with my way of conducting myself toward him and thus contain in himself the end of this action.” Grundlegung zu Metaphysik der Sitten 1785, in English, Groundwork for the Metaphysics of Morals, 2002, translated by Allen W. Wood, AK 4, pp. 429 – 430. The central problem of Kant’s own interpretation of the purpose formula is obvious: factually any action may be consented to. The question is not to what action an affected person may consent, but to what he should consent. Kant has not answered this moral question. A second question concerns the utility of the criterion for consent used in order to determine whether human dignity has been violated. If one were to consider any intrusion without consent into the legal sphere of another as a breach of human dignity, which would make the scope of application of Art. 1 GG extremely wide. 28

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In summary, it should be noted that Dürig’s object formula is also not sound as a way of interpreting the prohibition on instrumentalisation. It fails in particular to distinguish cases in which behaviour unambiguously violating human dignity exists, where, however, the effects of the behaviour were not a “mere means to an end”, but rather were the ultimate purpose of the behaviour in question. At first glance the prohibition of instrumentalisation appears to be plausible, but closer examination shows that it is not only vague, but that it can be used in almost any situation. It is therefore unusable as a criteria for or even as a definition of the violation of human dignity. 3. The Object Formula Definition as a ‘Passe-partout’ The object formula is almost never used literally, but rather it is used as a tag, in order to label situations or circumstances which violate human dignity – unfortunately using a profoundly inadequate notion, because by proceeding in this way both human dignity itself as well as the object formula are in fact reduced to empty phrases, confirming criticism that has been proffered again and again in the literature29. Schopenhauer stated it clearly: “This proposition by all Kantians, ‘Man must always be treated as an end, never as a means’, certainly sounds significant, and is therefore a very suitable proposition for those who like to have a formula which saves them all further thought; but looked at in light, it is an exceedingly vague, indefinite assertion, which reaches its aim quite indirectly, requires to be explained, defined, and modified in every case of its application, and, if taken generally, is insufficient , meagre, and moreover problematical.”30 That Schopenhauer was right, is also demonstrated by the forced but vigorous attempts to qualify therapeutically motivated genetic interventions in the germline as not being consistent with human dignity using the object formula: there is absolutely no reason why an individual, who is receiving medical treatment, should be viewed as a “mere means”. To the contrary, this situation is readily comparable with traditional treatment interventions.31 The situation is completely different when genetic interventions are undertaken in order to breed human beings with certain characteristics. In such cases it is quite reasonable to say that the individual, whose genes are being experimented on, is being used for “breeding purposes”.

29 See Norbert Hoerster, Zur Bedeutung des Prinzips der Menschenwürde, Juristische Schulung 1983, pp. 93 – 96. 30 Arthur Schopenhauer, The World as Will and Representation, Vol. 1, 1819, Richard Burdon Haldane & John Kemp tr., ca. 1880, reprinted 2015, p. 450; translation of Die Welt als Wille und Vorstellung, 1818, Vol. 1. 31 Note that traditional practices (or ‘means of healing’) do not only benefit the affected individual but could also benefit third parties (such as offspring).

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Another problematic area is human cloning, which Ulfrid Neumann tried to qualify as contrary to human dignity using the object formula.32 Regardless of what the real purposes behind the cloning might be, as a matter of fact cloning would be performed in order to produce human offspring “with one specific genetic program.” According to Neumann, this would mean that “the entire existence of a human being would derive from the clone’s promised benefit to another person, having been created with the genetic makeup of that other person”. The clone would be “used exclusively as a means to someone else’s ends.”33 I only found this argument persuasive to a limited extent. There are certainly cases in which the object formula could not be used to criticize cloning as a violation of human dignity. This can be illustrated with a standard textbook example: A child is killed in an accident. The parents of the dead child have cells taken from the deceased child in order to create a genetically identical child by cloning, which the parents will raise as their own. It can be readily conceded that such a course of action is morally highly problematic, and conjures up deep seated fears and frightening images. It is unclear, however, why the second child should be a “mere means” in the sense of the object formula. Quite to the contrary, the child’s very existence is the sought after purpose and product of the cloning procedure (natural reproductive methods may occasionally also serve other goals than the conception of a child). In our clone hypothetical, the cloning was done for the sole purpose of creating the child. In such a case Kant’s formula could not be used to construct an argument that the human dignity of either the dead child or the clone had been violated.

4. Human Dignity and the Intrinsic Value of Man It appears to me that the third element of Dürig’s formula, under which human beings shall not be degraded into fungible things, is sounder and better suited for explaining how human dignity has been traditionally understood. Kant, who we could almost say was the godfather of the statement, commented that “[i]n the realm of ends everything has either a price or a dignity. What has a price is such that something else can also be put in its place as its equivalent; by contrast, that which is elevated above all price, and admits of no equivalent, has a dignity.”34 Nevertheless, the aspect of irreplaceability or uniqueness of human dignity, by itself, is insufficient to cover all unambiguous violations of human dignity. For example, if a dictator tortured to death the last members of a resistance group in the basement of his palace, he is surely not indifferent as to the identities of his victims. It would not be possible to replace them with other people because they are being killed 32

Neumann, Die Tyrannei der Würde, op. cit. (fn. 3), p. 160. See also Johann S. Ach/Gerd Brudermüller/Christa Runtenburg (eds.), Hello Dolly? Über das Klonen, 1998. 33 Neumann, op. cit. (fn. 32). 34 Groundwork for the Metaphysics of Morals, A. Wood tr. & ed. (2002) [1785], op. cit (fn. 29), p. 52.

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because of who they are. What is being violated here, however, is not the uniqueness of the victims, but rather their intrinsic value as human beings. It is from this perspective, and no other perspective, which has anything to do with “degrading them into an object”, “using them as a mere means”, or “treat them like fungible things”, which was intended, but was so badly expressed. But what characterizes the “intrinsic value” of each human being? How does it express itself? In order to answer these questions and to adequately explain historically the issues discussed in the debate on “intrinsic human value,” it seems to be expedient to explain the concept using an ensemble of individual subjective rights. Leaving the object formula now, a detailed exposition of an Ensemble Theory of Human Dignity is set out immediately below.35

IV. The Ensemble Theory of Human Dignity 1. Human Dignity as a Collection of Subjective Rights The following elements may constitute the core of a better conception of human dignity: (1) It is a violation of human dignity to withhold from an individual the necessities of life such as food, air, shelter, etc. […] (The right to material existence). (2) It is a violation of human dignity to deprive an individual of his basic liberty (The right to autonomous self-development). (3) It is a violation of human dignity to submit an individual to severe and ongoing pain of either a physical or psychological nature (The right to the freedom from cruel or unnecessary treatment). (4) It is a violation of human dignity to intrude into the most personal areas of a person’s life or to disclose highly personal information about an individual to third parties (The right to privacy). (5) It is a violation of human dignity to seriously or permanently impair or alter the thought processes of an individual through the use of drugs or “brainwashing” (The right to intellectual integrity).

35 See also Birnbacher, Mehrdeutigkeiten, op. cit. (fn. 3), p. 6; Höfling, in: Sachs, Grundgesetz-Kommentar, op. cit. (fn. 9), Art. 1 para.19; Adalbert Podlech, in: Kommentar zum Grundgesetz für die Bundesrepublik Deutschland (Reihe Alternativkommentare, Vol. 1 (Art. 1 – 37), 2nd ed., 1989, Art 1 (1) para. 17 et seq. See also Werner Maihofer, Rechtstaat und menschliche Würde, 1969, pp. 56 et seq., who lists the elements of human dignity as individual freedom and security, social welfare and justice, as well as political self-legislation and electoral participation.

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(6) It is a violation of human dignity to deny an individual of his civil rights, including his right to defend himself in a court of law (The right to equality before the law). (7) It is a violation of human dignity to humiliate an individual in any of the aforementioned ways to such an extent that he is deprived of his minimum self-respect (The right to a minimum level of respect). Under the Ensemble Theory, human dignity is not defined only in the negative (as infringements), but also in a positive way as consisting of a range of subjective rights. I regard this approach as both concrete and sophisticated enough. It is intended to bring the discussion down to earth, i. e. to snatch human dignity out of legal philosophers’ heaven of concepts [an allusion to Im juristischen Begriffshimmel (ca. 1880), a parody by Rudolph v. Jhering, a famous German legal scholar – tr.] and place it in the real world of constitutional law.36 Rights (1) to (3) as well as rights (6) and (7) correspond to the conception of human dignity which developed historically. Notions of human dignity which include a right to privacy37 or a right to intellectual and moral integrity are of more recent origin. There is an explanation for this: these kinds of rights only make sense where technology has developed to the point where it can be used effectively to intrude into the most private areas of life or indeed even into the psyche of other persons. The right to a minimum amount of respect under right (7) represents a residual category. Both of the elements in it – extreme humiliation and deprivation of self-respect – can be seen as alternatives. The existence of a case of extreme humiliation is determined by the prevailing standards in a given society. In contrast, undermining the self-respect of an individual depends on the subjective sensibilities of the affected person. Aviolation of human dignity would also exist if someone did not lose his selfrespect after being subject to extreme humiliation, or where the action would be perceived as harmless by a normal man on the street, but would cause an extremely sensitive person to lose his self-respect.38 36 Enders seems to want to go in the opposite direction in his impressive study: Die Menschenwürde in der Verfassungsordnung, op. cit. (fn. 2). Both the sublimation of human dignity to a hardly well defined “subjective human quality” of “being able to assume duties or make committments” (p. 501) or equating human dignity with “the legal capacity of a person as a human being” (p. 503), reduce the concrete protection afforded by Art. 1 (1) GG; see also ibid., Die Menschenwürde und ihr Schutz vor gentechnologischer Gefährdung, Europäische Grundrechte-Zeitschrift 1986, pp. 241 – 252. 37 BVerfG (E 65, 1) derives the right of informational self-determination as part of the general right of personality from Art. 2 (1) GG read together with Art. 1 GG rather than solely from Art. 1 (1). 38 Many of the most controversial cases of real or alleged violation of human dignity today involve the right to a minimal amount of respect. This also applies to the still unresolved question of whether the human dignity of women working in so-called peep-shows is violated (see BVerwGE 64, 274 et seq.; VGH München, Bayerische Verwaltungsblätter 1991, p. 598; see also Kunig, in: von Münch/Kunig, Grundgesetz-Kommentar, Art. 1 para. 36; and GeddertSteinacher, Menschenwürde, op. cit. (fn. 3), p. 89. Criteria (1) to (6) are obviously not rele-

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The legal interests protected by rights (1) to (7) are not only protected by Article 1 (1) of the German Federal Constitution (GG), but they are also protected by other fundamental rights and constitutional principles, for example the right to be free from extreme pain under Article 2 (2) (1) GG and the right to equality before the law under Article 3 (1) GG. It is therefore appropriate under the model developed here to say that all fundamental rights contain some element of human dignity.39 Article 1 (1) GG, which explicitly protects human dignity, is the fundamental right which serves as the foundation for all other fundamental rights in the German Constitution.40 In order to prevent the over-extension of the scope of protection of the guarantee of human dignity, which would reduce its practical effectiveness, it is very important for the courts to restrict their determination that human dignity has been violated to the most extreme cases. The above-outlined rights should only apply when a serious violation of human dignity exists. This would mean, taking the freedom from pain as an example, that human dignity under Article 1 would only be violated where severe pain was inflicted. Other cases involving the infliction of less extreme pain would breach Article 2 (2) (1) but not Article 1 GG.41 By the same token, a simple killing not aggravated by special circumstances, would not violate the human dignity of the victim, but would be a violation of the right to life protected by Article 2 (2) (1) GG.42 2. Consequences and Implications of the Ensemble Theory In contrast to the result which would be obtained using the notion of instrumentalization, under the Ensemble Theory a violation of human dignity also exists even though the individual was not injured by being used as a means toward some further end (i. e. the injury was the end sought). Thus the scope of actions covered by this theory is broader than that of the object formula as it is usually understood. At the same time, it is also narrower to the extent that violations of human dignity are restricted to very specific classes of cases. It is certainly the case that the two theories vant. There is not even a deprivation of self-respect if one assumes that the women are voluntarily engaged in this work. At worst, a case of extreme humiliation could be present, but that seems unlikely to me. 39 Wolfram Höfling, Die Unantastbarkeit der Menschenwürde, Juristische Schulung 1995, pp. 857 – 862 (pp. 861 et seq.). 40 Ekkehart Stein, Staatsrecht, 21st ed., 2010, § 29 III (p. 234). 41 Drawing the line between pain and extreme pain – a prime example of the ever-present “problem of defining limits” in law – can obviously not be done based on abstract distinctions, but must take account of the factual circumstances at hand in the instant case. It is generally acknowledged that cases of the infliction of extreme pain, a violation of human dignity, are not uncommon in the world in which we live. Take for example the practice of female circumcision in some African (and nowadays also European!) countries, or the use of torture to obtain confessions in criminal proceedings in many countries around the world. 42 For a “decoupling” of human dignity and the right to life see Dreier, in: Dreier (ed.) Grundgesetz-Kommentar, op. cit. (fn. 5), Art. 1 (1) para. 48 et seq.

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can be reconciled with each other. Thus human dignity would be violated under either model if one established severe violations of the first or third elements of Dürig’s object formula, namely the degradation of a person to an “object” or treating a person as a “fungible thing”. The Ensemble Theory’s catalogue of seven different violations of human dignity can without difficulty be seen as a specification of the object formula in this sense. There is also common ground between this theory and the prohibition of instrumentalization: the instrumentalization of a human being is conceptually not in itself a violation of human dignity, but based on experience it is the case that human dignity violations would be expected to exist in such situations, where human beings are indiscriminately used as the means to attain the ends of other persons, while at the same time ignoring or even openly disregarding the intrinsic value of these persons. As I see it, one of the chief advantages of this conception of human dignity appears to be that it is not only founded on Europe’s cultural traditions but in addition that it takes account of empirically ascertainable basic human needs.43 A minimum material existence, basic opportunities for self-development, and freedom from the infliction of pain are some necessary conditions for a humane existence. Demands for fundamental equality before the law and personal privacy44 may arise at a higher level of culture, but quite likely the importance of their protection has, in the meantime, been accepted nearly everywhere around the world. Rights (1) to (7) taken all together constitute what is today a universal core of rights for humane societies and this is recognized almost universally. Currently in the context of gene technology and germ line therapy, a question receiving a lot of attention, is whether what would be an unambiguous violation of human dignity is still a violation, where the affected person gives his or her consent to the intervention. In this question focus is obviously on human dignity as an ideal. If human dignity is founded on the notion that human beings have the capacity for selfdetermination (autonomy), so it then stands to reason that freely given consent by a mentally competent adult should be respected. It would follow that in such a case human dignity would not be violated. On the other hand, if one takes the idea of man being created in God’s image as the basis for human dignity, then the free consent of affected person is irrelevant as to whether there is a violation. In the German Constitution, both rationales exist side by side, which explains the controversy as to whether it is possible for a human being to waive the protection of his human dignity 43

Birnbacher, Mehrdeutigkeiten, op. cit. (fn. 3), p. 10. For details on norm justification by recourse to fundamenal human needs in general, cf. Victor Kraft, Über Moralbegründung, in: Eric Hilgendorf (ed.), Wissenschaftlicher Humanismus. Texte zur Moral- und Rechtsphilosophie des frühen logischen Empirismus, 1998, pp. 334 – 376; Ernst-Joachim Lampe, Rechtsanthropologie heute, in: Robert Alexy/Ralf Dreier/Ulfrid Neumann (eds.), Rechts- und Sozialphilosophie in Deutschland heute. Beiträge zur Standortbestimmung, 1991, pp. 222 – 235 (pp. 230 et seq.). 44 Ernst Benda, Die Würde des Menschen ist unantastbar, in: Ernst-Joachim Lampe (ed.), Beiträge zur Rechtsanthropologie, 1985, pp. 23 – 33 (p. 25).

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under Article 1 (1) GG.45 It can however hardly be doubted that the concept of autonomy has greater weight both in legal theory and court jurisprudence than the notion that man was created in God’s image. It therefore follows that where the affected person has given free consent, the question of whether a violation of human dignity has taken place should be answered in the negative, at least as long as the person in question does not loose his oder her capacity for autonomy permanently. In this respect there is no difference between the object formula and the Ensemble Theory. There should however be strict requirements as to whether the affected person has indeed freely given his or her consent, for example where the affected person allowed the intervention because he or she faced terrible economic hardships, that would not qualify as free consent. One should also consider whether an action, which did not violate Article 1 (1) GG, might indeed violate the standards of public decency or morals (under either § 138 German Civil Code (BGB) or § 228 German Criminal Code (StGB)). A public display by a hunger artist (someone who starves himself as a show), as was described by Kafka in his short story of the same name, might not be a violation of the artist’s human dignity, but it would certainly be a violation of public morals.46 One significant advantage of looking to see whether public morals have been violated is that violations to public morals,47 unlike violations to human dignity, are open to balancing. This means, for example, when applied to genetic interventions, that where human dignity was not violated because consent was given, there would still have to be a separate assessment to answer the question of whether a breach of public morals had taken place. 3. The Ensemble Theory and Genetic Engineering If the Ensemble Theory’s criteria are applied to genetic engineering, a violation of human dignity would almost certainly not be established. A person’s right to privacy in the intimate details of his life would, however, be adversely affected if the genetic data about that individual were made public against his will.48 However, neither the study of human genomes nor the utilization of genetic engineering would necessarily violate the rights contained in the Ensemble Theory.49 This would be equally the case where germ-line therapy was used for therapeutic purposes. If genetic interventions were undertaken against the will of an affected person, then principally there would not be a violation of the person’s human dignity but rather a violation of his right to physical integrity under Article 2 (2) (1) GG. 45

Cf. references in Geddert-Steinacher, Menschenwürde, op. cit. (fn. 3), pp. 86 et seq. The same could be said regarding the peep-show problem. 47 This will be discussed in section VI. 48 It seem conceivable that data obtained in the context of medical treatment could be sold to advertising agencies, which would then use the information to specifically target potential customers. 49 From a different perspective, see also, see Dreier, in: Dreier (ed.), Grundgesetz Kommentar, op. cit. (fn. 5), Art. 1 (1) para. 94 et seq. 46

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An extreme case, which is very problematic, is germ line interventions performed for reproductive purposes on living human beings. If such an intervention is conducted against the will of the affected person, this constitutes the offence of causing bodily harm (under § 223 (1) StGB). There would not necessarily be a violation of the person’s human dignity. A violation of the human dignity of subsequent progeny or detached observers would not be possible under the approach presented here. That may be regrettable, but it seems to me that it is the price that has to be paid for defining the concept more precisely, which in turn makes it more acceptable because of increased legal certainty. Then again, not everything which appears morally reprehensible to the individual or undesirable in terms of legal policy, is a violation of human dignity. It is not judges interpreting the Constitution, but rather the democratically legitimated legislature which bears primary responsibility for coping with the excesses of newly developed technologies. Furthermore, it is important to keep in mind that human dignity can be violated both by an action, but also in certain circumstances by an omission, i. e. by failing to act. It can therefore not be excluded that the State, which is under a duty to uphold and protect human dignity, might find itself in a situation where it is compelled to take action.50 Thus under the German Constitution, the State has a duty to ensure a minimum material existence of all individuals living within its borders. Failure to provide this minimum material existence would be a violation of human dignity.51 Furthermore, the State would violate its duties if it hindered the development of a pharmaceutical drug which was an essential treatment for the relief of extreme pain; quite to the contrary, the State would be under a duty to promote the development of the drug, if that was necessary for releasing the drug onto the market quickly.52 The same applies to the question of genetic engineering. This makes it clear that human dignity is not only not standing in the way of genetic engineering, but rather under certain circumstances could actively promote the technology, if through its use alone it was possible to alleviate or eliminate forms of severe human suffering.

V. Bearers of Human Dignity The moment when each individual human life begins and ends has been brought increasingly into question by progress in modern reproductive medicine and by the 50

Constitutional dogma provides such a right in the wording of Article 1 (1) (2) GG, which declares that the state has not only the right to respect human dignity, but also to actively protect it. 51 Dreier, in: Dreier (ed.), Grundgesetz Kommentar, op. cit. (fn. 5), Article 1 (1) para. 155. 52 An interesting problem is whether in such cases the duty to act is actually immune to balancing. Assume, for example, in the case discussed above, that bringing the new pain killer onto the market would almost certainly lead to increased drug misuse with serious deleterious effects (relevant to human dignity), including debility or long term illness in broad sections of the population. In my view, a cost-benefit analysis would almost certainly be necessary. Unfortunately this problem cannot be elaborated on further here.

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development of life-sustaining technologies. A growing need for public debate exists in two areas. The first concerns the protection of human cells, particularly totipotential cells, embryotic cells, and fetal cells. The other area is the protection of the dying. The question of whether and to what extent cell clusters have rights, is not only being raised in the context of human dignity, but also in discussions about the right to life and other rights. What we are dealing with here is one of the most controversial areas in the contemporary bioethics debate. In German case law and legal doctrine we have seen the spread of the notion that human dignity protection must be afforded to all creatures who possess a human genome, and thus have the potential to be born as human beings. Thus the Federal Constitutional Court stated in its famous Abortion l decision:53 “… the Basic Law guarantees human dignity. Where human life exists, it has a right to human dignity; it is not decisive that the bearer of this dignity himself be conscious of it or knows how to preserve it. The potential faculties present in the human being from the beginning suffice to establish human dignity.“54 This approach has been interpreted as saying that potential bearers of human abilities include not only embryos and fetuses,55 but even totipotential human cells. This basically biological approach has raised serious misgivings.56 There is no mandatory rule or principle demanding that the law should orient itself around the presence of a human genome. “Human dignity” is a legal concept. The necessary preconditions for a creature or living entity to be recognized as possessing human dignity are determined autonomously by the legal system. The fact that the term “human dignity” is, in addition, also used in moral and religious contexts, is not irreconcilable with the idea that it is a legal concept, as moral and legal definitions of human dignity can exist side by side and need not be the same.57 Furthermore, as expertise in genetic engineering and reproductive medicine continues to develop, the point will at some time be reached where almost any cell of the human body can used to create a new human being without much effort. It would, however clearly be absurd to say that individual human cells, regardless of their ori-

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BVerfGE 39, 1 (41). http://groups.csail.mit.edu/mac/users/rauch/nvp/german/german_abortion_decision2. html, translation slightly modified. 55 See BVerfGE 39, 1 (37); Christian Starck, in: Hermann von Mangoldt/Friedrich Klein/ Christian Starck, Das Bonner Grundgesetz-Kommentar, Vol. 1, 3rd ed., 1985, Art. 1 para. 14. 56 Reinhold Zippelius, in: Bonner Kommentar zum Grundgesetz, 1950 et seq., Art. 1 (1) and (3), para. 51; also Neumann, Tyrannei der Würde, op. cit. (fn. 3), pp. 156, 159. Dreier, in: Dreier (ed.), Grundgesetz Kommentar, op. cit. (fn. 5), Art. 1 (1) para. 51 refers to a “biologistical- naturalistic fallacy”. 57 Another question is whether domain-specific terminology is useful for such fundamental terms. The reservations expressed above against a biologistic concept of human dignity can also be found in moral philosophy and theology. 54

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gin (for example from a hair root), were bearers of human dignity.58 Focus on the human genome therefore goes much too far, and cannot serve as a suitable criterion for the ascription of human dignity. Another highly controversial issue in the contemporary bioethical debate about the recognition of the existence of rights is the personal nature of the bearer of rights. Proponents of this position argue that focus on generic identity represents an unfortunate form of “speciesism”, which, like racism or sexism, reflects the prejudices of a particular group. From this perspective, the only sensible starting point for the recognition of rights would be some fundamental level of rationality.59 But this position must also put up with the criticism that it fails to recognize the autonomy of the legal system in the recognition of rights. Linking human dignity or a right to life to some sort of rationality is just as compelling as linking it to the existence of a human genome or some other criteria.60 The concept of person is both much too vague as well as too emotionally charged, to be used alone as the criteria for making decisions about who or what shall be a bearer of rights. On the contrary, what has to be clarified first, is exactly who or what qualifies as a “person”. The question involves nothing more than making a list of specific basic characteristics, which can then be argued about at length. Once agreement has been reached about particular characteristics, then they become the defining features of who is a bearer of human dignity or the right to life, without the necessity of taking the route via use of the concept “person”. Logically speaking, it is therefore possible to forego use of the concept of “person” as a connecting factor for rights.61 In my opinion, a third position seems to be the correct one: the legal system is indeed autonomous in the determination of legal rights; however, it does not operate in an arbitrary way, but rather its actions reflect in some way the moral convictions of the legal community. Democratic legal systems, more than others, mirror to a large extent the moral values of their legal communities. The decision on who may be a bearer of the right of human dignity should be congruent with those values. If that is accepted, the human dignity of a dying person is completely unproblematic – of course he is a bearer of dignity. In contrast, the question of whether fetuses, embryos or even single human cells are bearers of human dignity is all the more counter-

58

See also Winfried Brohm, Forum: Humanbiotechnik, Eigentum und Menschenwürde, Juristische Schulung 1998, pp. 197 – 205 (pp. 204 et seq.). 59 An important proponent of this position is Norbert Hoerster. 60 See Eric Hilgendorf, Überlebensinteresse und Recht auf Leben – eine Kritik des Ratioismus, in: Peter Strasser /Edgar Starz (eds.), Personsein aus bioethischer Sicht, 1997, pp. 90 – 108. 61 On the utility of the concept of “person” in the bioethics debate, see also Dieter Birnbacher, Das Dilemma des Personenbegriffs, in: Peter Strasser/Edgar Starz (eds.), Personsein aus bioethischer Sicht, 1997, pp. 9 – 25.

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intuitive, the further we remove ourselves from the “normal case”.62 It can hardly be argued that an unfertilized egg cell would be a bearer of human dignity.63 The answer to the question of who or what may bear human dignity is something we need to decide on. Nobody is going to answer this question for us: on this issue there is neither a commandment from the Almighty, nor a postulate of practical reason, nor indeed any sort of conceptual necessity. The legal system has to come to a watershed decision on this boundary issue using legitimated democratic means.64

VI. Human Dignity and the Postulate of Value Freedom The postulate of value freedom, which is closely associated with Max Weber and Hans Albert, states that every scientist must differentiate clearly between the presentation of scientific facts and the expression of political or moral values. This postulate also applies to the law.65 Legal scholars in particular ought to possess the intellectual honesty not to present private political opinions under the guise of scientific objectivity. Broad concepts like human dignity, which lend themselves so enormously well to interpretation, tempt us, of course, to present our own values in important discussions as if they were objective and predetermined constitutional necessities rather than legal policy proposals. In order to better understand this particular problem one should be aware of what the postulate of objectivity does not demand: no proponent of objectivity has ever denied that science is able to examine values and value judgments. It is also undisputed that the foundation of science, i. e. its basic assumptions and questions, are based on value judgments. The foundation of law in civil law countries consists primarily of statutes (including the Constitution), and it is this which distinguishes the field of law from legal policy making. As statutes are the result of value judgments by the legislature, the foundations of legal science are thoroughly guided by values and determined by values. The problem of objectivity, in the sense it was used by Max Weber, only referred to the question of whether personal value judgments are necessary or even unavoidable in the context of scientific theory. According to modern 62 See Peter Koller, Personen, Rechte und Entscheidungen über Leben und Tod, in: Erwin Bernat (ed.), Ethik und Recht an der Grenze zwischen Leben und Tod, 1993, pp. 71 – 95 (pp. 72 et seq.). 63 As it was proposed by Christian Starck, Die künstliche Befruchtung beim Menschen. Zulässigkeit und zivilrechtliche Folgen. 1. Teilgutachten für den 56. Deutschen Juristentag, 1986, A 17. In order to be consistent, Starck would also have to recognize that individual human sperm cells possess human dignity. 64 It appears to me, without wishing to discuss the issue in too much detail, that the end of the third month of gestation is a reasonable starting point at least for an independent right to life. 65 See specifically Eric Hilgendorf, Wertfreiheit in der Jurisprudenz?, Universitas 1998, pp. 151 – 164.

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theory of science,66 this question must be answered in the negative. This is why proponents of the postulate of objectivity maintain that a scientist teaching as a professor at a university should avoid expressing his own opinions or at the very least make clear when he is making a personal value judgment and when he isn’t. The same must be excepted from a law professor. The very large extent to which one’s own value judgments influence a person’s verdict as to whether human dignity has been violated in a particular instance doesn’t seem to be sufficiently clear to many participants in the bioethical discussion. Quite to the contrary, they attempt to portray their human dignity arguments as if they were purely objective applications of a general principle to the individual case at hand, completely free of all personal judgments. This line of argumentation raises serious concerns as the principle that “human dignity is absolutely inviolable” is absolute and immutable, at least under Article 1 of the German Constitution. Every violation of human dignity is in and of itself unconstitutional.67 Whoever proposes a human dignity argument is implicitly saying that the issue in question is not open to the democratic process of decision making. Inflationary recourse to human dignity stands therefore in stark contradiction to the principle of democratic decision making. Anyone who believes that interventions to the genome and other genetic engineering measures should be decided upon either by the affected person or by a democratically elected legislature, should deplore the widespread invocation of human dignity as an apodictically employed discussion stopper. Laymen interpreting the Constitution who insist that particular medical technologies are, from the start, violations of human dignity, thereby qualifying them as unconstitutional, are ultimately usurping the powers of the legislature, which is not only inconsistent with the basic principles of democratic government, but also violates the principle of separation of powers, one of the most important principles in a state respecting the rule of law. Particularly in the area of bioethics, would-be interpreters of the Constitution ought to act with a bit more self-restraint. It is quite clear that the postulate of objectivity definitely does have political consequences.

VII. Conclusion Human dignity is an indispensable basic value for a secular constitutional understanding. Having said that, what we are dealing with is a principle that is very much open to interpretation, and indeed in need of interpretation, as was shown in the recent controversies surrounding gene technology and other modern technologies. If human dignity is to be kept out of political discussion, thus ensuring its general acceptance, then the narrow understanding of human dignity reflected in Article 1 (1) GG is ap66

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See Karl-Dieter Opp, Methodologie der Sozialwissenschaften, 3rd ed., 1995, pp. 218 et Kunig, in: von Münch/Kunig, Grundgesetz-Kommentar, op. cit. (fn. 7), Art. 1 para. 4.

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propriate. The topos of the “instrumentalization prohibition”, often bandied about carelessly, is not suitable. The essence of human dignity may be found in the recognition of the inalienable intrinsic value of every human being. This intrinsic value may be described as consisting of a number of subjective individual rights, i. e. the right to a minimum material existence, autonomous self-development, freedom from pain, respect for personal privacy, intellectual integrity, fundamental equality before the law, and a minimum level of respect. If these rights are taken as the measure of what human dignity is, then neither gene technology nor other modern technologies are, in themselves, violations of human dignity.

The Israeli Supreme Court’s Jurisprudence on the Right to Equal Treatment: Competing Views About the Role of Judicial Review By Barak Medina*

I. Introduction Most, if not all, modern liberal states can be characterized, at least descriptively, as “bargaining democracies.”1 Not all laws that allocate benefits and burdens, rights and duties, are enacted after the exercise of impartial, principles-based discretion, implementing morally relevant considerations. Rather, lawmaking is at times the outcome of a market-like process of political deals (“logrolling”) between the representatives of special interests. This practice has been the subject of intensive criticism, based to a large extent on Mancur Olson’s prediction that the excessive influence of interest groups on the political process might lead to “the decline of nations.”2 But even if one accepts this critique and believes that “pluralism,” in the sense it is used in politicalscience, is flawed, it is still unclear what role the Constitution in general and judicial review in particular can and should have in imposing on legislators the constraints of public reason. The literature on public choice and the law critically evaluates suggestions to read existing legal doctrines or develop novel ones with this aim in mind. Among them, doctrines of statutory interpretation exist3 suggesting that legislators * Justice Haim H. Cohn Chair in Human Rights Law, Hebrew University of Jerusalem, Faculty of Law. 1 See, e. g., Norberto Bobbio, The Future of Democracy: A Defence of the Rules of the Game, p. 9 (1987, Translated by Roger Griffin). 2 Mancur Olson, The Rise and Decline of Nations: Economic Growth, Stagflation, and Social Rigidities, (1982). See also, e. g., Jerry L. Mashaw, Greed, Chaos, and Governance – Using Public Choice to Improve Public Law (1997); Michael C. Dorf, The Coherentism of Democracy and Distrust, 114 Yale Law Journal, p. 1237 (2005); Robert C. Post, Constitutional Scholarship in the United States, 7 International Journal of Constitutional Law 416, pp. 421 – 422 (2009). 3 See, e. g., Richard Posner, The Decline of Law as an Autonomous Discipline: 1962 – 1987, 100 Harvard Law Review, pp. 761, 774 – 777 (1987); William N. Eskridge, Jr, Politics without Romance: Implications of Public Choice Theory for Statutory Interpretation, 74 Virginia Law Review. p. 275 (1988); Jonathan R. Macey, Promoting Public-Regarding Legislation through Statutory Interpretation: An Interest Group Model, 86 Columbia Law Review, p. 223 (1986). See also Frank Easterbrook, Forward: The Court and the Economic System, 98 Harvard Law Review, pp. 14 – 18 (1984).

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act “behind a veil of ignorance,”4 among others.5 At the same time, the potential use of a “right to equality” in the Constitution, in this context, is underdeveloped. Two somewhat different positions prevail regarding the nature of the constraints imposed on the legislature by the right to equality. While they differ in important aspects, these positions share the view that the right to equality is not infringed merely because legislation is the product of political bargaining. According to one view, the right to equality is narrowly defined as prohibiting the legislature from acting on the basis of prejudice.6 This approach is reflected in the language of most domestic and international Bills of Rights, which define the right to equality as a prohibition “to discriminate on the ground” of some enumerated criteria, such as race, gender, and religion.7 Definitions of this type resemble a deontological definition of discrimination, which focuses on combating systemic subordination and stigmatization of groups identified by the prohibited grounds of discrimination.8 Accordingly, this approach assigns the right to equality only a limited role in regulating bargaining-based legislation. Excluding instances of prejudice, legislation which treats people differently without sufficient moral justification is not considered as infringing the right to equality. 4 See, e. g., Adrian Vermeule, Veil of Ignorance Rules in Constitutional Law, 111 Yale Law Journal, p. 399 (2001); Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 Michigan Law Review, p. 917 (1990). See also Ludwig Van den Hauwe, Constitutional Economics, in: Jürgen G. Backhaus (ed.), The Elgar Companion to Law and Economics, pp. 100, 111 (1999); Viktor J. Vanberg, Rules and Choice in Economics, p. 170 (1994); James M. Buchanan, How Can Constitutions Be Designed So that Politicians Who Seek to Serve “Public Interest” Can Survive?, 4 Const. Pol. Econ. 1 (1993). 5 For a critical discussion of these suggestions see Einer R. Elhauge, Does Interest Group Theory Justify More Intrusive Judicial Review?, 101 Yale Law Journal, p. 31 (1991). 6 See, e. g., Thomas Scanlon, Moral Dimensions, pp. 73 – 74 (2008): “[It is] crucial to racial discrimination […] that the prejudicial judgments it involves are not just the idiosyncratic attitudes of a particular agent but are widely shared in the society in question and commonly expressed and acted on in ways that have serious consequences. [Thus, discrimination is] unidirectional, [applying] only to actions that disadvantage members of a group that has been subject to widespread denigrations and exclusion.”. 7 See, e. g., The International Covenant on Civil and Political Rights, § 26: “[…] the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status” The Charter of Fundamental Rights of the European Union, § 21 (1): “Any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited”, The Canadian Charter of Rights and Freedoms, § 15; and more. 8 For a discussion see, e. g., Sophia Moreau, What is Discrimination?, 38 Philosophie & Public Affairs, p. 143 (2010); Deborah Hellman, Why is Discrimination Wrong?, p. 172 (2008); Ronald Dworkin, Sovereign Virtue: The Theory and Practice of Equality, pp. 11 – 21, 62 – 83 (2000).

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The same is true with respect of the most important competing view, which justifies subjecting legislation to judicial scrutiny only when it adversely affects interests that are insufficiently represented in the political process. According to the wellknown formulation set forth by the U.S. Supreme Court in the Carolene Products decision, footnote 4, “prejudice against discrete and insular minorities may be a special condition [justifying a] more searching judicial inquiry.”9 According to a wellknown modern restatement of this approach which John Hart Ely called the “representation-reinforcing” theory, the judiciary should “devot[e] itself to policing the mechanisms by which the system seeks to ensure that our elected representatives will actually represent.”10 The right to equality is infringed when legislation adversely affects interests that are not sufficiently represented in the political process. The judiciary is not called upon to evaluate, on a case-to-case basis, whether all relevant interests were sufficiently represented. Judicial review is justified only when there exists a concern that systematic deficiencies in political representation were present, i. e., that legislation adversely affects important interests of “discrete and insular minorities.” This view thus removes the “prejudice” requirement from antidiscrimination doctrine.11 The idea that the Constitution aims to ensure that “elected representatives will actually represent” is an endorsement of pluralism. As a result, this approach rejects the idea of using antidiscrimination doctrine as a means for restraining legislation which is the product of political bargaining. The Israeli Supreme Court’s jurisprudence in recent years regarding the right to equality may indicate a different approach. In several decisions the Israeli Court has ruled that legislation which awards benefits to certain groups or individuals, with no morally justified reasons, infringes the right to equality and is thus subject to judicial scrutiny. In a few cases the Court declared such laws invalid. The Court rejected the idea that the scope of the right to equality is limited to instances of prejudice or discrimination against discrete minorities. It ruled that any differential treatment that cannot be justified based on morally valid reasons infringes the right to equality.12 This approach is not excluded by the language of most domestic and international Bills of Rights. These provisions typically include, in addition to a list of prohibited criteria, a general statement about the equal protection of the law, without explicitly limiting the scope of prohibited discrimination to actions based on prejudice.13 Sim-

9

United States v. Carolene Products Co., 304 U.S. 144, 154 (1938). John H. Ely, Democracy and Distrust: A Theory of Judicial Review, p. 181 (1980). 11 For a critique of this approach on this basis see Bruce A. Ackerman, Beyond Carolene Products, 98 Harvard Law Review, p. 713 (1985); William N. Eskridge Jr., Is Political Powerlessness a Requirement for Heightened Equal Protection Scrutiny?, 50 Washburn Law Journal 1 (2010); Bertrall L. Ross II, Democracy and Renewed Distrust: Equal Protection and the Evolving Judicial Conception of Politics, 101 California Law Review, p. 1565 (2013). 12 See infra Section 3. 13 See, for instance, The International Covenant on Civil and Political Rights, § 26: “All persons are equal before the law and are entitled without any discrimination to the equal 10

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ilar approaches have been applied in several legal systems, most notably by the German Federal Constitutional Court.14 The Israeli situation is more challenging in one respect: Israel’s Constitution is not codified. It consists of a set of so-called BasicLaws which together are deemed to be Israel’s Constitution. Within the BasicLaw, human dignity and liberty are entrenched. The right to equality is not explicitly enumerated, but only implicitly derived from the right to human dignity. While it may seem as if an infringement of human dignity in the context of discrimination should require some aspect of prejudice, the Court ruled that a person’s dignity is violated, and thus also her right to equality is violated, when the government does not act on the basis of impartial, principled considerations. In the terminology used here, the Israeli Supreme Court can be understood as ruling that a legislature which acts pluralistically in approving a certain statute breaches each citizen’s right to human dignity and equality, thus justifying judicial review of that statute. The aim of this short essay is to critically discuss the position of the Israeli Supreme Court regarding the right to equality. The discussion focuses on the idea that antidiscrimination doctrine also applies to legislation. An infringement consists of differential treatment that is based on morally irrelevant considerations, even if it does not amount to prejudice. The Court has not explicitly acknowledged that this view goes far beyond its own precedents, or that it goes beyond the prevailing understanding of the right to equality in other liberal democracies. For that reason it has not set out its reasoning in detail. This essay aims at partially filling this gap. I offer support for the Court’s novel approach, but argue that it should be formulated as a doctrine which is separate and distinct from the Court’s traditional antidiscrimination doctrine, preferably outside the realm of human rights.

II. Constitutional Law and the Political Process Antidiscrimination doctrine plays a central role in scrutinizing administrative decisions. It applies not only when the Executive Branch unjustifiably treats similar cases differently, but also in requiring that administrative discretion is employed only on the basis of morally relevant considerations. Awarding a benefit or imposing a burden based on morally irrelevant considerations is impermissible since it violates the duty to treat all persons as equal. The debate is whether the same rationale, and thus the same legal norm, should be applied to the decisions of a representative body such as the legislature. At issue is the choice of an underlying political theory, primarily a choice between two ideal-types, namely between pluralism and republican-

protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as […]. 14 See, for instance, 1 BvL 21/12 (17/12/2014), in which the Court ruled on the basis of Article 3 (1) of the Basic-Law, which sets that “all persons shall be equal before the law,” that tax legislation unjustifiably favoring certain businesses over others is invalid.

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ism, and, subsequently, a decision whether this choice is entrenched in the Constitution and should thus be enforced through judicial review. In a nut shell, pluralism is founded on the premise of “bargaining democracy.”15 The political process, i. e., decisions made by elected representatives, is inherently distinct from judicial and administrative decision-making. Judges and bureaucrats are expected to act on an impartial basis, taking into account all morally relevant interests in determining what the public interest is. The legislature is expected to act differently. It consists of representatives of specific interests, and the public interest is defined as the outcome of a spontaneous, market-like process of political deals between these representatives.16 Accordingly, political decisions are justified on the basis of procedural justice, and their legitimacy is subject only to the commitment to respect human rights, which are understood as incorporating deontological constraints. This approach is founded on the premise that the political process is superior to a centralized decision-making procedure, due to both deontological and consequentialist considerations. As to the former, the idea is that each citizen is entitled to the right of equal participation in decision-making, a right which enjoys lexical priority over all other rights.17 Pluralism is also founded on consequentialist arguments about the superiority of political bargaining as a means of maximizing social welfare.18 Judicial review of legislation is unwarranted: since political bargaining often involves the exchange of remote benefits, it is practically impossible for the judiciary to evaluate whether a specific law is justified in terms of fairness. The competing view, often referred to as republicanism, equates the legislature with other branches of government, by imposing the constraint of public reason.19 The public interest is defined based on objective, impartial considerations. Legislators are not supposed to represent specific interests but to take into account all relevant interests and give each of them its morally appropriate weight.20 Accordingly, the legislature is required to provide substantive justifications for its decisions. This view is based primarily on the concern that the underlying premises of pluralism are 15

For a discussion of this concept see Robert D. Cooter, The Strategic Constitution, pp. 51 – 78 (2000); Tomas Stratmann, Logrolling, in: Dennis C. Mueller (ed.), Perspectives On Public Choice, p. 322 (1997). 16 The seminal work on pluralism is Robert A. Dahl, Pluralist Democracy in the United States: Conflict and Consent (1967). See also Frank R. Baumgartner/Beth L. Leech, Basic Interests: The Importance of Groups in Politics and in Political Science, 1998; Nicholas R. Miller, Pluralism and Social Choice, 77 Amercian Political Science Review, p. 734 (1983). 17 See, e. g., Jeremy Waldron, Law and Disagreement, pp. 232 – 254 (1999). 18 See, e. g., Cooter, supra note 15, at pp. 51 – 78; Ronald A. Cass, Privatization: Politics, Law and Theory, 71 Marquette Law Review, pp. 449, 466 (1988). 19 John Rawls uses this concept (see Rawls, Political Liberalism, 48 – 54 (expanded ed. 2005)) in a somewhat narrower way than its use within the tradition of republicanism discussed here. For a general discussion see Lawrence B. Solum, Public Legal Reason, 92 Virgina Law Review, pp. 1449, 1450 – 1485 (2006). 20 Frank I. Michelman, The Constitution, Social Rights and Liberal Political Justification, 1 Oxford International Journal of Constitutional Law, pp. 13, 32 (2003).

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unfounded. Not all relevant interests are sufficiently represented in the political process, and certain interests, primarily those of persons and corporations that are successful in forming effective interest-groups, enjoy disproportionate political power.21 The concern is that there is no correlation between the moral weight of certain interests and their political success. Empirical evidence presented by public choice theory shows substantial deviations by the legislature from the ideal of republicanism. Consequently, assigning to the judiciary the role of reviewing legislation, and in fact giving it the task of determining what the public interest is in given contexts, is inevitable. Each of these two positions about the ideal model of politics is supported by a different set of constitutional norms. It is reflected in rules governing lobbying and campaign contributions, in the choice between awarding formal powers to political parties and recognizing the independence of elected representatives in employing discretion, and much more. But the main field in which the choice between the two conflicting views is reflected is that of constitutional human rights. It is generally agreed, even among advocates of “soft” judicial review, that acting on the basis of pluralism is permissible, if at all, only as far as the statute under consideration does not violate basic liberties. Human rights law determines what type of social decision making should be applied in a given context. The meaning of the conclusion that a social decision, such as legislation, infringes a constitutional human right is that its justification must be substantial rather than merely procedural. The decision must be rational, and the government is required to justify it, both as part of the political process and after its conclusion, in judicial litigation, by referring to the morally relevant considerations.22 In a nut-shell, classifying a decision as a human rights infringement forces the legislature to adhere to republicanism. Therefore, determining the scope of a human right substantially shapes the type of decisions that the legislature is left free to make on the basis of pluralism. An expansive interpretation of human rights may be the result of a rejection of pluralism, along with a view that the judiciary should compel the legislature to adhere to republicanism. Viewing this debate from a more general perspective, the question is what the primary purpose of the duty to respect human rights is. According to one view, human rights only narrowly constrain the powers of the three branches of the government, imposing a prohibition on infringing deontological constraints. These are prohibitions on harming a person’s autonomy and dignity. The constraints are not linked, at least not directly, to an assessment of whether the political process functions properly or not. In the context of the right to equality, this view justifies restricting the 21 See, e. g., Macey, supra note 3, at 229 – 32; Steven Croley, Interest Groups and Public Choice, in: Daniel A. Farber/Anne Joseph O’Connell (eds.), Research Handbook on Public Choice and Public Law, pp. 49, 72 – 78 (2010). 22 See, e. g., Moshe Cohen-Eliya Iddo Porat, Proportionality and the Culture of Justification, 59 American Journal of Comparative Law, p. 463 (2011); Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of Rights, 10 South African Journal on Human Rights, p. 31 (1994); Frederick Schauer, Giving Reasons, 47 Stanford Law Review, p. 633 (1995).

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power of the legislature to enact laws on the basis of prejudice. Thus, judicial intervention is justified only when a decision harms a specific group that suffers systemic social subordination and stigmatization. When the element of moral condemnation is missing, the political process is left mostly unchecked, following the premises of pluralism. The result is a human rights methodology which accentuates the first of the two stages of the judicial evaluation of legislation, the stage of deciding whether the law infringes a human right. It is only certain types of injustices that constitute an infringement; and in only rare instances can an infringement be justified. The competing view assigns human rights law a greater role, namely that of protecting persons’ important interests and even the public interest as well. Human rights are infringed whenever a sufficiently important interest is adversely affected, including circumstances which do not constitute an infringement of a deontological constraint. Finding that a law infringes a human right is not an intermediate conclusion that state action is unjustified, but merely a formal justification for judicially reviewing the law. The basis of this approach is a rejection of the normative and empirical premises of pluralism. The justification for judicial review of legislation, which is the result of political bargaining, is not the concern that relevant interests were not sufficiently represented, but precisely the opposite, namely, the concern that certain decision-makers voted as representatives of specific interests rather than as objective, impartial decision-makers. In the current context, a law which is the result of political bargaining is perceived of as being based on considerations which are morally irrelevant, and thus is classified as an infringement of the right to equality, and justifiably subject to judicial review. Flaws in the political process, from the perspective of the republican ideal, do not mean that the legislation is necessarily invalid, but merely that a judicial check of its merits is warranted. This entails a different type of judicial scrutiny: whereas laws that infringe core aspects of antidiscrimination are subject to a strict scrutiny test, legislation that merely violates the ideal of republicanism, without conveying a message of prejudice and inferiority, is subject to a rationality-type scrutiny. The result is a greater emphasis at the second stage of judicial review in the evaluation of laws. The latter approach does not call for reviewing each and every piece of legislation. The presumption that all legislation is nothing but “greed and chaos,” as pessimistic public choice theorists tend to argue, is far from being self-evidently true.23 An important justification for identifying a constitutional duty to uphold the political ideal of republicanism is the presumption that in most cases the legislature is committed to the constraint of public reason. More often than not, lawmakers base their decisions, or at least publicly justify them, using some reasonableness theory of justice rather than on the basis of political bargaining. Accordingly, judicial review is justified only in those instances in which legislation is in conflict with this ideal, or at least primafacie seems to be so. The court would normally avoid second-guessing what the public interest is, as long as a law is the result of republican-type political debate. In con23

See, along these lines, Croley, supra note 21.

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trast, when legislation is primarily motivated by a specific-interests rationale, it may well be justified, given a normative anti-pluralist position, to arrive at the intermediate conclusion that the law is unjust. It is for this reason that the subjective purpose of the law is important in determining whether a law infringes the right to equality. Constitutional interpretation in general, and determining the scope of the right to equality in particular, should thus be based, among other things, on a choice of an ideal-type model of the political process. This choice is only implicit, if at all, in the Constitution, so that a Dworkinian inquiry of the theory that best fit existing, in the sense that it provides the best justification of the Constitution, is inevitable. In what follows I present the Israeli Supreme Court jurisprudence regarding the right to equality, and argue that it can be justified, at least in part, by reference to a specific moral theory, namely republicanism.

III. Expanding the Antidiscrimination Doctrine in Israel The core of the right to equality is anchored in deontology, prohibiting prejudice against members of minority groups. Several aspects of this core meaning are subject to debate,24 including the moral foundations of the prohibition against discrimination, as well as more specific elements of the implementation of the doctrine. Nevertheless, there seems to be a consensus that the central element of this right is the protection of groups that are subject to systemic subordination and stigmatization. The status of more peripheral aspects of this right, however, is contested. Specifically, it is not yet settled whether the right to equality also prohibits differential treatment that does not amount to prejudice but is merely based on morally irrelevant considerations. As indicated, recent developments in the Israeli Supreme Court’s jurisprudence suggest a positive answer to this question. The Israeli Constitution, which is a set of twelve Basic-Laws, does not include an explicit right to equality. Indeed, the Knesset purposely decided to enact only a partial Bill of Rights. In 1992 it enacted the Basic-Law: Human Dignity and Liberty, which does not explicitly enumerate certain human rights, including the right to equality. It was a political compromise, essential to secure the support of some Knesset members, who believed that enacting a comprehensive Bill of Rights might result in invalidating important policies and practices which the majority considered essential and justified.25 However, the Supreme Court has ruled that the right to equality, as 24 One piece of research identified seven different approaches to the question what constitutes “discrimination.” See Andrew Altman, Discrimination, in: Edward N. Zalta (ed.), The Stanford Encyclopedia of Philosophy (2011 – http://plato.stanford.edu/archives/spr2011/ent ries/discrimination). See also Re’em Segev, Making Sense of Discrimination, 27 Ratio Juris, p. 47 (2014). 25 See, e. g., Adam Shinar, Accidental Constitutionalism: The Political Foundations and Implications of Constitution Making in Israel, in: Dennis Galligan/Mila Versteeg (eds.), The Social and Political Foundations of Constitutions, p. 207 (2015).

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well as all other basic liberties, are constitutionally protected, through the right to human dignity, which is explicitly enumerated in the Basic-Law: Human Dignity and Liberty.26 The right to human dignity protects a person’s autonomy interests, which include the right to be treated equally and not to be discriminated against. Accordingly, the Court subjects state actions to judicial review, including legislation, which infringe the right to equality. From time to time the Court strikes down discriminatory governmental decisions, and as discussed below, it declared three statutes invalid as they unjustifiably infringed the constitutional right to equality. Until recently, the Court used to distinguish between a general (or “administrative”) antidiscrimination doctrine and a narrower constitutionally entrenched one. The distinction refers to the content of the prohibition and its institutional scope. The general antidiscrimination doctrine, which presumably restricts only the Executive Branch, requires treating similar cases similarly. A “reference group,” namely a group whose members should, at least prime facie be treated equally, is formed ad hoc as a comparison group, based on the purpose of the policy under consideration and an assessment of what criteria are rational in pursuing this purpose. Thus, the usual two-stage human rights methodology does not apply. A policy is considered as discriminatory, and thus an infringement of the right to equality exists only if the conclusion of the second stage of the analysis is that the policy is not based on rational classifications but on morally irrelevant ones. In contrast, the constitutionally entrenched antidiscrimination doctrine, which restricts all branches of government, including the legislature, used to be narrower. It applies only to instances of discrimination on the grounds of classifications such as race, gender, and religion, which are based on prejudice. This type of “generic” discrimination is subject to the Israeli version of the strict scrutiny test, in comparison to the former doctrine’s rationality test. Along these lines, legislation prohibiting discrimination in the marketplace by private actors is limited to discrimination on the grounds of some enumerated classifications, primarily, with some exceptions, according to the standard definition in international covenants and domestic constitutions and legislation.27 The idea is that both the legislature, acting as representative of the public, and private actors, should only be prohibited from engaging in especially harmful discriminatory practices, which are part of systemic subordination and stigmatization of certain minority groups, but not other seemingly irrational differential treatment. The shift in the Court’s position regarding its role in regulating the political process was gradual. It started in the early 1990’s, in criticizing the practice of channeling public funding to specific institutions, as part of political bargaining. The Court’s critique induced the Knesset to enact in 1992 a norm that requires that the provision of 26

See, e. g., HCJ 7052/03 Adala v. Minister of Interior Affairs, PD 61(2) 202 (2006). See also Aharon Barak, Human Dignity: The Constitutional Value and the Constitutional Right, p. 295 (2015). 27 Antidiscrimination in Goods, Services, and Public Places, (2000).

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public financial support to private entities be made according to universal and equality-based standards, approved by the Attorney-General (Section 3 A of the Budget Foundations Act, 1992). This norm was explicitly enacted to address the concern of sectarian allocation of funding. However, it applies only to the Annual Budget Law, and thus does not prevent awarding monetary and other benefits in “regular” legislation. As indicated, the Israeli Supreme Court is now in the process of a doctrinal shift. In a series of decisions, starting with the Movement for Quality Government case (2006),28 the Court ruled that certain legislated norms infringe the right to equality, even though they do not discriminate against discrete and insular minority groups and are not even remotely based on prejudice. This trend can be illustrated by the following four decisions: (1) the Nasser case (2012), in which the Court unanimously invalidated a provision in the Tax Code, awarding tax benefits to residents of certain towns. The Court ruled that since the list of towns was not based on principled criteria, but was probably the result of political bargaining, it unjustifiably infringed the right to equality.29 (2) the Yekutiely case (2010), in which the Court struck down a provision in the Annual Budget Law, awarding stipends to students studying at Yeshivas [Jewish religious colleges] but not to students at academic institutions. 30(3) the Movement for Quality Government case (2006) and then the Resler case (2012), where the Court declared invalid a statute that awarded Yeshiva students an exemption from three-year military service, which was otherwise compulsory.31 (4) the Lahav case (2010), where the court ruled that setting an upper limit of a person’s income, out of which her social security tax is calculated, discriminated against taxpayers whose income was close to the limit in comparison to those whose earnings exceeded it, and thus infringed the constitutional right to equality.32 A similar approach can be inferred from several other decisions. These decisions have expanded the scope of the antidiscrimination doctrine. The Court applies this doctrine to legislation which benefits – rather than harms – a specific group, without directly harming others. These are norms that benefit a group which does not enjoy a majority or socially hegemonic status, and the relevant laws were not based on some “suspect classification.” As such, the preferred treatment did not convey a message of inferiority to those who did not receive the benefit. Classifying the above laws as infringing the right to equality is founded primarily on the premise that they are not based on morally relevant considerations but on political bargaining in the Knesset. The fact that the decision does not directly affect the in28 HCJ 6427/02 The Movement for Quality Government vs. The Knesset, PD 61(1) 619, para. 38 (President Barak) (2006). 29 HCJ 8300/02 Nasser v. The Government of Israel (2012). 30 HCJ 4124/00 Yekutiely v. Minister of Religious Affairs (2010). 31 HCJ 6298/07 Resler v. The Knesset (2012). Translation available at: http://versa.cardozo. yu.edu/opinions/ressler-v-knesset. 32 HCJ 6304/09 Lahav, Organization for Independent Businesspersons v. Attorney General, paras. 91 – 92 (2010). The Court ruled that this infringement is justified.

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terests of certain persons is immaterial to determining that a right has been infringed. For instance, in the Nasser case, where the law provided tax benefits to certain individuals, no specific person was directly or substantially affected. The total sum of the benefits was nominal in the sense that it did not result in imposing higher tax burden on others; and there was clearly no sign of disrespect towards certain individuals, as the tax benefits were not awarded on the basis of some “suspect” classification. Nevertheless, the Court ruled that this norm infringed the right to human dignity of all other taxpayers, namely more than 99 % of the population. It observed that it is sufficient that the benefits were not awarded on the basis of morally relevant considerations to classify it as an infringement of the right to equality: “Ignoring the specific characteristics of the residents of each municipality in deciding to whom tax benefits are awarded, infringes the dignity of those individuals that did not receive benefits even though their relevant characteristics are similar to those who did receive the benefits. Ignoring the similarities between the two [groups] denies the autonomy of the person who was discriminated against […]. This kind of discrimination conveys a social message of deprivation and disrespect to all those tax payers that did not receive the benefits without any relevant distinction […]. It reflects a harsh disrespect in a person’s equal status in the eyes of the government.”33 The Court avoided distinguishing between different types of discrimination. Thus, it implicitly eliminated the long standing approach that the constitutional antidiscrimination doctrine is narrower than the more general one, which used to restrain only the Executive Branch. In a few instances several justices explicitly suggested that the dichotomy between the two kinds of discrimination should be abandoned. For instance, in one case the Court noted that “equality is equality, and no dichotomy should exist between ‘constitutional equality’ and ‘administrative equality.”34 Similarly, in another decision the Court suggested that “discrimination of any type, namely a distinction based on irrelevant considerations, infringes human dignity and thus infringes a constitutionally entrenched human right.”35 The Court’s position on this matter is not yet settled. In several decisions it ruled that the administrative law antidiscrimination doctrine does not apply in reviewing legislation, maintaining the view that the constitutional law norm is much narrower, prohibiting only prejudice against minorities.36 Given that the Israeli Supreme Court does not sit en-banc, both views still coexist. The Court explicitly addresses this issue only rarely. One such case was the Movement for Quality Government case (2006), which dealt with the constitutionality of a law awarding Yeshiva students an exemption from the draft. The Court was split in its view whether this law violated the right 33

Nasser, supra note 29, para. 46 (President Beinisch). HCJ 343/09 The Open House in Jerusalem v. The Jerusalem Municipality, PD 64(2) 1, para. 1 (Justice Hayut) (2010). 35 HCJ 6784/06 Shlitner v. Stipends Awards Officer, para. 3 (Justice Rivlin) (2011). 36 See, e. g., HCJ 2021/11 Va’aknin v. Minister of Finance, para. 17 (President Grunis) (2013). 34

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to equality. The majority opinion, written by President Barak, ruled that since the exemption could not be justified on the basis of the public interest, the law infringed the right to equality. The dissent, written by Justice (and later President) Grunis, ruled that while the law may well be unjustified in terms of public policy, it should not be subject to judicial scrutiny. The law was the result of political bargaining, in which all relevant interests were sufficiently represented, including the interests of those who were arguably discriminated against, namely the majority of the Jewish population in Israel. President Barak responded, reflecting the majority opinion, that in applying the antidiscrimination doctrine, the Court should not take into account assessments of the sufficiency of representation of specific interests in the political sphere, implicitly rejecting the pluralism ideal. An important aspect of the decisions under consideration, which may help to support the argument that the Court was primarily aiming at regulating the political process, and working against pluralism, was the Court’s reasoning in the above decisions. In the three cases in which legislation awarding financial benefits (Yekutiely), or, respectively, granting an exemption from military service (the Movement for Quality Government and Resler) was scrutinized, the Government suggested that these norms could be justified on the basis of morally relevant considerations. Specifically, the Government argued that the exemption from military service was justified based on principled considerations such as the Yeshiva students’ right to be exempted based on their right to religious freedom, and the Jewish Ultraorthodox community’s collective right to culture. It was also suggested that encouraging religious studies is a legitimate state interest, given Israel’s constitutional identity as a Jewish and democratic state. Typically, the Israeli Supreme Court evaluates statutes on the basis of their “objective purpose,” that is, a legitimate state interest that may justify the norm, regardless of whether this purpose was indeed the most significant motivation (or “subjective purpose”) of enacting the statute. However, in the cases under consideration, the Court refused to address these hypothetical justifications. It ruled that in evaluating the validity of these laws it assumed that they aim at employing universal and equality-based standards. Specifically, it ruled that the purpose of the stipends and draft laws was to treat equally all members of the relevant “reference group”, i. e., all students in higher education institutions, both religious and academic ones in the first case, and citizens subject to the draft in the latter cases. This presumption dictated the conclusion that the laws under consideration, which awarded benefits to a specific group, did not achieve their aim and were thus invalid. Thus, the Court in fact avoided evaluating the plausible objective purposes offered to justify the laws. A possible explanation of this unusual approach is the Court’s anti-pluralism position. The relevant laws were enacted, to a large extent, as part of political bargaining. A political party, representing the Ultraorthodox community’s interests, exchanged its votes in the Knesset for benefits to Yeshiva students, thus supporting the Government. The other coalition parties that voted for these norms did not do so out of conviction that they were justified on their merits, or as the result of taking

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into account all relevant considerations. Their agreement was mostly part of a political deal. As indicated, the Court was not willing to even inquire whether the laws could have been justified, or that the Knesset had employed impartial discretion. In this sense, the Court employed a test which was even stricter that the usual strict scrutiny test that is applied to prejudice cases. In summary: according to the Court’s jurisprudence, at least in some of its recent decisions, there is no relevant distinction between instances of “generic” discrimination, namely discrimination which is based on prejudice, and instances of awarding benefits to certain individuals without sufficient normative justification. In what follows I question this position.

IV. Socio-political Explanation of the Doctrinal Shift The Israeli Supreme Court did not explicitly explain or justify this doctrinal shift. It is possible to speculate, however, that in employing this new approach the Court responded to a growing public sentiment of discontent with the political process. Israeli society, like other liberal democracies, has in recent years shown a growing concern that political decisions are based primarily on bargaining, both between powerful economic interest groups and politicians, and within political parties, rather than being based on public reason. As a multi-party parliamentary democracy, Israel is used to the practice of coalition government, which is often based on logrolling and political deals. These deals include not only ideological compromises but also awarding monetary benefits and other benefits to satisfy the interests of certain groups. As early as the 1990’s the Court was willing to review political agreements, ruling that these coalition agreements were legally binding and that their content was, at least in principle, subject to judicial review. However, until recently the Court did not impose meaningful limits on political bargaining. It seems that the shift, which was made possible as a result of the “Constitutional Revolution” in 1992 – 1995, has to do with the growing public opposition to the disproportionate political power of one specific group—the Jewish Ultraorthodox community. While the current doctrinal shift is not confined to reviewing benefits awarded to this sector, as indicated, for instance, in the Nasser case, which did not involve this community, the norms that benefit this community have served as the main area in which the doctrinal shift was carried out. The Jewish Ultraorthodox community in Israel consists of less than 10 % of the population. However, due to its special cultural characteristics, it is quite successful in drawing and consolidating political power far exceeding its percentage of the population. The power is used to further the special interests of its members.37 This po-

37 A similar result is sometimes achieved by ultraorthodox communities even in the U.S., where the political power is used mostly to secure public funding religious schools. See, e. g., Board of Education of Kiryas Joel Village School District v. Grumet, 512 U.S. 687 (1994). For

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litical power grew dramatically after 1977, when the votes of the Ultraorthodox parties became pivotal in deciding whether a left-wing or right-wing government was formed. Not surprisingly, along with this trend, negative public sentiment grew against the practice of awarding benefits to this sector of the population based on political bargaining. The Court echoed this sentiment, and started to scrutinize legislation which was specifically designed to further the interests of the Ultraorthodox community, primarily the law which awarded Yeshiva students an exemption from an otherwise compulsory three-year military service. This approach reflects an interesting twist to the standard counter-majoritarian problem: by acting against the will of the majority of parliamentary representatives of the public, the Court aims at protecting the interests of the majority itself. Moreover, imposing limits on the bargaining power of the political parties in fact helps the majority parties as well, at least in the long run. Indeed, while the Court’s rulings in this area were received with antagonism by the Ultraorthodox community and its parliamentary representatives, the majority in parliament was quite indifferent, in contrast to the often not so welcoming reaction to judicial decisions striking down governmental decisions in other areas.

V. Regulating Institutional and Procedural Matters Through Human Rights Law An important aspect of this doctrinal shift is the Israeli Supreme Court’s use of human rights law, particularly the right to human dignity, to regulate governmental decision-making. In this respect, the expansive interpretation of the right to equality is a manifestation of a broader approach of the Court. According to this approach, the right to human dignity protects persons not only from certain outcomes, namely what happens to them, but also imposes constraints on certain institutional and procedural aspects of state actions. The idea is that human rights constrain the government from acting unfairly, and employ its powers subject to the requirements of public reason. As indicated above, the Court held that employing governmental powers for purposes other than promoting the public good infringes, in and of itself, the right to human dignity. The same pattern can be identified in the Israeli Supreme Court’s jurisprudence in related contexts. One example is the prison privatization case. In the College of Law and Business case (2009), the Court ruled that employing certain powers, including operating a prison, run by for-profit private entities, infringes the inmates’ rights to dignity and liberty. The Court based its decision not on an assessment of the actual outcome of this practice, but primarily on the idea that the privatization as such violates the principle that such powers will be exercised by state actors, who would act, a discussion see, e. g., Saul Levmore, Precommitment Politics, 82 Virgina Law Review, p. 567 (1996).

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presumably, subject to the constraint of public reason. In the Court’s words, “we should take into account not merely a person’s actual loss of personal liberty for a certain period, but also the manner in which he is deprived of liberty […]. The existence of a privately managed prison […] inherently [violates] the human dignity of prison inmates.”38 The Court ruled that “imprisoning persons in a privately managed prison leads to a situation in which the public purposes of the imprisonment are blurred and diluted by irrelevant considerations that arise from a private economic purpose.”39 The novelty in this position is the idea that the state expresses disrespect to persons when an action is not aimed exclusively to promote the public good.40 A similar approach can be inferred from the Court’s jurisprudence regarding the requirement of authorization by law of state actors’ powers. In the Israeli Constitution there is no general provision requiring the Executive Branch to act on the basis of explicit authorization by the Knesset. Such a requirement is included in the Limitation Clause (Article 8) of Basic-Law: Human Dignity and Liberty, which states that an infringement of human rights may be permissible only if authorized by law. In enforcing this requirement, the Court did not confine itself to instances in which the government employed powers that resulted in human rights infringements. According to the Court’s ruling in the Rubinstein case (1998), the Knesset should make the primary policy choices in areas which are subject to intense public debate, rather than the Executive Branch, following, to a certain extent, the American No Delegation doctrine.41 In that case the Court invalidated a governmental decision to exempt Yeshiva students from military service, a decision that at that time was founded on a broad, insufficiently detailed Act. The interesting aspect of the decision is the Court’s reasoning. It ruled that the requirement of a detailed authorization by law is anchored in the Basic-Law: Human Dignity and Liberty, thus explaining why this doctrine was not enforced before the enactment of this Basic-Law in 1992. However, at the same time, the Court did not rule that the policy under consideration, of exempting Yeshiva students from military service, infringed on human rights. As indicated above, this ruling came only in 2006 (in the Movement for Quality Government case), when the Court reviewed the specific law that was enacted following the Rubinstein decision. In Rubinstein the Court did not rule on this matter, since according to the doctrine that was set out there, the requirement of explicit and detailed authorization by law was not confined to instances in which the government infringed human rights. Thus, the doctrine was based on the Basic-Law: Human Dignity and Liberty, but it applied even 38 HCJ 2605/05 College of Law and Business v. Minister of Finance, PD 63(2) 545 (2009), paras. 30, 37 (President Beinisch). An English translation is available at: http://elyon1.court. gov.il/files_eng/05/050/026/n39/05026050.n39.pdf. 39 Ibid., para 36 (President Beinisch). 40 For a critical discussion see Barak Medina, Constitutional Limits to Privatization: The Israeli Supreme Court Decision to Invalidate Prison Privatization, 8 International Journal of Constitutional Law, p. 690 (2010). 41 HCJ 3267/97 Rubinstein v. Minister of Defense, PD 52(5) 481 (1998).

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when the state action did not infringe, in and of itself, on basic liberties. It follows that according to the Court’s approach, a person has a right, entrenched in the Basic-Law, that important decisions will be made by the legislature.42 An additional example, which is not discussed here in detail, is the Israeli Supreme Court’s recognition of a freedom from religion. It prohibits the government from acting on the basis of religious considerations. The constraint applies to the reasons for actions, and it may thus apply to state actions which restrict interests that are not protected by human rights. This doctrine again employs human rights law in demanding that the government follow the requirement of state religious neutrality. It seems that the Court’s main concern in these and similar cases is that explicitly identifying the relevant constitutional norm outside the realm of the Bill of Rights would lack sufficient democratic legitimacy. Indeed, since the “Constitutional Revolution” of 1995, the Israeli Supreme Court has not struck down legislation on the basis of its incompatibility with provisions entrenched in Basic-Laws other than those protecting human rights. In its decision in the prisons privatization case, the Court briefly addressed the possibility of identifying a constitutional norm that prohibits privatization of certain powers. In this respect, the Court referred to Article 1 of the Basic-Law: The Government, which states that “the Government is the Executive Branch of the State.” The Court suggested that this provision may well be interpreted as prohibiting certain forms of privatization:43 “Article 1 of the Basic-Law: the Government does not expressly determine specific duties or spheres of activity where the government has an exclusive responsibility to act. Notwithstanding […] and especially in view of our outlook concerning the broad interpretation that should be given to provisions that have a constitutional status, we are inclined to interpret [Article 1] in a manner that enshrines on a constitutional level the existence of a ‘hard core’ of sovereign powers that the government as the executive branch is liable to exercise itself and that it may not transfer or delegate to private enterprises.”

However, the Court decided not to base its decision on Article 1 or to explicitly identify an enforceable constitutional norm against privatization, outside the realm of human rights law. The Court reasoned that interpreting Article 1 as prohibiting certain types of privatizations, or identifying such a general norm, would require the Court “to clearly define the boundaries of that ‘hard core’” of rights.44 The Court stated that it was preferable to avoid making such a principled decision by the judiciary, and in the absence of an explicit constitutional provision, the Court should delineate such prohibitions on a case-by-case basis.45 It seems that the main concern was that an 42 This aspect of the doctrine is debated. For a different view see, e. g., HCJ 4491/13 College of Law and Business v. The Government of Israel (2013). 43 HCJ 2605/05, College of Law and Business, supra note 38 (2009), para. 63 (President Beinisch). 44 Ibid., para. 63 (President Beinisch). See also ibid., paras. 3 – 4 (Justice Hayut). 45 Ibid., para. 65 (President Beinisch). The Court also pointed out that unlike the BasicLaw: Human Dignity and Liberty, which includes a limitation clause, which determines the

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expansive interpretation of Article 1 of the Basic-Law: the Government, or of norms regarding antidiscrimination, would have been perceived as invalidating legislation on the basis of “unwritten norms,” a move which would have been highly controversial.46 It is debatable whether this approach is justifiable. But be that as it may, it seems that it is essential to explicitly distinguish between employing human rights law for the protection of individual interests, autonomy, and human dignity, and doing so for protecting the public interest. As discussed above, in the context of the right to equality, the Court did not explicitly distinguish between legislation reflecting prejudice, and differential treatment that is based on morally irrelevant considerations that does not amount to prejudice. The argument that the Court should formulate the latter as a doctrine separated from the traditional antidiscrimination doctrine, is based on the fact that the scope of protection of the right to equality in this case is different from that in the alternative case. Presenting both instances as a violation of the right to equality and human dignity does not contribute to clarifying the law or provide greater protection for human rights. It would thus be preferable to formulate a new doctrine, even within human rights law, that explicitly protects the public interest, such as employing governmental powers based on public reason.

conditions in which a human right can be justifiably infringed, the Basic-Law: the Government does not include such a clause, and it is not clear in what terms, if at all, the government may privatize “hard core” powers. Ibid., para. 63. 46 Indeed, few of the Justices explicitly acknowledged the possibility that the expansion of the scope of the rights to liberty and human dignity, to include an independent right against privatization, amounts to an enforcement of an unwritten norm, ibid., (Vice-president Rivlin) (“The violation involved in the arrangement undermines the very structure of the democratic constitution. It is also possible to hold that we are dealing with a violation that exceeds the scope of the Basic-Laws, and lies in the field of the social contract upon which the existence of the state is founded. Releasing the state from the monopoly granted to it with regard to the use of force in order to protect the public interest undermines the principles upon which the entire social and constitutional foundations of the state rest.”); ibid., paras. 17 – 20 (Justice Levy, dissent); ibid., paras. 3 – 4 (Justice Hayut); ibid., paras. 29 (Justice Naor).

Human Dignity in International Human Rights, Humanitarian and International Criminal Law: A Comparative Approach By Stefanie Schmahl

I. Introduction The growing interplay between human rights law and international humanitarian law, which were for a long time considered as sharply distinct legal areas,1 has become a common feature during the last decades.2 The progressive convergence between the two corpora juris has been debated at length and various doctrinal theories have been established in this regard.3 One of the results of this discussion was the 1990 Turku Declaration of Minimum Humanitarian Standards;4 another result, 1

On this point see, e. g., Henri Meyrowitz, Le droit de la guerre et les droits de l’homme, 88 Revue du droit public et de la science politique en France et à l’étranger (1972), pp. 1095 et seq.; further cf. Robert Kolb, Ius contra bellum – Précis de droit international relative au maintien de la paix, 2nd ed. (2009), pp. 127 – 129. 2 From the voluminous literature see, e. g., Dietrich Schindler, Human Rights and Humanitarian Law, 31 American University Law Review (1982), pp. 935 et seq.; Françoise Hampson, Using International Human Rights Machinery to Enforce the International Law of Armed Conflicts, 31 Revue du droit militaire et droit de la guerre (1992), pp. 19 et seq.; HansPeter Gasser, International Humanitarian Law and Human Rights Law in Non-international Armed Conflict: Joint Venture or Mutual Exclusion?, 45 German Yearbook of International Law (2002), pp. 149 et seq.; Theodor Meron, International Law in the Age of Human Rights, 310 Recueil des Cours de l”Académie de Droit International (2003), pp. 68 et seq.; HansJoachim Heintze, On the Relationship between Human Rights Law Protection and International Humanitarian Law, 856 International Review of the Red Cross (2004), pp. 789 et seq.; Orna Ben-Naftali/Yuval Shany, Living in Denial: The Co-Application of Humanitarian Law and Human Rights Law to the Occupied Territories, 37 Israel Law Review (2004), pp. 17 et seq.; Vera Gowlland-Debbas/Gloria Gaggioli, The relationship between international human rights and humanitarian law: an overview, in: Robert Kolb/Gloria Gaggioli (eds.), Research Handbook on Human Rights and Humanitarian Law (2013), pp. 77 et seq. 3 See, for instance, Hans-Joachim Heintze, Theories on the relationship between international humanitarian law and human rights law, in: Kolb/Gaggioli, op. cit. (fn. 2), pp. 53 – 64; and the contributions, in: Rainer Arnold/Noëlle Quénivet (eds.), International Humanitarian Law and Human Rights Law (2008). 4 Declaration of Minimum Humanitarian Standards, UN Doc. E Cn.4/Sub.2/1991/55, adopted by the Meeting of Experts at Human Rights Institute of Abo Akademi, Turku, Finland, on 2. 12. 1990.

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more recently, was the 2005 Basic Principles and Guidelines on the Rights to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, a soft law instrument.5 Less attention, however, has been paid to the question of how the concept of human dignity is perceived by both bodies of law, and to what extent it is apparent in the default positions and objectives of international criminal law. The following reflections, therefore, pursue the aim of analysing the approach to human dignity in the above-mentioned legal areas in order to better understand how international law determines the concept of human dignity in substantive and methodological terms.

II. Human Dignity in International Human Rights Law 1. The Emergence of International Human Rights Protection Today it is general knowledge that the emergence of international human rights protection has silently revolutionized the original State-centered face of traditional international law.6 Until the middle of the twentieth century, it was a fundamental principle of international law that for almost all purposes, only States, being subjects of international law, were capable of possessing rights and duties in international law. Individuals had no such rights; rather they were deemed to be mere objects of international law unless rights were explicitly conferred on them by States.7 The manner in which a State treated its own citizens was completely a matter of its exclusively internal affairs.8 Against the background of the Holocaust, which revealed unprecedented and previously inconceivable levels of savagery and inhumanity, in the immediate aftermath of the Second World War, the international community quickly agreed to change this legal position. The process of the universalizing human rights, partly through the co5 Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law, adopted by UN General Assembly Resolution 60/147, UN Doc. A/RES/ 60/147, on 16. 12. 2005. 6 One of the early pioneers of this view was Eckart Klein, Menschenrechte: Stille Revolution des Völkerrechts und Auswirkungen auf die innerstaatliche Rechtsordnung (1997), pp. 23 et seq. 7 Thomas Buergenthal, Human Rights, in: Rüdiger Wolfrum (ed.), Max Planck Encyclopedia of Public International Law, Vol. IV (2012), p. 1021, MN 3. For comprehensive accounts of the history of international human rights law see, e. g., Micheline R. Ishay, The History of Human Rights: From Ancient Time to the Globalization Era (2004); Francesca Klug, The Evolution of Human Rights (2010); Samuel Moyn, The Last Utopia: Human Rights in History (2010); Christian Tomuschat, Human Rights Between Idealism and Realism, 3rd ed. (2014), pp. 12 et seq. 8 Buergenthal, op. cit. (fn. 7), p. 1022, MN 3.

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dification of natural, pre-positive law,9 started with the UN Charter that emphasizes the promotion of human rights and the respect for human dignity as a goal of the United Nations,10 and, more specifically, with the Universal Declaration of Human Rights, which was enacted by the UN General Assembly on 10 December 1948.11 In spite of its non-binding character as a mere recommendation, the Universal Declaration signaled a radical political change. It served as a legislative program for the world organization,12 and various legally binding human rights conventions at the universal and regional levels were drafted and adopted accordingly in subsequent years.13 All these human rights treaties pursue the primary objective of removing the area of human rights from the domestic jurisdiction of the States. Individuals can no longer be injured by the arbitrary exercise of State power, including that of their home State, without having recourse to international monitoring bodies or tribunals.14 Being the true beneficiaries of international human rights norms, individuals have thus stepped into the ‘light of international law’,15 although, of course, their status can still not be regarded as autonomous. 9

See, e. g., Yehoshua Arieli, On the necessary and sufficient conditions for the emergence of the doctrine of the dignity of man and his rights, in: David Kretzmer/Eckart Klein (eds.), The Concept of Human Dignity in Human Rights Discourse (2002), p. 1, at pp. 7 et seq.; Antônio Augusto Cançado Trinidade, Some reflections on the principle of humanity in its wide dimension, in: Kolb/Gaggioli, op.cit. (fn. 2), p. 188, at pp. 190 – 191. 10 Besides the Preamble also Articles 1 (3), 13, 55 (c), 62 (2), 68, and 76 of the UN Charter refer expressly to the international protection of human rights and to the concept of human dignity. 11 UN General Assembly Resolution 217 A (III), UN Doc. A/811. The drafting process of the Declaration is described by Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (1999); Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (2001). 12 See Bardo Fassbender, Einführung, in: Dirk van Gunsteren/Bardo Fassbender (eds.), Menschenrechteerklärung, Universal Declaration of Human Rights (2009), p. 1, at pp. 16 et seq.; Alex Conte/Richard Burchill, Defining Civil and Political Rights, 2nd ed. (2009), p. 2. 13 The 1966 International Covenant on Civil and Political Rights and the 1966 International Covenant on Economic, Social and Cultural Rights, which both entered into force in 1976, form together with the Universal Declaration of 1948 what has come to be known as the “International Bill of Human Rights”, see, e. g., Louis Henkin, The International Bill of Rights: The Universal Declaration and the Covenants, in: Rudolf Bernhardt/John Anthony Jolowicz (eds.), International Enforcement of Human Rights (1987), pp. 1 et seq.; Henry J. Steiner/Philip Alston/Ryan Goodman, International Human Rights in Context, 3rd ed. (2007), p. 133. For a listing of further universal and regional human rights treaties cf. Stefanie Schmahl, Reflections on the Categorization of International Human Rights, in: Hans Georg Ziebertz/Ernst Hirsch Ballin (eds.), Freedom of Religion in the 21st Century (2015), p. 1, at pp. 2 et seq. 14 See Eckart Klein, Die Erweiterung des Grundrechtsschutzes auf die universelle Ebene: Auswirkungen auf den Grundrechtsschutz in Europa, in: Karl Kreuzer et al. (eds.), Europäischer Grundrechtsschutz (1998), p. 39, at pp. 41 et seq. 15 As far as can be seen this formula (“in das Licht des Völkerrechts”) was for the first time used by Felix Störk, Staatsuntertanen und Fremde, in: Franz von Holtzendorff (ed.), Handbuch des Völkerrechts, Vol. 2 (1887), p. 589.

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2. Human Dignity as an Absolute Right and as a Peremptory Norm of International Human Rights Law Human rights law is essentially born out of the abuses by the State over its citizens, and every right can be traced back to actual State-organized or State-sponsored injustice.16 By protecting the equal dignity and liberty of every human being, each single human right enshrined in human rights conventions means a victory against State oppression.17 Now, it would go too far to fully equate, on a legal basis, every individual right with human dignity. However, there is no doubt that each single human rights guarantee may well be traced back to the concept of human dignity, since dignity forms part of the irreducible core content of all human rights.18 Human dignity has a wide range of historical, political, theological, and philosophical foundations, the description of which would by far exceed the scope of this paper.19 Yet, to put it briefly, human dignity, in a moral sense, is born out of the conviction that every human being is of equal worth, and, as such, a bearer of the same basic rights irrespective of their social rank, origin or behaviour. As dignity is independent of reputation, merits and conduct, it can neither be earned nor forfeited.20 Every human person has the absolute right to respect for his dignity simply by being part of humankind.21 In the legal context, however, human dignity has a more practical side. Its expression also lies in the daily human experience and in the relationship between the individual and

16 Cf., e. g., Christina M. Cerna, Human Rights in Armed Conflict: Implementation of International Humanitarian Law Norms by Regional Intergovernmental Human Rights Bodies, in: Fritz Kalshoven/Yves Sandoz (eds.), Implementation of International Humanitarian Law (1989), p. 31, at pp. 34; Markus Kotzur, Theorieelemente des internationalen Menschenrechtsschutzes (2001), p. 330; Arnd Pollmann, Menschenwürde nach der Barbarei: Zu den Folgen eines gewaltsamen Umbruchs in der Geschichte der Menschenrechte, 4 Zeitschrift für Menschenrechte (2010), pp. 32 et seq. 17 Eckart Klein, Establishing a Hierarchy of Human Rights: Ideal Solution or Fallacy?, 41 Israel Law Review (2008), p. 477, at p. 480. 18 Similarly Hans Joas, Die Sakralität der Person. Eine neue Genealogie der Menschenrechte (2011), pp. 108 et seq. 19 For an overview see, e. g., Hubert Cancik, Dignity of man” and “Persona, in: Stoic Anthropology; Some Remarks on Cicero, De Officiis I, pp. 105 – 107, in: Kretzmer/Klein, op. cit. (fn. 9), pp. 19 et seq.; Christian Starck, The Religious and Philosophical Background of Human Dignity and its Place in Modern Constitutions, ibid., pp. 179 et seq., both with further references. 20 Maya Hertig Randall, The history of international human rights law, in; Kolb/Gaggioli, op. cit. (fn. 2), p. 3, at p. 4. See also Orit Kamir, Honor and Dignity Cultures: The Case of Kavod and Kvod Ha-Adam in Israeli Society and Law, in: Kretzmer/Klein, op. cit. (fn. 9), p. 231, at pp. 241 et seq. Sceptical: Daniel Statman, Humiliation, Dignity and Self-Respect, in: ibid., p. 209, at pp. 210 – 211. 21 Rightly Cançado Trinidade, op. cit. (fn. 9), p. 192.

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the State, on the one hand, and society, on the other.22 Thus the concept of human dignity implies, amongst other things, a minimum of empathy and identification with fellow beings, rooted in the idea that all humans have certain features in common which transcend other (e. g., national, religious, and gender) identities and loyalties.23 Human dignity is inherent in any legal order based on freedom, equality and human rights. Nevertheless, it is interesting to note that its legal protection is not expressly referred to in most contemporary human rights treaties.24 Besides the more recent UN human rights instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women (1979), the Convention on the Rights of the Child (1989), and the Convention on the Rights of Persons with Disabilities (2006), where human dignity is to be regarded as the explicit and primary guiding principle of all other rights, and where several substantive provisions invoke the concept of dignity,25 only the legally non-binding 1948 Universal Declaration of Human Rights, which was proclaimed against the backdrop of the Second World War,26 addresses the dignity of the human person in the Preamble and in Article 1, stipulating that all human beings, men and women, are born free and equal in dignity and rights.27 In further stating that all human beings are endowed with reason and conscience and should act towards one another in a spirit of brotherhood, the Declaration underlines

22

See the interpretation given by Justice Shamgar, Supreme Court of Israel, Ploni v. Almoni (1992) 48 P.D. (3) 837, 843, to which David Kretzmer, Human Dignity in Israeli Jurisprudence, in: Kretzmer/Klein, op. cit. (fn. 9), p. 161, at p. 167, makes reference. 23 Hertig Randall, op. cit. (fn. 20), p. 4. As regards the role of empathy in human rights law see Lynn Hunt, Inventing Human Rights: A History (2007), pp. 28 et seq. 24 This is even so for the 1949 ECHR, which is the first binding international treaty that followed the Universal Declaration of 1948. However, the case-law of the ECtHR makes clear that human dignity is an important element when interpreting the Convention, see Jochen A. Frowein, Human Dignity in International Law, in: Kretzmer/Klein, op. cit. (fn. 9), p. 121, at pp. 124 – 131, with explanations of the Court’s case-law on the matter. In Pretty v. United Kingdom, the ECtHR, judgment of 29. 4. 2002, Application No. 2346/02, § 65, even stated explicitly that “[t]he very essence of the Convention is respect for human dignity and human freedom”. 25 Paolo G. Carozza, Human Dignity, in: Dinah Shelton (ed.), The Oxford Handbook of International Human Rights Law (2013), p. 345, at 350. Particularly with regard to the Convention on the Rights of Persons with Disabilities see also Stefanie Schmahl, Menschen mit Behinderungen im Spiegel des internationalen Menschenrechtsschutzes, 45 Archiv des Völkerrechts (2007), pp. 517 – 540. 26 Cf. Johannes Morsink, World War Two and the Universal Declaration, 15 Human Rights Quarterly (1993), pp. 357 – 405. 27 For more details on this point see, e. g., Klaus Dicke, The Founding Function of Human Dignity in the Universal Declaration of Human Rights, in: Kretzmer/Klein, op. cit. (fn. 9), p. 111, at pp. 116 – 117. With regard to the mentioning of human dignity in Articles 22 and 23 of the Declaration see Janelle M. Diller, Securing Dignity and Freedom through Human Rights: Article 22 of the Universal Declaration of Human Rights (2012), and Carozza, op. cit. (fn. 25), pp. 347 – 350.

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that human rights have a double nature, as they are, at the same time, legal and moral rights.28 The obvious reluctance to give dignity the status of a discrete right in international human rights instruments may be explained by the breadth of its meaning and the difficulty of defining its limits.29 What exactly the respect of human dignity means in legal terms, and which consequences can be drawn therefrom, remains open to debate and cannot claim to be a concept of timeless validity.30 In several aspects dignity, similarly to the respect for equality and autonomy of the individual, is an ‘incomplete idea’, shaped and evolving through the human suffering that has marked the history of humankind, on the one hand,31 as well as through different cultural, philosophical and religious perspectives, on the other.32 It is not possible here to elucidate in detail the development of human dignity as a moral and legal right on both the national and the international levels.33 However, for defining human dignity as a legal right on the international plane, one might safely point to the indispensable core of legal values which are reflected in what has been accepted by the international community as peremptory human rights norms of international law. The undisputed rules of this normative category include the prohibitions of slavery, genocide, torture, and systematic racial discrimination.34 All of these standards are minimal in character and aim at guaranteeing the survival of humankind, but they are, at the same time, very closely linked to the individual dignitas humana.35 Rights which extend beyond

28 Jeremy Waldron, Introduction, in: id. (ed.), Theories of Rights (1984), pp. 4 – 5; see also Hertig Randall, op. cit. (fn. 20), p. 3. 29 Similarly Arthur Chaskalson, Human Dignity as a Constitutional Value, in: Kretzmer/ Klein, op. cit. (fn. 9), p. 133, at p. 134; Carozza, op. cit. (fn. 25), pp. 345 – 346. 30 See, for instance, German Federal Constitutional Court (Bundesverfassungsgericht), BVerfGE 45, 187, 229 (1977). Also Oscar Schachter, Human Dignity as a Normative Concept, 77 American Journal of International Law (1983), pp. 848, at p. 849, put the debate on the persuasive point by stressing the epistemology of “I know it when I see it even if I cannot tell you what it is”. 31 Cf. James Griffin, On Human Rights (2008), pp. 9 et seq.; Michael K. Addo, The Legal Nature of International Human Rights (2010), pp. 19 et seq. 32 Konrad Hilpert, Die Menschenrechte – ein christliches Erbe?, in: Klaus M. Girardet/ Ulrich Nortmann, Menschenrechte und europäische Identität (2005), p. 159. 33 For a fuller account see, e. g., Jerome J. Shestack, The Philosophic Foundations of Human Rights, 20 Human Rights Quarterly (1998), pp. 201 – 234; Christopher McCrudden, Human Dignity and Judicial Interpretation of Human Rights, 19 European Journal of International Law (2008), pp. 655 – 724. 34 See the viewpoint expressed by the International Law Commission, in ILC Commentary on Art. 26 of the Articles on Responsibility of States for Internationally Wrongful Acts, GAOR, 56th Session, Supplement No. 10: Report of the International Law Commission, 53rd Session (2001), p. 208. Further cf. American Law Institute (ed.), Restatement of the Law Third, The Foreign Relations Law of the United States (Restatement Third), paras. 702 (a) to (f) (1987). 35 Schmahl, op. cit. (fn. 13), pp. 9 – 10.

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this short list are, rather, discretionary in nature, and, in principle, open to restrictions and to varying and even diverging cultural interpretations. Within the framework of the German Federal Constitution (Basic Law) which was strongly influenced by the 1948 Universal Declaration of Human Rights,36 the dignity of human beings is considered to be the legitimizing basis of the State.37 It is therefore the only norm which is absolute and compulsory in nature and not subject to balancing with other rights guaranteed in the German legal order.38 All other subjective rights enumerated in the catalogue of fundamental rights of the German Constitution are subject, in varying degrees, to balancing with other individual rights or public interests.39 This means, for instance, that in a case where there is a conflict between the right to life, which can be restricted under certain circumstances, on the one hand, and the prohibition of torture, which forms part of human dignity, and therefore is inalienable and absolute, on the other, the decision on preeminence has been made a limine in favor of the prohibition of torture. In view of the abstract determination by the drafters of the German Basic Law that human dignity must remain inviolable, there is no possibility of balancing it with other rights or interests in individual cases.40 As correct as this decision was in view of human dignity, it is equally important to be aware of the dangers which could result from putting other fundamental rights on the same level with human dignity or by conferring on them the same absolute weight and importance, since it would exclude, a priori, any balancing with other rights and interests.41 It is therefore advisable to be careful in 36 See Thilo Rensmann, Werteordnung und Verfassung (2007), pp. 25 – 33. The Basic Law has also been influenced by earlier Constitutions of the German Länder which by the vast majority expressly provide for the respect of the dignity of the human being, see Jörn Eckert, Legal roots of human dignity in German law, in: Kretzmer/Klein, op. cit. (fn. 9), p. 41, at pp. 52 et seq. 37 Eckart Klein, Human Dignity in German Law, in: Kretzmer/Klein, op. cit. (fn. 9), p. 145, at p. 146. 38 Klein, op. cit. (fn. 37), p. 148. See also Enders, Die Menschenwürde in der Verfassungsordnung (1997), pp. 124 et seq.; Jochen von Bernstorff, Der Streit um die Menschenwürde im Grund- und Menschenrechtsschutz: Eine Verteidigung des Absoluten als Grenze und Auftrag, 68 Juristen Zeitung (2013), p. 905, at pp. 913 et seq. This view, however predominant, remains not undisputed in German literature, see Matthias Herdegen, in: Theodor Maunz/Günther Dürig (eds.), Grundgesetz, Kommentar, Art. 1 MN 41 – 43 (2012); Manfred Baldus, Menschenwürdegarantie und Absolutheitsthese, 136 Archiv des öffentlichen Rechts (2011), p. 529, at pp. 548 et seq. 39 Cf. Peter Lerche, Grundrechtsschranken, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatrechts, Vol. V, 2nd ed. (1992), § 122 MN 8 et seq. 40 See, e. g., Regional Court (Landgericht) of Frankfurt am Main, Neue Juristische Wochenschrift (2005), p. 692, at p. 693; confirmed by ECtHR, judgment of 30. 6. 2008, Application No. 22978/05, Gäfgen v. Germany, para. 63. For a different view on this delicate relationship see, e. g., Fabian Wittreck, Menschenwürde und Folterverbot – Zum Dogma von der ausnahmslosen Unabwägbarkeit des Art. 1 Abs. 1 GG, 56 Die Öffentliche Verwaltung (2003), pp. 873 et seq. Other examples taken from the case-law of the German Federal Constitutional Court are analyzed by Klein, op. cit. (fn. 37), pp. 152 – 157. 41 See Schmahl, op. cit. (fn. 13), p. 17.

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dealing with the idea of human dignity in human rights law and to restrict its substantial ambit to the most basic values of humanity. On the international plane, the assumption that dignity is absolute also holds true. Much thought has been given to the grounds for the validity of absolute and peremptory norms in human rights law, particularly with regard to the protection of the dignity of the human being.42 In sum, opinio juris rather than State practice is the uncompromising rule that actors in international law must comply with certain patterns of behavior, from which no derogation under any circumstances is possible.43 For instance, the definition of torture in all human rights treaties codifies, or contributes to developing or crystallising customary international law, since its minimum content has constantly been expressed as a firm legal conviction of the international community of States,44 and has been, with broad convergence, applied in international jurisprudence.45 The reason for the acceptance of the absolute prohibition of torture can be basically ascribed to the concept of human dignity. This deduction is, of course, again rather more ethical than legal: what we are dealing with is a form of autopoiesis.46 The higher the material value and the convincing ethical power of a norm for the recognition of human dignity, the lesser are the requirements for established State practice.47 Peremptory norms which pursue the objective of protecting the dignity of the person generally tend to put certain superior values above power and above the principle of State sovereignty.

42 See, e. g., Ulrich Fastenrath, Relative Normativity in International Law, 4 European Journal of International Law (1993), p. 305, at pp. 307 et seq.; Joseph Halevi Horowitz Weiler/ Andreas Paulus, The Structure of Change in International Law, 8 European Journal of International Law (1997), p. 545, at pp. 558 et seq.; Martti Koskenniemi, Hierarchy in International Law: A Sketch, 8 European Journal of International Law (1997), pp. 566 et seq., all with further references. 43 Cf. Stefan Kadelbach, Zwingendes Völkerrecht (1992), p. 228. 44 See, for instance, Article 1 (2) of the UN Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by UN General Assembly Resolution 3452 (XXX) on 9. 12. 1975. The Declaration was adopted by consensus. 45 See, e. g., ICTY Trial Chamber, judgment of 16. 1. 1998, Case No. IT-96 – 21-T, Celebici (Delalic et al.), para. 459; judgment of 10. 12. 1998, Case No. IT-95 – 17/1-T, Furundzˇija, para. 160; judgment of 22. 2. 2001, Case No. IT-96 – 23-T & IT-96 – 23/1-T, Kunarac et al., para. 466. Further see ECtHR, judgment of 18. 2. 1978, Application No. 5310/71, Ireland v. United Kingdom, para. 167, and Human Rights Committee, General Comment No. 24, UN Doc. CCPR\C\21\Rev.1/Add.6 (11. 11. 1994), paras. 8, 10. 46 Clear-sightedly Anthony D’Amato, International Law as an Autopoietic System, in: Rüdiger Wolfrum/Volker Röben (eds.), Developments of International Law in Treaty Making (2005), p. 335, at p. 349. 47 Similarly Michael Byers, Conceptualising the Relationship between Jus Cogens and Erga Omnes Rules, 66 Nordic Journal of International Law (1997), p. 211, at pp. 222 et seq.; Gennady M. Danilenko, International Jus Cogens: Issues of Law Making, 2 European Journal of International Law (1991), p. 42, at p. 49.

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3. Preeminence of Human Dignity Within the Human Rights Arena Against this background, it seems likely that human dignity and the above mentioned jus cogens rights emanating directly therefrom might prevail over other individual rights. Levels of hierarchy within the area of human rights are generally supported by part of the academic literature.48 Yet, it proves difficult to explain, in dogmatic terms, the prevailing nature of particular norms in the international legal order.49 Compared to rules arrived at by agreement, norms from customary law may certainly be better suited to establish themselves as peremptory norms in human rights because they are the product of a long process of development and reflect widely held legal convictions.50 Nevertheless, the sources of international law are all formally equivalent in normative rank.51 At such a level where all norms are ranked equally, reference can be made to the conflict of laws rules such as the lex specialis principle; however, a preeminence in the form of a lex superior principle cannot logically exist.52 Concerns must equally be raised about the argument put forward with regard to non-derogable rights in order to provide evidence for the existence of mandatory and thus higher priority human rights norms.53 It is certainly true that all rights, which form part of the minimum human rights standard, may not be suspended even in times of emergency. This is so even if it has never been stated explicitly that the right concerned is non-derogable, as is the case, for example, with the prohibition of racial discrimination which is mentioned neither in Article 4 (2) ICCPR nor Article 15 (2) ECHR.54 This reasoning, however, does not work in the opposite direc48

See, e. g., Robert Kolb, Peremptory International Law: Jus cogens – A General Inventory (2015), pp. 32 et seq., with further references. 49 As to the following arguments with more details cf. Schmahl, op. cit. (fn. 13), pp. 13 – 17. 50 See Stefan Kirchner, Relative Normativity and the Constitutional Dimension of International Law: A Place for Values in the International Legal System?, 5 German Law Journal (2004), p. 47, at pp. 58 et seq. 51 See Juan Antonio Carrillo Salcedo, Reflections on the Existence of a Hierarchy of Norms in International Law, 8 European Journal of International Law (1997), p. 583, at p. 585. 52 Rightly Dinah Shelton, Normative Hierarchy in International Human Rights, 100 American Journal of International Law (2006), p. 291, at pp. 293 et seq.; Annika Tahvanainen, Hierarchy of Norms in International and Human Rights Law, 24 Nordisk Tidskrift for Menneskerettigheter (2006), p. 191, at p. 193. Differently Ulf Linderfalk, The Principle of Rational Decision-Making – As Applied to the Identification of Normative Conflicts in International Law, 73 Heidelberg Journal of International Law (2013), p. 591, at pp. 607 et seq. 53 See, e. g., the concurring opinion expressed by Judge Cançado Trindade to the decision of the IACtHR of 14. 3. 2001, Barrios Altos, 41 International Legal Materials (2002), p. 93, at p. 112; similarly Ian Seiderman, Hierarchy in International Law (2001), pp. 66 et seq. 54 See Human Rights Committee, General Comment No. 29, UN Doc. CCPR/C/21/Rev.1/ Add.11 (2001), para. 12. Cf. also Koji Teraya, Emerging Hierarchy in International Human Rights and Beyond: From the Perspective of Non-derogable Rights, 12 European Journal of International Law (2001), p. 917, at p. 927.

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tion, since human rights treaties qualify some rights as non-derogable, such as the prohibition on imprisonment for debts, although these rights do not belong to the body of mandatory human rights. Making the prohibition on imprisonment for debts a non-derogable right can be explained on the basis that it can never be necessary during an emergency to suspend the prohibition of imprisonment for debts because the suspension could contribute nothing to coping with the emergency situation.55 The jus cogens nature of a human rights norm, therefore, follows rather from the norm’s content and protective purpose, and precisely not from its status as nonderogable law.56 Similarly, the erga omnes status of international law norms does not create a hierarchy within the area of human rights. There is unanimity that the minimum human rights standard creates obligations towards each and every State, and even vis-à-vis the international community as a whole.57 If this minimum standard is infringed, the erga omnes status becomes operative and all States have the authority under international law to take action against this violation. However, this procedural rule only gives authority to act but it does not give priority to the rights and obligations which have only inter partes effect.58 These inter partes provisions, too, must in international law be complied with by the parties in exactly the same way as if they were erga omnes norms.59 Therefore, only the existence of erga omnes obligations taken together with the substance of a peremptory norm could constitute the basis for a hierarchy of norms in international law.60 Thus, a possible primacy of certain rights within the area of human rights law can only focus on peremptory rules which constitute minimum standards of behavior. 55 See Human Rights Committee, General Comment No. 29, op. cit. (fn. 54), para. 11. Consenting Eckart Klein, Bedeutung des Gewohnheitsrechts für den Menschenrechtsschutz, in: id. (ed.), Menschenrechtsschutz durch Gewohnheitsrecht (2003), p. 11, at p. 16. 56 See Prosper Weil, Towards Relative Normativity in International Law, 77 American Journal of International Law (1983), p. 413, at p. 425; Wolfram Karl, Menschenrechtliches ius cogens, in: Klein, op.cit. (fn. 55), p. 102, at pp. 124 et seq., and more recently Kolb, op. cit. (fn. 48), pp. 77 – 80. 57 Cf. ICJ, judgment of 5. 2. 1970, ICJ Reports 1970, p. 4, para. 33 – Barcelona Traction, ICJ, judgment of 30. 6. 1995, ICJ Reports 1995, p. 90, at p. 102, para. 29 – Case concerning East Timor; ICJ, Advisory Opinion of 9. 7. 2004, ICJ Reports 2004, p. 136, paras. 155 – 159 – Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. For a fuller account see Maurizio Ragazzi, The Concept of International Obligations Erga Omnes (1997). 58 See Theodor Meron, On a Hierarchy of International Human Rights, 80 American Journal of International Law (1986), p. 1, at p. 9; Byers, op. cit. (fn. 47), pp. 236 et seq. 59 Teraya, op. cit. (fn. 54), pp. 935 et seq. Similarly Stefan Kadelbach, Jus Cogens, Obligationes Erga Omnes and other Rules, in: Christian Tomuschat/Jean Marc Thouvenin (eds.), The Fundamental Rules of the International Legal Order. Jus Cogens and Obligations Erga Omnes (2006), p. 21, at pp. 27 et seq. 60 Klein, op. cit. (fn. 17), p. 482. See also the concurring opinion expressed by Judge ad hoc Dugard in ICJ, judgment of 3. 2. 2006, ICJ Reports 2006, p. 126, para. 4 – Democratic Republic of Congo v. Rwanda.

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This approach is, as has already been pointed out, essentially value oriented and primarily based on the close link between law and ethics.61 Only peremptory norms such as the prohibitions of slavery, torture, genocide and systematic racial discrimination which are stipulated in order to safeguard both individual human dignity and the collective survival of humankind might be suited for a position of preeminence in human rights law.62 4. Accountability for Violations of Human Dignity in Human Rights Law Since it is regularly the State that is legally bound by international norms, it is also the State which has to bear full responsibility for safeguarding human rights. State authorities are primarily required to refrain from any intentional and unlawful interference with individual human rights, including the dignitas humana.63 Secondly, the State is equally obliged to take appropriate steps through the establishment of effective legal and organisational structures to safeguard the rights of those within its jurisdiction, even in the sphere of relations between individuals, if need be.64 It is only by these protective measures that the effects of human rights guarantees extend to private actors. When individuals violate domestic legal norms prohibiting such conduct, they do not violate human rights norms as such. This assumption applies to all human rights, irrespective of whether they are dispositive or mandatory in character. It is, in any case, up to the State to enact the domestic tort liability and criminal laws necessary to fulfil its duty to protect and ensure international human rights.65 Failure in doing so entails, on the international level, the responsibility of the State and not of the individual perpetrators themselves. The most conspicuous feature of human rights treaties is, however, that victims are vested with an individual right of petition or with an even more formalized complaint mechanism against the violating State, which even might include an entitlement to reparations under international law.66 61

See, e. g., Shelton, op. cit. (fn. 52), p. 323; Carrillo Salcedo, op. cit. (fn. 51), p. 592. Cf. Schmahl, op. cit. (fn. 13), p. 18. 63 See Human Rights Committee, General Comment No. 31, UN Doc. CCPR/C/21/Rev.1/ Add.13 (20. 3. 2004), para. 8. 64 See Frédéric Sudre, Les obligations positives dans la jurisprudence européenne des droits de l’homme, in: Paul Mahoney et al. (eds.), Mélanges à la mémoire de Rolv Ryssdal (2000), pp. 1359 – 1376; Juliane Kokott, The Duty to Protect and to Ensure Human Rights Under the Inter-American System of Human Rights, in: Eckart Klein (ed.), The Duty to Protect and to Ensure Human Rights (2000), p. 235, at p. 260, both with references to relevant case-law. 65 Klein, The Duty to Protect and to Ensure Human Rights Under the International Covenant on Civil and Political Rights, in: id., op. cit. (fn. 64), p. 295, at pp. 302 et seq. 66 See, for instance, Article 41 ECHR according to which the ECtHR is authorized to afford just satisfaction to an injured party, if necessary. The Court has, by now, developed its jurisprudence to a point where in almost all cases it grants financial compensation. The InterAmerican Court of Human Rights, too, has observed that in every breach of a human rights 62

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III. Human Dignity in International Humanitarian Law 1. The Definition and Scope of International Humanitarian Law Whereas international human rights norms, which provide everyone with subjective rights against the State, are generally designed for times of peace, the conduct of hostilities is regulated by the law of armed conflict which mainly sets out parameters tailored to the behavior of belligerents in hostilities.67 However, the law of armed conflict does not only comprise the laws and customs of war which were the subject of efforts at codification undertaken in The Hague at the end of the 19th and the beginning of the 20th century.68 It also encompasses the principles and rules of international humanitarian law as enshrined in the 1949 Geneva Conventions and their Additional Protocols of 1977, which seek to protect the victims of war and provide safeguards for disabled armed forces personnel and persons not taking part in hostilities.69 These two branches of the law applicable in armed conflict have not only widely become customary rules,70 but have also become so closely interrelated that they are known today as international humanitarian law.71

guarantee the State concerned is bound to make full reparation, see IACtHR, judgment of 29. 7. 1988, No. 4 (1988), Velasquez Rodriguez, paras. 25, 26, and has maintained this jurisprudence ever since. 67 Cf. Marco Sassòli, The Role of Human Rights and International Humanitarian Law in New Types of Armed Conflicts, in: Orna Ben-Naftali (ed.), International Humanitarian Law and International Human Rights Law – Pas de Deux (2011), p. 34, at p. 34; Noëlle Quénivet, The History of the Relationship Between International Humanitarian Law and Human Rights Law, in: Arnold/Quénivet, op. cit. (fn. 3), p. 1, at p. 2. 68 For more details cf. Stefanie Schmahl, Development of International Humanitarian Law since the 19th Century, in: Thilo Marauhn/Heinhard Steiger (eds.), Universality and Continuity in International Law (2011), pp. 485 – 504. 69 Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (75 UNTS 31); Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (75 UNTS 85); Convention (III) relative to the Treatment of Prisoners of War (75 UNTS 135); Convention (IV) relative to the Protection of Civilian Persons in Time of War (75 UNTS 287); Protocol Additional to the Geneva Conventions of 12. 8. 1949, and Relating to the Protection of Victims of International Armed Conflicts (1125 UNTS 3); Protocol Additional to the Geneva Conventions of 12. 8. 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (1125 UNTS 609). 70 Most provisions of the 1949 Geneva Conventions reflect international customary law, see Mary Ellen O’Connell, Historical Development and Legal Basis, in: Dieter Fleck (ed.), The Handbook of International Humanitarian Law, 3rd ed. (2013), p. 1, at pp. 26 – 27, MN 126. For a detailed analysis see Jean-Marie Henckaerts/Louise Doswald-Beck, Customary Humanitarian Law (2005); Theodor Meron, Customary Humanitarian Law Today: From the Academy to the Courtroom, in: Andrew Clapham/Paola Gaeta (eds.), The Oxford Handbook of International Law in Armed Conflict (2014), pp. 37 – 49. 71 ICJ, Advisory Opinion of 8. 7. 1996, ICJ Reports 1996, p. 226, at para. 75 – Legality of the Threat or Use of Nuclear Weapons.

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Despite the fact that international humanitarian law remains in principle more State-oriented than human rights law, by mainly directing its norms to governments and belligerents, there are also several precepts that address individuals, affording them with legal defense protection and providing that serious violations may lead to criminal prosecution.72 Hence, not only human rights law but also international humanitarian law diverges from the usual pattern of international law in that the individual plays a pivotal role. 2. Collection of Norms Protecting Human Dignity in Armed Conflicts Seen as a whole, international humanitarian law provides an even more complete set of norms relating to the basic standards of humane treatment in the particular circumstances of armed conflict than human rights law. At least it can be said that it is better suited to military operations and their consequences as well as to gross violations of human rights.73 Consider, for instance, the treatment of prisoners of war pursuant to the Third Geneva Convention (GC III). According to Article 14 GC III, prisoners of war are entitled in all circumstances to respect for their person and their honour. The provision is meant to exclude the risk of becoming an arbitrary object of the State’s authorities, particularly because the prisoner of war regularly stands in a defenceless and vulnerable position vis-à-vis the Detaining Power.74 In general, it can be noted that the guarantee of elementary, non-discriminatory individual protection of prisoners of war under the Third Geneva Convention refers back to the general ‘value approach’ of the international legal order which is in favour of the recognition of human dignity.75 The humanitarian minimum standards laid down in the Third Geneva Convention, therefore, bind not only the States parties to the Convention but moreover all legal subjects of international law. In this respect, the status of prisoners of war is independent of contractual commitments and even independent of the personal will of the prisoners themselves who may, according to Article 7 GC III, under no circumstances renounce in part or in whole the rights secured to them by the Convention.76

72 Christian Tomuschat, Specificities of human rights law and international humanitarian law regarding state responsibility, in: Kolb/Gaggioli, op. cit. (fn. 2), p. 198, at p. 199. 73 Quénivet, op. cit. (fn. 67), p. 11. 74 Cf. Yôra¯m Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, 2nd ed. (2010), pp. 39 et seq. 75 Stefanie Schmahl, An Example of Jus Cogens: The Status of Prisoners of War, in: Tomuschat/Thouvenin, op. cit. (fn. 59), p. 41, at pp. 54 et seq. 76 For more details on this point see Schmahl, op. cit. (fn 75), pp. 63 et seq. Recently see also Kolb, op. cit. (fn. 48), p. 83.

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3. Accountability for Violations of Human Dignity in International Humanitarian Law Similar to the area of human rights law, also in the field of international humanitarian law, it is primarily incumbent on the States parties to the Hague and Geneva Conventions to ensure that the rights and duties enshrined therein are implemented and obeyed in the domestic legal order. Moreover, the doctrine of positive obligations also plays an important role in the protection of the victims of armed conflict by obliging the States to take measures to protect their people against the effects of the conduct of hostilities, not only with regard to their own operations but also with regard to any other hardship accompanying armed conflicts.77 However, when it comes to accountability for breaches of international humanitarian rules, the role of the State is rather peripheral. This is mainly due to the fact that international humanitarian law lacks effective enforcement mechanisms. Humanitarian law, whether conventional or customary in nature, is not supported by any general mechanism for the settlement of disputes between States. The only procedural device in that regard is the International Fact Finding Commission which Additional Protocol I to the Geneva Conventions introduced in 1977, but the Commission has not yet been put into operation.78 States are reluctant to submit inter-State regulatory mechanisms arising from military conflicts to judicial bodies, since breaches of international humanitarian law may touch upon the very existence of a State.79 For the same reason, international humanitarian law has also not followed the modern trend of conferring procedural devices on individual victims of unlawful conduct in armed conflicts. Beside the International Committee of the Red Cross, which promotes and secures the implementation of the relevant rules in armed conflict mostly in diplomatic terms, it is largely up to the community of States, and predominantly to the UN Security Council, to ensure through political means that international humanitarian norms are respected.80 Nevertheless, the conclusion would be erroneous that the duties set forth in international humanitarian law have no (legal) teeth at all. It is only the regime of civil responsibility which proves to be widely inappropriate for the regulation of damages incurred during armed conflicts. Nothing stands in the way, however, of activating the criminal liability of members of armed groups and non-State actors having a nexus with an armed conflict if they infringe rules of international humanitarian law which 77

Sandra Kraehenmann, Positive obligations in human rights law during armed conflicts, in: Kolb/Gaggioli, op. cit. (fn. 2), pp. 170 – 87. On this topic see also IACtHR, judgment of 15. 9. 2006, Mapiripán Massacre v. Colombia, No. 134, para. 114. 78 See Eric David, The International Humanitarian Fact-Finding Commission and the law of human rights, in: Kolb/Gaggioli, op. cit. (fn. 2), pp. 570 – 573; Tomuschat, op. cit. (fn. 72), p. 199. 79 See ICJ, Nuclear Weapons, op. cit. (fn. 71), para. 105; further explanations are given by Tomuschat, op. cit. (fn. 72), p. 200. 80 For a more detailed analysis on this point see Tomuschat, op. cit. (fn. 72), pp. 201 – 03.

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are binding on them.81 It is generally recognized that if non-State actors operate in a situation where international humanitarian law is applicable, those groups are legally bound by its basic rules.82 Particularly violations of the duties laid down in common Article 3 of the four Geneva Conventions are regarded as grave breaches of international humanitarian law,83 and States parties are obliged either to bring persons alleged to have committed such gross human rights violations before domestic courts or to hand such persons over for trial to another contracting party.84

IV. Increasing Interplay of the Approaches to Human Dignity in International Human Rights and Humanitarian Law In spite of the differences described above between the two bodies of law, it cannot be denied that a profound transformation of international humanitarian law under the pervasive influence of human rights protection has occurred today, which is not only conceivable with regard to the substance but also increasingly touches upon issues of accountability. 1. Transformation of the Shape of Today’s Armed Conflicts The growing impact that human rights protection has on the body of international humanitarian law is primarily due to the change of the shape of armed conflicts during the last decades. The archetype of conflicts for which the 1899 and 1907 Hague Regulations and the 1949 Geneva Conventions were made, was hostilities between regular armed forces of States, trying to impose their political will by weakening the military potential of the enemy.85 In this environment, which is qualified as international armed conflict, the principle arose that acts of violence may only be directed towards the military forces of the enemy, and that humanitarian provisions merely aim at placing restraints on the conduct of warfare so as to diminish its effects on the (non-belligerent) victims of the hostilities.86 In other words, the laws of armed conflicts for a long time viewed individuals’ rights rather as a mere side-effect of the rules governing hostilities, by primarily concentrating on States, belligerents and further organized collective entities. 81

Tomuschat, op. cit. (fn. 72), p. 205. Dieter Fleck, International Accountability for Violations of the Ius in Bello, 11 Journal of Conflict & Security Law 179 (2006), at p. 181; Marco Odello, Fundamental Standards of Humanity: A Common Language of International Humanitarian Law and Human Rights Law, in: Arnold/Quénivet, op. cit. (fn. 3), p. 15, at pp. 40 – 41. 83 See Article 130 GC III; Article 147 GC IV, and Article 85 AP I. 84 See Article 146 GC IV. 85 Sassòli, op. cit. (fn. 67), p. 45. 86 Cf. ICTY Trial Chamber, Kunarac, op. cit. (fn. 45), para. 470. 82

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Many contemporary armed conflicts, however, constitute a reality far removed from the archetype of international armed conflicts. They rarely, if at all, resemble traditional wars of regular armies of two belligerent States opposing each other horizontally on the battlefield. Even in non-international armed conflicts, the archetypal situation which was the point of reference when the 1977 Protocols to the Geneva Conventions were drafted, hardly exists anymore in the present age.87 Today’s conflicts are mostly asymmetric in nature. They include significantly less organized groups, such as guerilla, paramilitary, and terrorist groups or other non-State actors, and they regularly take place on the territories of several States.88 In most contemporary conflicts the parties are, in addition, rather unequal both from the point of view of the military means at their disposal or from a moral perspective,89 and these new forms of conflicts have often been the cause of widespread suffering and destruction.90 2. The Substantial and Growing Impact of Human Rights Protection in Armed Conflicts This changing pattern of modern armed conflict makes it difficult to apply the established rules of international humanitarian law, which were developed essentially for regular armies on the battlefield or in occupied territories. The diversity and complexity of today’s armed conflicts have, therefore, led to an increasing convergence in substance between human rights and international humanitarian law. The humanitarian character of the Additional Protocols (AP) of 1977, for instance, has largely been the result of the influence of human rights standards. This is clearly evidenced by the express references to human rights law that can be found in the Preamble of AP II which recalls that ‘international instruments relating to human rights offer a basic protection to the human person’. Furthermore, Article 72 AP I stresses that its rules regarding the treatment of persons in the power of a party to the conflict are additional to the protection of fundamental human rights. By introducing such references into the 1977 Additional Protocols, the States parties recognized the relevance of human rights law in non-international as well as in international armed conflicts.91 As a consequence, when applying international humanitarian norms, international courts are growingly taking human rights protection into consideration,92 and a sig87

Rightly Sassòli, op. cit. (fn. 67), p. 46. Cf. Sylvain Vité, Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations, 873 International Review of the Red Cross (2009), p. 88, at p. 91; Gowlland-Debbas/Gaggioli, op. cit. (fn. 2), p. 82. 89 Sassòli, op. cit. (fn. 67), p. 46. 90 See Odello, op. cit. (fn. 82), p. 15; Gowlland-Debbas/Gaggioli, op. cit. (fn. 2), p. 81. 91 Cf. Gowlland-Debbas/Gaggioli (fn. 2), p. 79. 92 See the examples given by the ICJ in the Wall Case, op. cit. (fn. 57), paras. 95, 111 – 113. Further see ICJ, judgment of 19. 12. 2005, ICJ Reports 2005, p. 168, at para. 219 – Armed Activities on the Territory of the Congo (Congo v. Uganda). 88

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nificant change towards the humanization of the law of armed conflicts has taken place. Not only in its famous Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons (1996), but also in several earlier judgments, the International Court of Justice (ICJ) held that a great many rules of international humanitarian law applicable in armed conflict are so fundamental to the respect of the human person that they must be observed by all States, irrespective whether they have ratified the Hague and Geneva Conventions and the Protocols that contain them, because they constitute “elementary considerations of humanity”,93 a “minimum yardstick” and “intransgressible principles” of international customary law.94 Modern international humanitarian law thus has an intrinsically humanitarian character which permeates the entire law of armed conflict and applies to all forms of warfare.95 This trend towards the humanization of armed conflict is also confirmed both by Article 50 (1) of the Articles on State Responsibility which prohibits as countermeasures any conduct which affects fundamental human rights, as well as by the fact that there are no boundaries separating customary humanitarian rules from customary rules of human rights law.96 The international criminal tribunals, too, constantly reflect that human rights law and international humanitarian law resemble each other in terms of goals, values and terminology.97 With regard to certain aspects, they acknowledge that humanitarian law provisions can even be said to have fused with human rights law.98 In the Furundzˇija case, for instance, the International Criminal Tribunal for the Former Yugoslavia (ICTY) expressly stated that the initial point and the primary purpose not only of human rights law but also of international humanitarian law was to safeguard human dignity.99 The Tribunal even considered the general principle of respect for human dignity not only to be the basic underpinning and the very raison d’être of both legal regimes but also that it was of such paramount importance as to permeate the whole body of international law. The entire edifice of human rights law and of the evolution of international humanitarian law was said to rest on the founding principle 93 ICJ, judgment of 9. 4. 1949, ICJ Reports 1949, p. 22 – Corfu Channel. See also ICJ, judgment of 26. 6. 1986, ICJ Reports 1986, p. 14, para. 218 – Nicaragua v. U.S. [Merits]. 94 ICJ, Nuclear Weapons, op. cit. (fn. 71) 1996, para. 79; see also ICJ, Nicaragua, op. cit. (fn. 93) 1986, para. 218. 95 ICJ, Nuclear Weapons, op. cit. (fn. 71) 1996, para. 86. See also ICTY Trial Chamber I, judgment of 16. 11. 2005, Case No. IT-01 – 48-T, Halilovic, para. 25. 96 Marco Sassòli, Le droit international humanitaire, une lex specialis par rapport aux droits humains?, in: Andreas Auer et al. (eds.), Les droits de l’homme et la constitution, Etudes en l’honneur de Giorgio Malinverni (2007), p. 375, at p. 385. 97 See, e. g., ICTY Appeals Chamber, judgment of 20. 2. 2001, Case No. IT-96 – 21-A, Celebici (Delalic et al.), para. 149; see also ICTY Trial Chamber, Kunarac, op. cit. (fn. 45), para. 467. 98 Cf. ICTY Trial Chamber, Kunarac, op. cit. (fn. 45), para. 467. 99 ICTY Trial Chamber, Furundzˇija, op. cit. (fn. 45), para. 162. See also ICTY Trial Chamber, Celebici, op. cit. (fn. 45), para. 552; upheld by ICTY Appeals Chamber, Celebici, op. cit. (fn. 97), para. 149.

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of respect for human life and human personality.100 The Trial Chamber alleged it was intended to shield human beings from outrages upon their personal dignity, irrespective of whether such atrocities are carried out by grossly attacking the body or by humiliating and debasing the honour, the self-respect or the mental well-being of a person.101 Hence, in an analogous way to human rights law, opinio juris obviously plays today a much greater role than usus in the field of humanitarian law. This is also shown by and a result of the Martens Clause which is laid down in the Preamble of the Second Hague Convention of 1899 and the Fourth Hague Convention of 1907, as well as in Article 1 (2) AP I. The clause intertwines the legal principle of humanity and the moral dictates of public conscience to the benefit of all human beings.102 In light of the way States and courts have implemented it, the Martens Clause clearly shows that principles of international humanitarian law may emerge through a customary process under the pressure of the demands of humanity, even where State practice is scant or inconsistent.103 The clause is therefore to be considered as one of the main compulsory sources of general international law itself.104 In a similar vein, the Inter-American Commission on Human Rights (IAComHR), when concerned with the death penalty imposed on child offenders, stated that norms of jus cogens derive their status from fundamental values held by the international community, as violations of such norms are considered to shock the conscience of humankind, and therefore bind the international community as a whole, irrespective of protest, recognition or acquiescence.105 With all this, it cannot but be concluded that the former sovereignty-oriented approach, which was exclusively applied in international law governing armed conflicts has gradually been supplanted by a human being-oriented view.106

100 Cf. ICTY Trial Chamber, Celebici, op. cit. (fn. 45), para. 200; ICTY Trial Chamber, judgment of 25. 6. 1999, Case No. IT-95 – 14/1-T, Aleksovski, para. 54. See also Cançado Trinidade, op. cit. (fn. 9), p. 189. 101 ICTY Trial Chamber, Furundzˇija, op. cit. (fn. 45), para. 183. Similar assessment by ICTY Trial Chamber, Kunarac, op. cit. (fn. 45), para. 163. 102 Helmut Strebel, Martens Clause, in: Rudolf Bernhardt (ed.), Encyclopedia of Public International Law, Vol. 3 (1982), pp. 252 – 253. 103 ICTY Trial Chamber, judgment of 14. 1. 2000, Case No. IT-95 – 16-T, Kupresˇkic´, paras. 527 – 528. 104 See Shigeki Miyazaki, The Martens Clause and International Humanitarian Law, in: Christophe Swinarksi, Etudes et essais sur le droit international humanitaire et sur les principes de la Croix Rouge en l’honneur de J. Pictet (1984), p. 438, at p. 440; Antônio Augusto Cançado Trinidade, International Law for Humankind – Towards a New Jus Gentium (2010), pp. 150 – 52. 105 IAComHR, Report 62/02 of 22. 10. 2002, Case No. 12.285, Michael Dominguez v. United States, para. 49. 106 See also ICTY Appeals Chamber, Judgment of 15. 7. 1999, Case No. IT-94 – 1-A, Tadic´, para. 97.

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Drawing upon the various provisions of human rights and international humanitarian law, be they treaty-based or customary in nature, it further shows that it is possible to identify a set of fundamental rights applicable to any human being, in all circumstances, without any restrictions whatsoever. In particular, the cruel and inhumane treatment of persons through torture or other degrading and humiliating illtreatment causing severe physical and mental suffering is absolutely inconsistent with the most fundamental rights of human beings.107 The prohibition of torture is so extensive that States are even barred by international law from expelling, returning or extraditing a person to another State where there are substantial grounds for believing that the person would be in danger of being subjected to torture.108 Because of the importance of values it protects and because of the barbarous nature of such acts, the prohibition of torture has evolved into a peremptory norm of international law which cannot be derogated from by States through international treaties or local or special customs, not even in times of emergency.109 Likewise, massive persecution when committed on discriminatory grounds, as well as the reprisal killing of innocent persons, more or less chosen at random, can safely be characterized as blatant infringements of the most fundamental principles of humanity and thus violate not only human rights but also international humanitarian law.110 In contrast, murder is not characterized in and of itself as an outrage upon personal dignity in human rights or in international humanitarian law.111 Murder causes death and might infringe the right to life, depending on the situation and the circumstances. However, the right to life differs from human dignity in that it is not absolute and inviolable in character both in peace and wartime. 3. New Trends of Accountability in Armed Conflicts Barring the exception of criminal law, human rights law generally provides, as has been indicated, for stricter and more effective enforcement and accountability mechanisms than this is the case in international humanitarian law. It is for this reason that individuals are growingly turning to human rights supervisory organs to adjudicate violations of international humanitarian law provisions and to gain civil compensation for damage suffered during armed conflicts. Some of these organs, in particular 107 ICTY Trial Chamber, Kunarac, op. cit. (fn. 45), para. 436. Further see ICTY Trial Chamber, judgment of 17. 10. 2003, Case No. IT-95 – 9-T, Simic´, para. 773, and ICTR Trial Chamber, judgment of 2. 9. 1998, Case No. ICTR-96 – 4-T, Akayesu, paras. 597, 687. 108 See, e. g., Human Rights Committee, General Comment No. 20, UN Doc. HRI\GEN\1\Rev. 1 at 30 (1994), para. 9; ECtHR, judgment of 7. 7. 1989, Application No. 14038/88, Soering v. United Kingdom, para. 91; judgment of 5. 11. 1996, Application No. 22414/93, Chahal v. United Kingdom, para. 74; settled case-law. 109 ICTY Trial Chamber, Furundzˇija, op. cit. (fn. 45), paras. 144, 153. 110 ICTY Trial Chamber, Kupresˇkic´, op. cit. (fn. 103), paras. 528 – 529. 111 Rightly ICTY Trial Chamber, judgment of 2. 11. 2001, Case No. IT-98 – 30/1-T, Kvocka, para. 172.

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the Inter-American Commission on Human Rights (IAComHR), occasionally venture into international humanitarian law,112 although this area is in principle not covered by the human rights conventions and not within the scope of the organs’ monitoring powers. To justify its dogmatically delicate application of humanitarian law, the Commission has affirmed that the common Article 3 of the Geneva Conventions “basically requires the State to do, in large measure, what it is already legally obliged to do under the American Convention”.113 The majority of the monitoring bodies, including the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), however, have rightly reviewed applications originating from armed conflicts only by resorting to the legal yardstick available to them, namely human rights law.114 The European Court, in particular, recognizes that the violation of human rights, some of which are also contained in common Article 3 of the Geneva Conventions, committed in a situation of military action, falls within the jurisdiction of the European system for the protection of human rights, when the State concerned has not declared a derogation under Article 15 ECHR.115 The Inter-American Court, in sharp contrast to the views of the InterAmerican Commission on Human Rights, has held that it is not competent to directly apply international humanitarian law116 but it uses this legal source in order to interpret human rights norms,117 since it considers that the whole international legal order has its roots in a universal juridical conscience.118 112 IAComHR, Recommendations of 18. 11. 1997, Abella v. Argentina (Tablada), Case No. 11.137, para. 271. 113 IAComHR, Abella v. Argentina, op. cit. (fn. 112), para. 158. Critical review by Liesbeth Zegveld, The Inter-American Commission on Human Rights and International Humanitarian Law: A Comment on the Tablada Case, 324 International Review of the Red Cross (1998), pp. 505 – 11. 114 Cf. ECtHR, judgment of 24. 2. 2005, Application No. 57950/00, Isayeva v. Russia; judgment of 12. 5. 2010, Application No. 9191/06, Suleymanova v. Russia, paras. 76 – 87; IACtHR, judgment of 4. 2. 2000 on preliminary objections, No. 67, Las Palmeras v. Columbia, para. 33. See also Human Rights Committee, General Comment No. 31, UN Doc. CCPR/C/ 21/Rev.1/Add.13 (26. 5. 2004), para. 11. 115 Cf. ECtHR, Isayeva, op. cit. (fn. 114), para. 191. Further see Lindsay Moir, The European Court of Human Rights and international humanitarian law, in: Kolb/Gaggioli, op. cit. (fn. 2), p. 280, at pp. 483 et seq. 116 IACtHR, Las Palmeras, op. cit. (fn. 114), para. 33. Further see Fanny Martin, Application du droit international humanitaire pour la Cour interaméricaine des droits de l’homme, 83 International Review of the Red Cross (2001), pp. 1037 – 1065. 117 See, very clearly, e. g., IACtHR, Mapiripán Massacre, op. cit. (fn. 77), paras. 114 – 115, with recourse to the rules of interpretation contained in Article 29 (b) of the American Convention on Human Rights. Further examples of the jurisprudence of the Court are given by Hélène Tigroudja, The Inter-American Court of Human Rights and international humanitarian law, in: Kolb/Gaggioli, op. cit. (fn. 2), p. 466, at p. 470. 118 Antônio Augusto Cançado Trinidade, Co-Existence and Co-ordination of Mechanisms of International Protection of Human Rights at Global and Regional Level, Collected Courses of the Hague Academy of International Law 202 (1987-II), p. 435. Critical as to the broad and dynamic interpretation of treaty rules undertaken by the IACtHR Gerald Neumann, Import,

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In some instances, human rights monitoring bodies even give human rights norms an extensive extraterritorial effect in order to cover military actions abroad.119 This approach is based on a liberal interpretation of the scope of application ratione loci of the human rights conventions, by extending States’ obligations to persons beyond their borders but subject to their jurisdiction.120 The assessment has gained support by the ICJ which stressed that while jurisdiction of the States is primarily territorial it may sometimes be exercised outside the national territory.121 The drafters of the human rights conventions did not intend to allow States to escape from their obligations when they exercise jurisdiction outside their own territory.122 Furthermore, there is some limited practice from human rights monitoring bodies which considers even non-State entities to be bound by human rights treaty law of the territorial State123 when they have gained control over territory, allowing them to exercise de facto government functions.124 This is particularly the case with regard to activities Export and Regional Consent in the Inter-American Court of Human Rights, 1 European Journal of International Law (2008), pp. 101 et seq.; Lucas Lixinski, Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law, 3 European Journal of International Law (2010), pp. 585 – 604. 119 See, e. g., ECtHR, judgment of 18. 12. 1996, Application No. 40/1993/435/514, Loizidou v. Turkey (Merits), paras. 56, 62 – 64; judgment of 16. 11. 2004, Application No. 31821/96, Issa v. Turkey, paras. 75 – 82. As to the limits of the extraterritorial application of human rights guarantees see, e. g., ECtHR, decision of 12. 12. 2001, Application No. 52207/99, Bankovic´, paras. 70 – 71; IAComHR, Report No. 86/99 of 29. 9. 1999, Case 11.589, Alejandre et al. v. Cuba (Brothers to the Rescue Case), para. 25; Human Rights Committee, Concluding Observations on Israel, UN Doc. C/CPR/C/79/Add.93 (18. 8. 1998), and UN Doc. CCPR/CO/78/ ISR (21. 8. 2003), para. 11. For a fuller account of the problem cf. Marko Milanovic´, Extraterritorial Application of Human Rights Treaties (2011), and Robert K. Goldman, Extraterritorial application of the human rights to life and personal liberty, including habeas corpus, during situations of armed conflict, in: Kolb/Gaggioli, op. cit. (fn. 2), pp. 104 – 124. 120 See Michael Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation, 99 American Journal of International Law (2005), p. 119, at p. 123. 121 See ICJ, Wall Case, op. cit. (fn. 57), paras. 107, 109; Congo v. Uganda, op. cit. (fn. 92), para. 216. Most recently ICJ, Order of 15. 10. 2008, Case Concerning Application of the International Convention on the Elimination of all Forms of Racial Discrimination [Georgia v. Russia], ICJ Reports 2008, p. 353, at para. 109. 122 See ICJ, Wall Case, op. cit. (fn. 57), paras. 109 – 111. 123 See, e. g., Human Rights Committee, General Comment No. 26, UN Doc. CPR/C/21/ Rev.1/Add.8/Rev.1 (8. 12. 1997), para. 4. See also UN Committee on the Rights of the Child, Report of 23. 7. 2001, UN Doc. CRC/C/108, para. 155; UN Committee Against Torture, Communication No. 120/1988, Opinion of 25. 5. 1999, Elmi v. Australia, UN Doc. CAT/C/22/ D/120/1999, para. 6.5. Further deliberations on the subject by Liesbeth Zegveld, The Accountability of Armed Opposition Groups under International Law (2002), pp. 39 et seq. 124 See Aristoteles Constantinides, Human Rights Obligations and Accountability of Armed Opposition Groups, 4 Human Rights and International Legal Discourse (2010), p. 93, at pp. 102 – 103. See also Christian Tomuschat, The Applicability of Human Rights Law to Insurgent Movements, in: Horst Fischer et al. (eds.), Krisensicherung und Humanitärer Schutz, Festschrift für Dieter Fleck (2004), pp. 573 – 591; Jan Arno Hessbruegge, Human Rights Violations Arising from the Conduct of Non-State Actors, 11 Buffalo Human Rights

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of armed groups not covered by international humanitarian law such as questions related to the occupation of territories controlled by an armed non-State actor.125 All these judicial developments do, of course, provoke additional methodological enquiries on the intertwining of human rights and humanitarian law in international case-law which cannot be explored here. Staying within the scope of this paper, it might suffice to note that although only States can in principle commit human rights violations, either through their own acts or by failing to fulfil their due diligence obligations with regard to abuses by non-State armed groups, the result is different when it comes to the dignity of the person. The Guatemalan Commission on Historical Clarification, for instance, applied the core standards of humanitarian and human rights law to both government and rebel forces by stressing that the dominant trend today is to consider that human dignity is equally infringed, regardless of who commits the acts that violate it.126 Furthermore, Philip Alston, a United Nations Special Rapporteur, in the report on his mission to Sri Lanka in 2006, clearly stated that “… armed groups must accept that insofar as they aspire to represent a people before the world, the international community will evaluate their conduct according to the Universal Declaration’s common standard of achievement”.127 Both views are strongly supported by Article 3 common to the four Geneva Conventions, which explicitly states that it is binding on each party to a conflict not of an international character, including non-State armed groups, regardless of the fact that only States may become parties to international treaties.128 The approach adopted is thus to apply a minimum of the basic rules to all conflict situations and to all actors involved, not only by treaty but also by customary law.129 The application of the core standards of human rights law to armed groups in situations in or outside armed conflict is, hence, again very much linked to the development of jus cogens norms. The international community has legitimate expectations that all States and all non-State actors exercising power over territory will comply with certain norms such as refraining Law Review (2005), p. 21, at pp. 40 – 41; Jan Willms, Courts of Armed Groups – a tool for inducing higher compliance with international humanitarian law?, in: Heike Krieger (ed.), Inducing Compliance with International Humanitarian Law (2015), p. 149, at p. 155. 125 Sandesh Sivakumaran, Re-envisaging the International Law of Internal Armed Conflict, 22 European Journal of International Law (2011), p. 219, at pp. 243 – 244; Jean-Marie Henckaerts/Cornelius Wiesener, Human rights obligations of non-state armed groups: a possible contribution from customary international law?, in: Kolb/Gaggioli, op. cit. (fn. 2), p. 146, at pp. 152 – 153. 126 Informe de la Comisión para el Esclarecimiento Histórico, Guatemala Memoria del Silencio (Vol. I, 1999), p. 46, para. 20. 127 Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, Mission to Sri Lanka, UN Doc. E/CN.4/2006/53/Add.5 (27. 3. 2006), para. 27. For more information cf. Andrew Clapham, Focusing on Armed Non-State Actors, in: Clapham/Gaeta, op. cit. (fn. 70), p. 766, at pp. 797 – 798. 128 See Appeals Chamber of the Special Court for Sierra Leone, decision of 31. 5. 2004, Prosecutor v. Sam Hinga Norman, Case No. SCSL-2004 – 14-AR72 (E), para. 22. 129 Henckaerts/Wiesener, op. cit. (fn. 125), p. 146.

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from committing gross human rights abuses.130 The importance of the application of peremptory norms of international human rights law therefore lies both inside as well as outside situations of armed conflict, because they reflect the universal juridical conscience.131

V. Human Dignity in International Criminal Law Finally, with a view to the fact that human rights norms in general, and the respect for human dignity in particular, have had a growing impact on the whole body of international law since the end of the Second World War, it is a logical consequence that gross and systematic infringements of the basic norms of international humanitarian and human rights law may amount, depending on the surrounding circumstances, to a war crime or a crime against humanity.132 Stated in other words, the amalgamation of the two bodies of law, as far as it touches their core value, i. e. the dignity of every human being, has not only led to a “humanization of international humanitarian law”133 but also to the strengthening of international criminal law. The Nuremberg Military Tribunal and the Tokyo Military Tribunal, which tried Nazi and Japanese leaders for international crimes, including war crimes and crimes against humanity, were crucially important for the emergence and implementation of international human rights law and for the consolidation and extension of humanitarian law. They contributed to weakening the dogma of State sovereignty, as individual perpetrators, for the first time in modern history, were denied the right to hide behind the sovereignty shield of their State of origin and were regarded as direct addressees of international obligations.134 In return, the concept of crimes against humanity prepared the ground for the recognition of rights belonging to all human beings without distinction. The Nuremberg and the Tokyo trials had recourse to natural law theories and favoured the idea that individuals are owed rights because of their intrinsic worth and dignity, independently of positive law.135 130 See International Law Association, Committee on Non-State Actors, First Report of the Committee, Non-State Actors in International Law: Aims, Approach and Scope of Project and Legal Issues, The Hague Conference (2010), paras. 3.2., 17. 131 Antônio Augusto Cançado Trinidade, International Law for Humankind, Towards a new Ius Gentium (2010), p. 726. See also Tigroudja, op. cit. (fn. 117), p. 472. Slightly differently: Henckaerts/Wiesener, op. cit. (fn. 125), p. 160. 132 See ICTY Trial Chamber, Kupresˇkic´, op. cit. (fn. 103), para. 621. 133 Theodor Meron, The Humanization of International Humanitarian Law, 94 American Journal of International Law (2000), p. 239, at p. 266. See also David Koller, The Moral Imperative: Toward a Human Rights-based Law of War, 46 Harvard International Law Journal (2005), pp. 247 et seq. 134 Hertig Randall, op. cit. (fn. 20), p. 14. See also ICTY Appeals Chamber, Tadic´, op. cit. (fn. 106), para. 58. 135 Hertig Randall, op. cit. (fn. 20), p. 14.

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Whereas both Military Tribunals can therefore be regarded as pioneers and catalysts for the breakthrough of international human rights protection, the contemporary international criminal tribunals constantly borrow arguments from human rights law which has significantly evolved during the last decades. Human rights are considered today as an uncontested source of law for international criminal tribunals.136 One normative fruit of this development can be seen in the widening ratione personae of the protection of the individual in time of armed conflict. Article 8 of the Statute of the International Criminal Court (ICC Statute) expands the notion of war crimes to include those committed against any civilian, thus going beyond the notion of protected persons under international humanitarian law. The current case-law of the international criminal tribunals makes extensive use of this provision.137 Another, more general provision influenced by the constantly increasing ‘humanization’ of the international legal order is Article 21 (3) ICC Statute, which refers to internationally recognized human rights as those that can serve in the interpretation of the Statute provisions.138 International criminal courts have also started to give incremental observance to the interplay between human rights and international humanitarian law by repeatedly making reference to their respective provisions for the definition of certain crimes.139 The ICTY explicitly considers the principle of humane treatment as common to both

136 For a general overview see Antonio Cassese, L’influence de la CEDH sur l’activité des Tribunaux pénaux internationaux, in: Antonio Cassese/Mireille Delmas-Marty (eds.), Crimes internationaux et juridictions internationales (2002), pp. 143 – 182, Gilbert Bitti, Article 21 of the Statute of the International Criminal Court and the treatment of sources of law in the jurisprudence of the ICC, in: Carsten Stahn/Göran Sluiter (eds.), The Emerging Practice of the International Criminal Court (2009), pp. 285 – 304. See also Damien Scalia, Human rights in the context of international criminal law: respecting them and ensuring respect for them, in: Kolb/ Gaggioli, op. cit. (fn. 2), p. 575, at p. 576. 137 See René Provost, The International Committee of the Red Widget? The Diversity Debate and International Humanitarian Law, 40 Israel Law Review (2007), pp. 633 et seq.; Gowlland-Debbas/Gaggioli, op. cit. (fn. 2), p. 79. 138 As regards this clause see Joe Verhoeven, Article 21 of the Rome Statute and the ambiguities of applicable law, 33 Netherlands Yearbook of International Law (2002), pp. 2 – 22; Alain Pellet, Applicable Law, in: Antonio Cassese/Paola Gaeta/John W. R. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), pp. 1079 – 1080. 139 See, e. g., ICTY Trial Chamber, judgment of 7. 5. 1997, Case No. IT-94 – 1-T, Tadic´, para. 697; ICTY Trial Chamber, Celebici, op. cit. (fn. 45), paras. 465 – 469, 481 – 490; ICTY Trial Chamber, judgment of 3. 3. 2000, Case No. IT-95 – 14-T, Blaskic´, para. 220; upheld by ICTY Appeals Chamber, judgment of 29. 7. 2004, Case No. IT-95 – 14-A, Blaskic´, paras. 136, 143. Similarly ICC, Trial Chamber I, Judgment of 14. 3. 2012, Case No. ICC-01/04 – 01/06, Lubanga, paras. 604 – 606, and Special Court for Sierra Leone, Trial Chamber, judgment of 28. 5. 2008, Case No. SCSL-04 – 14-A, Fofana and Kondewa, para. 192. See also, although with a more superficial reasoning, ICTR, Trial Chamber, judgment of 15. 5. 2003, Case No. ICTR-97 – 20-T, Semanza, paras. 13, 349 – 350.

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legal regimes,140 and has concluded that recourse to human rights law is not precluded in times of armed conflict. In cases where the accused is charged with a violation of the principle of humane treatment, the Tribunal holds it immaterial whether an armed conflict is international or non-international in character.141 In the Mucic case, the ICTY even pondered that both international humanitarian law and human rights law take as starting point their common concern to safeguard human dignity, which forms the basis of their minimum standards of humanity.142 However, notwithstanding this dynamic and the desire of international human rights to expand into all conceivable areas, including the law of armed conflict, not every denial of a human right may constitute a crime against humanity or an offense against human dignity.143 To reach the level of gravity required by the statutes of the international criminal tribunals, the act or omission needs to be a gross or blatant denial of a fundamental human right.144 Minor contempt for the physical or mental integrity of a victim may constitute a human rights violation or a criminal offense but it does not necessarily result in a crime against humanity.145 The ICTY in the Kupresˇkic´ case clear-sightedly held that there may be certain types of property, the destruction of which may not have a severe enough impact on the victim so as to constitute a crime against humanity, even if such destruction is perpetrated on discriminatory grounds: an example the Tribunal has given is the burning of someone’s car. The comprehensive destruction of homes and property, in contrast, may well constitute a destruction of the livelihood of the victim and has the same inhumane consequences as a forced transfer or deportation.146 In a similar vein, the international criminal tribunals regularly emphasize their mindfulness of the specificity of human rights and humanitarian law and the distinct role and function attributed to States and individuals in each regime.147 For instance, human rights treaties provide for a far-reaching prohibition against forced or compulsory labour, whereas not all types of such labour are regarded as per se being unlawful under international humanitarian law.148 Only

140 ICTY Trial Chamber, Simic´, op. cit. (fn. 107), para. 91; ICTY, Trial Chamber, judgment of 15. 3. 2002, Case No. IT-97 – 25-T, Krnojelac, para. 181. 141 See ICTY Appeals Chamber, Tadic´, op. cit. (fn. 106), paras. 97 et seq. 142 ICTY Appeals Chamber, judgment of 20. 2. 2001, Case No. IT-96 – 21-A, Mucic et al., para. 149. 143 Rightly ICTY, Trial Chamber, Krnojelac, op. cit. (fn. 140), para. 434. 144 See, e. g., ICTY Trial Chamber, Kupresˇkic´, op. cit. (fn. 103), para. 618; ICTY Trial Chamber, judgment of 17. 1. 2005, Case No. IT-02 – 60-T, Blagojevic, para. 580. 145 ICTY Trial Chamber, Kunarac, op. cit. (fn. 45), para. 501; ICTY Trial Chamber, Krnojelac, op. cit. (fn. 140), para. 181. 146 ICTY Trial Chamber, Kupresˇkic´, op. cit. (fn. 103), para. 631. 147 See, for instance, ICTY Trial Chamber, Celebici, op. cit. (fn. 45), para. 266; ICTY Trial Chamber, Kunarac, op. cit. (fn. 45), para. 470; ICTY Trial Chamber, Krnojelac, op. cit. (fn. 140), para. 181. 148 ICTY Trial Chamber, Simic´, op. cit. (fn. 107), paras. 84 – 86.

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substantial gravity of abuse and injury might be considered as types of modern slavery which are likewise proscribed by human rights and humanitarian law.149 In this context, it is also interesting to note that today’s international criminal law imposes criminal liability also for crimes committed outside situations of armed conflict, notably for the crime of genocide and crimes against humanity. Both crimes do not require a nexus with armed conflict. Armed groups and individual members of those groups incur the direct obligation to respect the minimum standards of humanity under all circumstances deriving from peremptory norms of human rights law.150 While war crimes are linked to obligations under humanitarian law applicable in armed conflict, the ability for members of armed groups and non-State actors to commit crimes against humanity presupposes the existence of basic human rights obligations on the part of such entities and individuals.151 Parts of international criminal law have therefore developed in the context of the interaction of the two fields of human rights law and humanitarian law, as a response to egregious violations of human rights in the absence of effective alternative mechanisms for enforcing the most basic of humanitarian standards. Keeping all that in mind, there is no doubt that the international legal system, as it stands today, has adopted a holist approach to the most basic rights of the person. The cross-fertilization between human rights, international humanitarian law and international criminal law in the field of the protection of the dignity of every individual, without any exception, shows the deep unity and the common basic goals of the whole international legal order. It is, therefore, not astonishing that the ICTY considers that, beside retribution and deterrence, one of the most important purposes of a sentence imposed by an international criminal tribunal is to make abundantly clear that the most fundamental humanitarian prerogatives of the international legal system are implemented and enforced.152 Sentencing perpetrators for the most heinous crimes against human rights and international humanitarian law shows the people of the world that there is no impunity for these types of crimes, thereby giving unequivocal voice to the moral demands that are based on the ethics and the consciousness of the public.153 In addition, sentencing is built on the hope of bringing justice to the victims, of establishing the historical truth, and, last but not least, of contributing to processes of reconciliation in the societies concerned.154 Whether and, if so, to what 149

Cf. Hans-Peter Gasser/Knut Dörmann, Protection of the Civilian Population, in: Fleck, op. cit. (fn. 70), p. 231, at p. 289. 150 See Odello, op. cit. (fn. 82), p. 39; Henckaerts/Wiesener, op. cit. (fn. 125), p. 154. 151 Claus Kreß, Transnational violence, in: Marco Odello/Giann Luca Beruto (eds.), NonState Actors and International Humanitarian Law: Organized Armed Groups – A Challenge for the 21st Century (2010), p. 139, at pp. 162 – 63. 152 ICTY Trial Chamber, Kupresˇkic´, op. cit. (fn. 103), para. 848. 153 Ibid.; further see ICTY Appeals Chamber, judgment of 17. 12. 2004, Case No. IT-95/14/ 2-A, Kordic and Cerkez, paras. 1080, 1082. 154 Oliver Diggelmann, Staatsverbrechen und internationale Justiz, 45 Archiv des Völkerrechts (2007), p. 382, at pp. 393 and 396.

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extent, the crimes are integrated into the collective narratives of the respective societies is, however, beyond the laws’ and the international criminal tribunals’ influence.155

VI. Conclusion The considerations presented here do not lay claim to even come close to fully illuminating the concept of human dignity in human rights, humanitarian and international criminal law. Yet, throughout all the international case-law available on the matter, there seems to be widespread unanimity on one point: the core value of the dignity of the person is the underlying approach to all these three bodies of law. Their normative regimes are premised on the idea of the universality of the most fundamental human rights and buttressed by the similarity of their shared values for the protection of the dignity of all individuals, without distinction, under all circumstances.156 Shaped by history, human rights, humanitarian law and international criminal law have all been crystallized through the experience of immense human suffering caused by State-organized or State-sponsored violence. Hence, the respect for human dignity and the preponderance of the principle of humanity are nowadays widely identified as being the ultimate goal of the whole international legal order, thereby imposing limits on the raison d’Etat.157 Or in other words, the maxim of Roman law ‘hominum cause omne jus constitutum est’ (law is made for the benefit of human beings) has achieved a firm foothold in international law.158 It is true that, as are all other legal areas, the field of humanitarian and human rights law remains dynamic and evolving, since it constantly has to address new threats to freedom and human well-being in times of peace and armed conflicts. However, like any powerful vision, the idea of human dignity and the promise of freedom and equality it represents, cannot be reversed.159

155

See Alexander Mitscherlich/Magarete Mitscherlich, Die Unfähigkeit zu trauern – Grundlage kollektiven Verhaltens (1977, reprinted 2004); further see Diggelmann, op. cit. (fn. 154), p. 398. 156 Rightly Orna Ben-Naftali, Introduction, in: id., op. cit. (fn. 67), p. 3, at p. 4; see also Cordula Droege, The Interplay between International Humanitarian Law and International Human Rights Law in Situations of Armed Conflict, 40 Israel Law Review (2007), p. 310, at p. 312. 157 Cançado Trinidade, op. cit. (fn. 9), p. 195. 158 See Appeals Chamber, Tadic´, op. cit. (fn. 106), para. 97. 159 Hertig Randall, op. cit. (fn. 20), p. 23, with reference to Friedrich Dürrenmatt, Die Physiker (1962): “Was einmal gedacht wurde, kann nicht mehr zurückgenommen werden” (“Nothing that has been thought can ever be taken back”).

Human Dignity and Freedom of Religion By Kyrill-A. Schwarz

I. Introduction Under the case law of the German Federal Constitutional Court (Bundesverfassungsgericht), freedom of belief, as enshrined in Art. 4 of the German Federal Constitution (Grundgesetz, abbreviated GG), “is a specific expression of the human dignity, guaranteed in Art. 1 (1) GG”,1 it is “closely linked with […] human dignity as the highest value in the system of basic rights (Grundrechte)”.2 These statements, which indicate that human dignity is a special right which informs the freedom of religion, have led to numerous dogmatic challenges in constitutional law, because – without prejudice to the nearly unlimited acceptance of these assumptions in academia3 – these formulae raise more questions than one could possibly suppose. Firstly, the question has to be answered, whether the assumption that basic rights have human dignity as a central core component – or in other words, that all basic rights in the GG contain human dignity – is correct (see below section II.). Secondly, there is the question of whether there are specific reasons, in the context of freedom of religion, which would justify establishing a close connection between freedom of reli1

BVerfGE 33, 23 (28 et seq.); cf. also BVerfGE 12, 45 (53 et seq.); 48, 127 (163). BVerfGE 35, 367 (376), further also BVerfGE 32, 98 (108); 52, 223 (247); 108, 282 (305). 3 Cf. only Peter Badura, Der Schutz von Religion und Weltanschauung durch das Grundgesetz, 1989, p. 32; Ernst Benda, Menschenwürde und Persönlichkeitsrecht, in: Ernst Benda/ Werner Maihofer/Hans-Jochen Vogel (eds.), Handbuch des Verfassungsrechts, vol. 2, 1995, § 6 ref. 11; Martin Borowski, Die Glaubens- und Gewissensfreiheit des Grundgesetzes, 2006, p. 270; Michael Germann, in: Volker Epping/Christian Hillgruber (eds.), Grundgesetz, vol. 2, 2013, Art. 4 ref. 1; Peter Häberle, Die Menschenwürde als Grundlage der staatlichen Gemeinschaft, in: Josef Isensee/Paul Kirchhof (eds.), Handbuch des Staatrechtes der Bundesrepublik Deutschland, vol. II, 3rd ed., 2004, § 22 ref. 56 et seq.; Matthias Herdegen, in: Theodor Maunz/Günter Dürig, Grundgesetz, vol. 55, 2009, Art. 1 ref. 26; Roman Herzog, in: ibid., 2014, Art. 4 ref. 11; Josef Isensee, Würde des Menschen, in: Detlef Merten/Hans-Jürgen Papier (eds.), Handbuch der Grundrechte in Deutschland und Europa, vol. IV, 2011, § 87 ref. 125; Martin Morlok, in: Horst Dreier (ed.), Grundgesetz, vol. 3, 2013, Art. 4 ref. 43; Ulrich Scheuner, Rudolf Schmend zum 85. Geburtstag, Die Öffentliche Verwaltung, 1967, pp. 585 (589). Particularly obvious Juliane Kokott, in: Michael Sachs (ed.), Grundgesetz, vol. 7, 2014, Art. 4 ref. 3: “The freedom of belief and conscience is part of the human rights of modern-age human rights declarations. To this effect these guarantees are in particular shaped by personal rights and human dignity.”. 2

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gion and human dignity (see below section III.). Finally the question has to be answered, which conclusions must be drawn, supposing that human dignity is contained in the freedom of religion (see section IV.).

II. Human Dignity and Basic Rights 1. The Content of Human Dignity in the Basic Rights The guarantee of human dignity is the central basis and orientation of modern constitutions and present-day constitutionalism (Verfassungsstaatlichkeit). This principle is made legally binding in Art. 1 GG.4 Human Dignity is in constitutional theory the basis – or in the words of the German Federal Constitutional Court, the “root” (Wurzel)5 – of all basic rights.6 If Art. 1 (1) GG, as a fundamental normative principle, is the benchmark and goal of all constitutional guarantees, it appears that a specific human dignity content is attached to all basic rights,7 i. e. that human rights thus quasi have a human dignity core. In accordance with this proposition, a correlation between the guarantee of human dignity and “subsequent” rights (the following X articles of the German Constitution enumerate other basic rights) can be explained systematically, as the specific expression given to human dignity within the proportions and contours of the specific freedom rights and equality rights of the Federal Constitution.8 Especially the causal link between human dignity and human rights content (Art. 1 (2) GG), and the systematic link with the “subsequent“ basic rights (Art. 1 (3) GG), indicate a strengthening of the individual basic rights with elements of human dignity, by which the extent varies from right to right. So the evolution of the general right of privacy (Allgemeines Persönlichkeitsrecht) certainly reflects the very strong link between human dignity and general freedom of action (Allgemeine Handlungsfreiheit).9 However the protection of human life (Schutz des Lebens) under 4 Paul Kirchhof, Die Wertgebundenheit des Rechts, ihr Fundament und die Rationalität der Rechtsfortbildung, in: Eilert Herms (ed.), Menschenbild und Menschenwürde, 2001, pp. 156 (157). 5 BVerfGE 93, 266 (293). 6 Cf. for example Ernst Benda, Menschenwürde und Persönlichkeitsrecht, in: Benda/ Maihofer/Vogel (eds.), op. cit. (fn. 3), § 6 ref. 10; Günter Dürig, Der Grundrechtssatz von der Menschenwürde, Archiv des öffentlichen Rechts 81, 1956, pp. 117 (119); Peter M. Huber, in: Hermann von Mangoldt/Friedrich Klein/Christian Starck (eds.), Grundgesetz, vol. 6, 2010, Art. 19 ref. 126 et seq.; Klaus Stern, Das Staatsrecht der Bundesrepublik Deutschland, vol. III/ 1, 1988, pp. 35 et seq. (916); Peter Unruh, Der Verfassungsbegriff des Grundgesetzes, 2003, p. 534. 7 Peter M. Huber, in: Mangoldt/ Klein/Starck (eds.), op. cit. (fn. 6), Art. 19 ref. 127. 8 Herdegen, in: Maunz/Dürig, op. cit. (fn. 3), Art. 1 ref. 26; similiar also Philip Kunig, in: Ingo v. Münch/Philip Kunig (eds.), Grundgesetz, vol. 6, 2012, Art. 1 ref. 69. 9 For a detailed treatment, cf. Udo Di Fabio, in: Maunz/Dürig, op. cit. (fn. 3), Art. 2 ref. 126 et seq.; for jurisprudence of the German Constitutional Court (BVerfG) cf. : BVerfGE 6, 389 (433); 27, 1 (6); 32, 373 (378 et seq.); 34, 269 (282); 35, 202 (219 et seq.); 65, 1 (41);

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Art. 2 (2) GG also requires special protection in the regime of the Federal Constitution, as – according to the case law of the Federal Constitutional Court – life is the vital basis of the guarantee of human dignity.10 However, the assumption that human dignity is the “root” of all basic rights – or in other words that it is the foundation of all basic rights11 – has, regardless of its allure, been seriously challenged. The idea that other rights, for example the film-making freedom (Filmfreiheit) or the freedom of broadcasting (Rundfunkordnung) under Art. 5 (1) GG somehow allow for recourse to human dignity, seems, in the plain light of day, to be an overextension of human dignity12 and, consequently, more like a way to depreciate the highest value in the Constitution.13 In addition, the assumption of the untouchable content of human dignity in the all basic rights – as protected by Art. 79 (3) GG – even from the constitution-amending legislature – seems mistaken, as it ignores a central message of Art. 79 (3) GG: the guarantee that certain basic rights cannot be changed, called the “eternity clause” (Ewigkeitsgarantie), extends to the fundamental rights in Art. 1 and Art. 20 GG, but not from Art. 1 to Art. 20 GG, and, therefore was never intended to give the same high level of protection to all basic rights using the human dignity core.14 Yet the assumption – in its conclusion less far reaching – that all basic rights contain an absolutely protected core of human dignity15, is hardly elaborated or applied in a consistent way.16 The pattern of “core” and “peel”, untouchable centre and fluc67, 100 (142 et seq.); 79, 256 (268 et seq.); 80, 267 (373 et seq.); 90, 263 (270); 95, 220 (241); 99, 185 (193); 101, 106 (121) – settled case law.; for further case law of the civil law courts, cf: BGHZ 13, 334 (338); 24, 72 (76); 35, 363 (367); 50, 133 (143); 73, 120 (122); 98, 32 (34); 128, 1 (10) – settled case law. 10 BVerfGE 39, 1 (41). 11 Josef Isensee, Würde des Menschen, in: Merten/Papier (eds.), op. cit. (fn. 3), § 87 ref. 111. 12 Critically, because of that cf. Horst Dreier, in: Dreier (ed.), op. cit. (fn. 3), Art. 1 ref. 161. 13 Correspondingly the conclusion of the Federal Constitutional Court that “[…] not only some, but all basic rights are concretions of the principle of human dignity […]”, appears generalised and not appropriate, however BVerfGE 93, 266 (293); similiarly BVerfGE 107, 275 (284). 14 For a critical treatment, see Dreier, in: Dreier (ed.), op. cit. (fn. 3), Art. 1 ref. 162; Isensee, Positivität und Überpositivität der Grundrechte, in: Merten/Papier (eds.), op. cit. (fn. 3), § 26 ref. 51; Isensee, Würde des Menschen, in: Merten/Papier (eds.), op. cit. (fn. 3), § 87 ref. 122; Kunig in: v. Münch/Kunig (eds.), op. cit. (fn. 8), Art. 1 ref. 68. 15 See for example, Erhard Denninger, Die Wirksamkeit der Menschenrechte in der deutschen Verfassungsrechtsprechung, Juristenzeitung 1998, pp. 1129 (1134); Eric Hilgendorf, Die mißbrauchte Menschenwürde, Jahrbuch für Recht und Ethik 7 1999, pp. 137 (143); Huber, in: v. Mangoldt/Klein/Starck (eds.), op. cit. (fn. 6), Art. 19 ref. 127. 16 For explicit criticism by Dreier see Dreier (ed.), op. cit. (fn. 3), Art. 1 ref. 163 et seq.; Isensee, Positivität und Überpositivität der Grundrechte, in: Merten/Papier (eds.), op. cit. (fn. 3), § 26 ref. 51; Isensee, Würde des Menschen, in: Merten/Papier (eds.), op. cit. (fn. 3), § 87 ref. 122.

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tuating outer layer, already appears dogmatically mistaken, as every single basic right constitutes a self-contained parameter, which should not be decompiled.17 Beyond that, such an assumption suggests that the guarantee of human dignity, as the centre, would contain in the subsequent basic rights a variety of “branches”.18 By the way, the next question, according to which criteria protected zones should be determined, i. e. how strong or weak the individual ties of human dignity to the particular basic rights should be, can hardly be answered using objective criteria; thus any attempt at a classification of basic rights into categories with a stronger or a weaker core of human dignity, is a project doomed to failure.19 2. The Deduction of Basic Rights from Human Dignity The attempt at deducing basic rights from human dignity in Art. 1 (1) GG turns out to be even more problematic. This applies not only to this particular understanding of human dignity as the basis and claim for further rights,20 but also to the approach which understands human dignity as the starting point for all important ideas of liberty and equality as dignified minimum standards.21 Both approaches clearly overstretch the material content of the guarantee of human dignity and ignore the intrinsic value of guarantees of liberty and equality in constitutional law.22 Consequently, these approaches devalue the particular and unique importance of human dignity.

III. Freedom of Religion as Concretised Human Dignity? Although there are indeed general concerns about expanding individual basic rights which have human dignity content, nevertheless one should not ignore the fact that freedom of religion, in particular, is closely linked to human dignity.23 If one understands the guarantee of human dignity so that it also includes the guarantee that each individual human being’s right to a self-determined life following a self-

17

Isensee, Positivität und Überpositivität der Grundrechte, in: Merten/Papier (ed.), op. cit. (fn. 3), § 26 ref. 51. 18 On this point cf. Isensee, Würde des Menschen, in: Merten/Papier (ed.), op. cit. (fn. 3), § 87 ref. 121. 19 Cf. only Dreier, in: Dreier (ed.), op. cit. (fn. 3), Art. 1 ref. 163. 20 Cf. only Christoph Enders, Die Menschenwürde in der Verfassungsordnung, 1997, pp. 501 et seq. 21 In this sense e. g. Karl-Eberhard Hain, Die Grundsätze des Grundgesetzes, 1999, pp. 197 et seq., pp. 224 et seq, pp. 252 et seq. 22 Herdegen, in: Maunz/Dürig, op. cit. (fn. 3), Art. 1 ref. 22; for critical opinion cf. also Dreier, in: Dreier (ed.), op. cit. (fn. 3), Art. 1 ref. 162. 23 Herzog, in: Maunz/Dürig, op. cit. (fn. 3), Art. 4 ref. 11.

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determinable life script24 should be respected by the state, consequently, this also means, in other words, that each individual has the right to live as she/he sees fit (das Recht, nach eigener façon selig werden zu können). It follows that if human dignity is understood as also and especially protecting the autonomy of the individual in his ability to arrange her/his life self-dependently,25 this should apply particularly to freedom of religion, as it is considered as a meaningful orientation of human beings in relation to the personal ideas and values they should have about life and the world.26 Autonomy is unthinkable without protection of religious expression.27 Correspondingly, the freedom of belief and expression in Art. 4 GG guarantees a space for the individual, in which the individual can design a life plan so that it matches her or his individual beliefs. A conviction can either be a religious expression or non-religious one, i. e. or even an anti-religious or religion-free one. Therefore, this guarantee also includes the right not to be a member of or follow the rules of churches or similar organizations.28 In conclusion, this means that freedom of religion is based on an idea of personal freedom, which regards human dignity as the basis of a philosophy of life chosen without compulsion and thereby assigns an ethical responsibility, without confusing this with the randomness of free actions.29 The approach in constitutional theory outlined here can also be found in important church statements. The central text of the Catholic Church, the Second Vatican Council’s “Declaration on Religious Freedom” (Dignitas Humanae) of December 7, 1965, is an example of such a statement. The declaration begins stressing the value of free belief and proceeds by differentiating freedom of belief and consciousness explicitly from the “dignity of the human person”.30 One can hardly doubt that the occidental Christian roots of our understanding of human dignity can be found in this statement.31 24 Badura, op. cit. (fn. 1), p. 73; Huber, in: v. Mangoldt/Klein/Starck (eds.), op. cit. (fn. 6), Art. 19 ref. 127. 25 BVerfGE 45, 187 (227); 87, 209 (228); 115, 118 (153); for an in detail treatment of autonomy as a central term of human dignity cf. also Isensee, Würde des Menschen, in: Merten/Papier (eds.), op. cit. (fn. 3), § 87 ref. 79; for a detailed treatment, cf, also Unruh, op. cit. (fn. 6), pp. 340 et seq. 26 Morlok, in: Dreier (ed.), op. cit. (fn. 3), Art. 4 ref. 43. 27 Herzog, in: Maunz/Dürig, op. cit. (fn. 3), Art. 4 ref. 11. 28 BVerfGE 33, 23 (28 et seq.); see further Otto Kimminich, Religionsfreiheit als Menschenrecht, 1990, p. 40. 29 In this sense cf. Badura, op. cit. (fn. 1), pp. 32 et seq. 30 Cf. Kimminich, op. cit. (fn. 28), pp. 38 et seq.; Stefan Mückl, in: Wolfgang Kahl/Christian Waldhoff/Christian Walter (eds.), Bonner Kommentar, vol. 135, 2008, Art. 4 ref. 48. 31 On this understanding cf. Benda, Menschenwürde und Persönlichkeitsrecht, in: Benda/ Maihofer/Vogel (eds.), op. cit. (fn. 3), § 6 ref. 2; Isensee, Würde des Menschen, in: Merten/ Papier (eds.), op. cit. (fn. 3), § 87 ref. 86 et seq.; Kirchhof, Die Wertgebundenheit des Rechts, ihr Fundament und die Rationalität der Rechtsfortbildung, in: Herms (ed.), op. cit. (fn. 4), pp. 156 (162); Starck, in: v. Mangoldt/Klein/Starck (eds.), op. cit. (fn. 6), Art. 1 ref. 5; Dreier explicitly expressed a different opinion in Dreier, in: Dreier (ed.), op. cit. (fn. 3), Art. 1

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IV. The Consequences of the Freedom of Religion as a Concrete Expression of Human Dignity If one could come to the intermediate result that the autonomy guaranteed by human dignity also has central importance for the freedom of belief under Art. 4 GG, the question then arises as to which conclusions can be drawn therefrom. If one puts autonomy on the same level with free decision making on the basis of self-developed convictions, the content of human dignity in the freedom of religion appears obvious. The individual self-concept is crucial for the right of freedom of religion.32 The importance of the individual self-concept will now be examined, using the example of the circumcision debate (Beschneidungsdebatte), an extremely emotional discussion, which was marked predominantly by a mistaken understanding of the German Constitution. What was remarkable – this has to be noted here – was the ease with which the District Court of Cologne (LG Köln)33 unsuccessfully attempted to answer a question of highest sensitivity34, while at the same time ignoring extremely significant ethical, historical, philosophical and religious issues. It appears euphemistic to call the conduct of the Cologne Court “constitutional law illiteracy”. Undisputedly, it cannot be ignored that intercultural tensions and the existence of certain religious rites challenges the legal order more than slightly. Legal multiculturalism needs the stable framework provided by the German constitutional regime. Based on the fact that circumcision is not only a cultural act, among others things, but the (!) act determining affiliation with two Abrahamic religions, namely Judaism and Islam, it should also be undisputed that this rite is guaranteed by the basic right of freedom of religion under Art. 4 GG.35 Concepts like belief, religion and philosophy of life have their basis outside of the law and refer to a space which is only partly regulated since they cannot, without difficulty, be defined as constitutional law conref. 10: “Human dignity […] accrues from the mix of traditions of the ancien world, humanism and enlightenment”, which consequently takes away human dignity from its Christian basis. 32 On this conclusion cf. only Borowski, op. cit. (fn. 2), pp. 270 et seq. 33 LG Köln, Neue Juristische Wochenzeitschrift 2012, pp. 2128 et seq. 34 Cf. Holm Putzke, Juristische Positionen zur religiösen Beschneidung, Neue Juristische Wochenzeitschrift 2008, pp. 1568 et seq.; ibid., Medizinrecht 2008, pp. 268 et seq.; ibid., Festschrift für Rolf Dietrich Herzberg, 2008, pp. 669 et seq.; Maximilian Stehr/Hans-Georg Dietz, Monatsschrift Kinderheilkunde 2008, pp. 783 et seq.; Rolf Dietrich Herzberg, Juristenzeitung 2009, pp. 332 et seq.; ibid., Zeitschrift für Internationale Strafrechtsdogmatik 2012, pp. 471 et seq.; ibid., Medizinrecht 2012, pp. 169 et seq.; Günter Jerouschek, Neue Zeitschrift für Strafrecht 2008, pp. 313 et seq.; ibid., Festschrift für Friedrich Dencker, 2012, pp. 171 et seq.; Kyrill-A. Schwarz, Juristenzeitung 2008, pp. 1125 et seq.; ibid., Die aus religiösen Gründen gebotene Beschneidung und das Verfassungsrecht, in: Johannes Heil/Stephan Kramer (eds.), Beschneidung. Das Zeichen des Bundes in der Kritik. Zur Debatte um das Kölner Urteil, 2012, pp. 98 et seq.; ibid., Bayrische Verwaltungsblätter 2014, pp. 677 (679). 35 Germann, in: Epping/Hillgruber (eds.), op. cit. (fn. 3), Art. 4 ref. 50.4.

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cepts.36 Nevertheless, it has to be taken into account that the guarantee of individual religious freedom is characterised, like nearly any other basic right, by a maximum of personal content.37 As a consequence, court jurisprudence38 has given the comprehensive concept of freedom of belief various facets. Thus, the scope of protection of Art. 4 GG contains the right to align all actions with the rules of a religion in order to act according to one’s inner convictions.39 This means that in general every belief-driven action is protected by Art. 4 (1) and (2) GG and that to answer the question of which action is motivated by religion, one must take recourse to the understanding of each individual bearer of basic rights. The Federal Constitution provides for the self-determination of every bearer of a belief with regard to the understanding of the concepts of that person’s belief, the expression of those beliefs or religious worship and how the individual wants to practice or fulfil perceived religious duties.40 This brings one to the conclusion that one central tenet of the freedom of religion is to proscribe a material assessment of the worthiness of protection of a religious practice based on its compatibility with basic western ethical values.41 The issue which is at the centre of this analysis eventually raises the question of who is competent to determine what belief-driven behaviour is. For the crucial question, “if” there is protection by the basic rights, namely if an action has to be seen as a religious practice to be protected, one has to apply42 the self-concept of the religious group in question 43 – sometimes even the view of the individual bearer of basic rights, who is affected.44 Therefore one should refuse attempts to use the testimony of experts (Sachverständige) to decide whether the applicant has a mistaken understanding of his or her own religion. Unfortunately such an approach was undertaken by the Court in refusing to grant a license for ritual slaughter (rituelles Schächten) based on 36 For an extensive treatment of this problem, cf. Kyrill-A. Schwarz, Das christlichabendländische Fundament der Verfassungsinterpretation, in: Festschrift für Christian Starck, 2007, pp. 419, 422 et seq.; see also Stefan Muckel, Schutz von Religion und Weltanschauung, in: Merten/Papier (eds.), op. cit. (fn. 3), § 96 ref. 78. 37 Cf. also Martin Morlok, Selbstverständnis als Rechtskriterium, 1993, p. 52. 38 Like that explicitely BVerfGE 35, 366 (376); for a more restrictive interpretation, cf. BVerfGE 83, 341 (353). 39 BVerfGE 24, 236 (245 et seq.); 32, 98 (106) 33, 23 (28); 42, 312 (323); 84, 341 (353 et seq.); 93, 1 (15). 40 BVerfGE 24, 236 (247); 33, 23 (28 et seq.); 57, 220 (243 et seq.); 66, 1 (19 et seq., 22); 70, 138 (166 et seq.) 83, 341 (354 et seq.) – settled case-law. 41 Stefan Muckel, Religionsfreiheit für Muslime in Deutschland, in: Festschrift für J. Listl, 1999, pp. 239 – 249; Jörg Müller-Volbehr, Juristische Schulung 1997, pp. 223 (224 et seq.); Katharina Pabel, Europäische-Grundrechte Zeitschrift 2002, p. 220 (226); Kyrill-A. Schwarz, Das Spannungsverhältnis von Religionsfreiheit und Tierschutz am Beispiel des ‘rituellen Schächtens‘, 2003, pp. 19 et seq. 42 BVerwG, Neue Zeitschrift für Verwaltungsrecht 1996, p. 61 (62). 43 Thus BVerfGE 24, 236 (247 et seq.); 53, 366 (401); 83, 341 (356); presumably also BVerfGE 104, 337 (354). 44 Cf. in this regard BVerfGE 32, 98 (106 et seq.); 33, 23 (29); 35, 366 (375 et seq.).

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the reasoning that the Qur‘an does not demand ritual slaughter and moreover that the applicant was also allowed to eat fish.45 Art. 4 GG allows the individual bearer of basic rights the self-determination of what the individual understands as his or her beliefs, consciousness, denomination or practice of religion, and as a consequence, how that person wants to fulfil individual religious duties.46 Religion, therefore, is not open to interpretation by the State. If this were not so, the courts could at some point come to the conclusion that Easter Monday should not be a holiday, as it is general knowledge that the resurrection of Jesus did not take two days. Although the courts have moved away from this very broad kind of interpretation of religious practices in the meantime,47 nevertheless, case law has to bring to account that courts and public authorities can be highly suitable as keepers of the – in doubt not provable – substantial validity of religious beliefs, in the sense of rational justification. This means the State is not allowed to question particular religious beliefs as such or to determine that they are “right” or “wrong”.48 Particularly when examining the specific religious significance of circumcision, one has to take into consideration that a religious group’s expression of its religion though religious rituals and practices can only then be proscribed with binding force by the state legal order, if this would be contrary to the fundamental values of the legal order, which can be found, in particular, in the general prohibition of arbitrary action (Allgemeines Willkürverbot) in Art. 3 (1) GG, in the concept of “public morals” (“gute Sitten”) in § 138 BGB or in the ordre public in Art. 6 EGBGB49. Public order as the entirety of all non-written, extra-legal imperatives of morality, good taste, savoir-faire, and obedience, which is seen by prevailing contemporary legal opinion as the indispensable precondition for the pursuit of collective material prosperity, can, in the individual case, provide the State with a legal basis for intervention; notwithstanding all casuistic differentiations. It has to be noted here that circumcision is of central importance for the cultural-religious selfconcept of the persons concerned and thus is hardly in conflict with ordre public.50

45

Like that e. g. BVerwG, Neue Zeitschrift für Verwaltungsrecht 1996, p. 61 (62). Cf. in so far BVerfGE 24, 236 (247 et seq.); 32, 98 (108 et seq.); 33, 23 (28 et seq.); 42, 312 (322 et seq.); 46, 73 (84 et seq.); 53, 366 (391 et seq., 399, 401); 57, 220 (243 et seq.); BVerfGE 66, 1 (19 et seq., 22); 70, 138 (166 et seq.); 74, 244 (252 et seq.); 83, 341 (354 et seq.) – settled case-law. 47 BVerfGE 83, 341 (353). 48 BVerfGE 33, 23 (29 et seq.). Against this background, the proposal to postpone circumcision to a later date (namely religious maturity) seems presumptous, as the religious regime concerned prescribes an earlier date. 49 In that regard BVerfGE 70, 138 (168); Michael Droege, Staatsleistungen an Religionsgemeinschaften im säkularen Kulturstaat und Sozialstaat, 2004, p. 506; Stefan Magen, Der Rechtsschutz in Kirchensachen nach dem materiellrechtlichen Ansatz, Neue Zeitschrift für Verwaltungsrecht 2002, pp. 897 (900); Muckel, Schutz von Religion und Weltanschauung, in: Merten/Papier (eds.), op. cit. (fn. 3), § 6 ref. 80 et seq. 50 Cf. in this regard OLG Frankfurt, Neue Juristische Wochenzeitschrift 2007, pp. 3580 (3582). 46

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Summing up the discussion on circumcision in Germany, the underlying issue was “interpretational sovereignty”; who has the right to interpret whether religious practices come under the scope of protection of Art. 4 GG, and what degree of religious freedom is acceptable. What much of public opinion wanted was nothing other than aligning religious ideas with majority opinion; at the same time this would also have constituted the phenomenon of the exclusion of the minority opinion, which in practical terms would have meant the maltreatment of innocent boys. The liberal constitutional state, however, shows its strength in its treatment of the weak and vulnerable who are not part of the majority. The basic right guarantees of the Federal Constitution, as a corrective to the democratic decisions of the majority in or by the legislature51, are first and foremost protective rights of the individual against the State;52 they protect minority rights. The rights and liberties in the Federal Constitution therefore exist to limit the power of the democratically legitimated legislature to make or unmake laws at will.53

V. Conclusion The connection between human dignity and freedom of religion appears distinct, highlighting the issue of the autonomous determination of the contents of religious expression. Under the German Federal Constitution, which protects the right of religious autonomy, each religion must determine its own beliefs and practices, subject to mandatory but expansive public order rules.54 As the State, by specifically regulating religion, has to deal with phenomena which are postulated by religion and cannot be shaped by law, the basic right of freedom of religion, “as concept and legal answer to the plurality of human-, world- and god-views in the constitutional

51 Already for this reason, the statement of the Member of the German Parliament, Katja Dörner (BÜNDNIS 90/DIE GRÜNEN), that the German Federal Constitutional Court should decide on the issue in question – quoted from www.rp-online.de of 25. 7. 2012 (“Die Beschneidung wird zur Gewissensfrage”) –, shows a remarkable misunderstanding of the competencies of the legislature. It is the most exclusive competence of the legislature to balance adverse interests by law making. To pass this burden to the Constitution Court is an escape from the genuine responsibilty of the parliament. Cf. regarding the competence of the legislature to provide liberty guaranteed by the basic rights, cf. also Peter Badura, Grundrechte als Ordnung für Staat und Gesellschaft, in: Merten/Papier (eds.), op. cit. (fn. 3), § 20 ref. 31 et seq. 52 Fundamentally BVerfGE 7, 198 (205). 53 Cf. Kyrill-A. Schwarz, Recht und Religion, Bayerische Verwaltungsblätter 2014, pp. 677 (681). 54 BVerfGE 33, 23 (30); following Martin Heckel, Festschrift Bundesverfassungsgericht, vol. II, 2001, pp. 379 (411); Konrad Hesse, Das Selbstbestimmungsrecht der Kirchen und Religionsgemeinschaften, in: Joseph Listl/Dietrich Pirson (eds.), Handbuch des Staatskirchenrechts der Bundesrepublik Deutschland I, vol. 2, 1994, pp. 521 (542); Martin Morlok, Selbstverständnis als Rechtskriterium, 1993, pp. 431 et seq.

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state […]”55, obliges the State to apply the respective self-determined rules when it exercises its police powers. All in all, one has to conclude that every attempt by the State to develop criteria for assessing the self-determined expression of religion will result in replacing self-determination as concretised autonomy by heteronomy, and hence will constitute interference with freedom of religion.

55

Peter Häberle, Das Menschenbild im Verfassungsstaat, 1988, p. 66.

Human Dignity and the Right to Due Process* By Mordechai Kremnitzer and Lina Saba-Habesch

I. Human Dignity in Israeli Law and Due Process The Israeli Basic Law: Human Dignity and Liberty (1992)1 could not have been passed without political compromise. The compromise included defining the state as both a Jewish and democratic state, and restricting the number of rights included in the Basic Law. As a result of this political compromise, several basic rights were not included in the Law, such as equality, freedom of speech, freedom of religious and due process rights.2 The Israeli Supreme Court has read human dignity expansively so that elements of the missing rights were deemed to be included in it.3 It was easy to take this route since Human Dignity is a relative right rather than an absolute right in Israel. This development has been described elsewhere.4 For the purposes of this paper, it is sufficient to mention that the court has based certain aspects of due process on the right to Human Dignity.5 * The research leading to this article was conducted under the ‘Proportionality in Public Policy’ research project at the Israel Democracy Institute, and has received funding from the European Research Council under the European Union’s Seventh Framework Programme (FP7 / 2007 – 2013), ERC grant no. 324182. 1 Basic Law: Human Dignity and Liberty, 5752 – 1992, SH No. 1391 p. 150. 2 See Izhak Englard, Human Dignity: From Antiquity to Modern Israel’s Constitutional Framework, 21 Cardozo Law Review (2000), pp. 1903, 1926 – 1927. 3 Equality: see HCJ El-Al Airlines v. Danilovitz, PD 48(5)749(1994); Freedom of Speech: see Prisoner Appeal 4463/94 Golan v. The Israeli Prison Service, PD 50(4)136(1996); Freedom of Conscience and religion: see HCJ 6111/94 Ha-Vaad Le-Shomrei Masoret v. Council of the Chief Rabbinate of Israel, PD 49(5) 94(1995); The right to establish a family: see HCJ 7052/03 Adala v. Minister of interior Affairs, PD 61(2)202(2006); the right to due process: see Criminal Retail 3032/99 Baranes v. The State of Israel, PD 56 (3)354. 4 Mordechai Kremnitzer, Human Dignity – An Israeli Perspective, in: Eric Hilgendorf (ed.), Menschenwürde und Demütigung: Die Menschenwürdekonzeption Avishai Margalits, Schriftenreihe des Zentrums für rechtswissenschaftliche Grundlagenforschung, (2013), pp. 81 – 90. 5 See CrimA 5121/98 Issacharov v Chief Military Prosecutor 2006(1) Isr. L. Rep. 320, para 67; Cr.A. 3032/99, Amos Baranes v. The State of Israel, 54(26) PD 3, 354 at p. 375 Justice Rivlin: see CrimApp 8823/07 Anonymous v. State of Israel (2010) (not yet reported) para. 16.

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The question to be discussed here stems from human dignity, including due process rights, being a relative right in Israeli law. How should due process rights be protected? Is proportionality sufficient? If not, what is the alternative?

II. Balancing as the Solution for Clashes Between the Right to Due Process and Other Public Interests There is an inherent conflict between the rights of the suspect, the accused and the detainee in criminal proceedings, on the one hand, and public interest that the law be enforced, on the other. For instance, from the perspective of law enforcement, the right of the accused to silence, the right of the detainee to meet with his or her lawyer and the presumption of innocence are – to put it mildly – not helpful. 1. How Should Due Process Rights be Protected? We will argue that the core of these rights has to be protected absolutely. We will not provide an exhaustive account of this core but will restrict our discussion to two aspects of it, based on the Israeli experience: the right to be present during proceedings and the right to receive information concerning allegations (hereinafter: “the gist”). These two aspects have a common denominator – they enable the suspect or detainee to defend himself against the accusations or allegations he is charged with. In the next few paragraphs, we will present the factors showing why proportionality provides insufficient protection. Proportionality cannot be relied on due to a number of biases: 1. The first is due to the tendency of citizens, as well as their representatives in the legislature and even judges, to view themselves primarily as potential victims and not as potential criminals, suspects or defendants. The latter group is perceived of as “the others”. The increasing popularity of victim discourse in recent years has intensified this tendency.6 2. The second bias is related to the authorities who are responsible for law enforcement. It can be said that when setting out the rules regarding the enforcement of According to former Justice Barak’s approach, the right of a person to a fair trial is part of his human dignity as a subject, and thus there shouldn’t be an infringement of his human rights without providing him with a due process: see Aharon Barak, Human Dignity as a Constitutional Right), 41 Hapraklit (1994) p. 271, at p. 281 [in Hebrew]. 6 Mordechai Kremnitzer, Constitutionalization of Substantive Criminal Law: A Realistic View, 33 Israel Law Review (1999), pp. 720, 727; CrimApp 537/95 Ganimat v. State of Israel (1995) 49(iv) P.D. 621.

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laws, the authorities act according to their own interests, rather than as an objective, neutral body would act. As a result, they are biased toward law enforcement considerations, preferring for example considerations of administrative convenience and reducing costs over the rights of suspects and defendants. This bias may potentially intensify the inequality inherent in the balance of power between the state and the suspect. This is especially true during the first stage of the investigation, which is often the critical stage, in which the state acts alone and the suspect is not involved as an active “player” at all. 3. The third bias is related to the inherent infringement of the rights of suspects. Since it is inevitable that suspects’ rights will be subject to severe limitations, for example, that they may be arrested and detained in certain circumstances, the impression might be given that their rights are not particularly important and that violating them is not a big deal. Additionally, due process rights are “only” a matter of procedure so they might be construed as inferior in comparison to the substantive issues of uncovering the truth and ensuring public peace and security.

2. Intensified Biases 1. In certain contexts, these biases are intensified: When the allegations relate to especially severe harm to a first class public interest such as state security; when the suspects are typical “others”, i. e. they are foreigners or members of a permanent minority; when the legal procedures are conducted in the midst of an atmosphere of public fear and the authorities label the struggle as a “war”, such as the war against drugs or the war against terror. In these situations, relying on proportionality can be unsound. The following paragraphs will present more on these special contexts. In the Israeli legal system, where the supreme value is human life, the security of the state and its citizens is under a real threat, and the legal ethos is utilitarian, the almost natural inclination is to push aside all other rights and interests in the name of protecting life, even when the risk to life is relatively low and remote. Therefore, in the face of such a powerful “rival”, human dignity must be given special status, perhaps based on a deontological approach, in order that there is a chance for fair competition between the competing interests of dignity and life. At times, even this special status may not suffice; hence, recourse to absolute protection as is the case in torture. It is doubtful whether the Israeli Supreme Court7 could have taken the position it took against the shaking of suspected terrorists in interrogations, were it not for the solid basis of an absolutely binding norm.

7

817.

HCJ 5100/94, Public Committee Against Torture in Israel v. The State of Israel 53(4) P.D.

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2. The “others” – Human dignity needs special protection due to its vulnerability, and specifically because of the fact that not everyone’s dignity is equally vulnerable. Based on historical experience as well as contemporary reality, it is the “others” in society that tend to be the victims of violations of human dignity. “Otherness” is a matter of perception, and sometimes of construction. The “other” may, in reality, be very similar to “us”; indeed, his “otherness” may be entirely imagined. But, be it real or imagined, the perception of otherness affects the regular process of shaping norms. Usually, the universal application of norms has a curbing affect, since the enactment of a law which enables the violation of human dignity can be used against the legislator and his constituency as well. When those who legislate do not see themselves (either correctly or incorrectly) as being affected by the norm they are creating, the regular mechanism of self-restraint does not function. This typically characterizes cases in which the law is designated to be used against “the other”, meaning that it is the human dignity of others that is being violated. In such cases unnecessary or disproportional violations of human dignity are not surprising, and therefore, there is a need for special protection of the right to human dignity. According to the subjective view of the majority, the “others” are different from “us”. In extreme versions the others are sub-humans or non-humans (demons or satanic creatures). This is especially common when feelings of fear and rage (especially in the context of state security) are involved. Typically, these, “others”, entirely lack political power or suffer from chronic political weakness, and are therefore unable to defend themselves in the political arena. The majority, in these circumstances, will demand the most extreme measures against the “others”. Considering these characteristics, it is easy to locate the vulnerable marginalized groups in Western societies, including contemporary Israel: suspected external terrorists, suspected criminals and convicted criminals, permanent minorities which refuse to assimilate, foreign workers and refugees. 3. In a situation where the nature of the risk, when it materializes, has an especially harmful, dramatic effect (such as a terror attack on a plane, bus, café, school or a street teeming with people), the natural tendency is to focus on the severity of the risk and to attribute little weight, if any, to its probability. 4. Moreover, the standpoint of the authorities responsible for security has a significant influence on forming security policy and on the means used for preserving security. This is due to their responsibility, expertise and experience. The problem is that these authorities focus most of their efforts on the vital interest they are responsible for preserving (and according to which their performance is evaluated positively or negatively), so that they view it as a deciding consideration which overrides conflicting considerations. Moreover, every unit in the system is ensnared in the trap of the difference between an error that can be identified and

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attributed to them, and an undetectable error. With respect to the means that were not used or not enforced, it is possible in many cases to argue that had they been used, a harsh result could have been prevented. On the other hand, as a rule, with regard to means that were used unnecessarily, it is usually impossible to point out that they were superfluous. Due to the above factors, concern about unjust or disproportionate harm to due process rights, especially when security is at stake, is serious and real. For this reason due process rights should be granted special protection 3. Additional Considerations Regarding the Need for Special Protection of Due Process The need for special protection for the foundations of due process does not stem exclusively from the need to create a counter-weight to biases which could lead to unjust or disproportionate harm to those foundations. There are additional reasons for this need: a) The historical dimension: Harm to due process was and continues to be a telltale sign of tyrannical regimes, expressing as it does governmental arbitrariness. It follows that great care should be taken to prevent it.8 Against the backdrop of this historical reality, these rights have a prominent and important place and are of special importance in the development of human rights protection. It is important to preserve this status. One should not forget that typical absolute prohibitions in the area of preserving human rights are the ban against torture, first and foremost, in order to extract information or a confession from the victim of torture or a third person, and then the prohibition of cruelty and cruel, inhuman or humiliating punishment. b) The linguistic aspect: Due to their historical development, among other factors, due process rights are not formulated in the general way which characterizes substantive rights but in a more detailed, defined way, just as legal rules are customarily phrased differently than legal principles. Therefore, it should not be taken for granted that it is correct to make use of proportionality rules when implementing these rights as if they were general principles.9 c) The symbolic aspect: In criminal procedure, the individual is facing the state. It is therefore a test of the real relationship between the state and its residents; from it 8 Hung-En Sung, Democracy and Criminal Justice in Cross-National Perspective: From Crime Control to Due process, The Annals of the American Academy of Political and Social Science, Vol. 605, Democracy, Crime, and Justice (2006), pp. 311 – 337. 9 When, unlike other aspects of due process, the rule of public trial and proceedings was formulated, it included a list of exceptions to this general rule. See, Article 14 (1) of the International Covenant on Civil and Political Rights (adopted 16. 12. 1966, entered into force 23. 3. 1976) 999 UNTS 171 (ICCPR).

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one can see the extent to which the state treats its residents with respect and fairness. In order to preserve trust in the state, it is essential for the state not to fail this test. d) The broad significance of harm to these rights: Due process rights are not only intended to secure the status of a person facing the state in a criminal procedure. They are also meant to ensure that no unjust harm should come to substantial basic rights which may be harmed due to the conviction of an innocent person: the right to liberty, the right to property, the right to good reputation. Failure to secure the right to due process is an expression of disregard toward these rights as well. Additionally, it is difficult to describe a worse evil than the one caused by the false conviction of an innocent person, especially when this takes place because the right of due process has been infringed. e) The legitimacy of the criminal procedure and the legal system: Contrary to what is commonly thought, people tend to attribute great importance to procedural justice. The ability to rely on it is vital, possibly even critical, to their willingness to accept the results of the process and the legitimacy of the entire legal system.

III. The Slippery Slope Syndrome Besides of their unsuitability in protecting important due process rights, using balancing tests may cause harm that goes beyond the specific questions at issue. The use of extreme cases as an exception to respecting human rights is a wellknown slippery slope problem. It is easier to accept measures that target the “other”. Citizens feel that their own liberties and rights will be left intact. Nonetheless, history has taught us that what begins with terrorists finds its way, sometimes, back to regular citizens as well. The precedent makes it easier to conceive that these measures will be used against such citizens as well.10 Therefore, anti-terrorism measures may with time flow into other contexts and areas. A good example of this in the abolition of the right to remain silent in the UK: for 400 years England provided suspects in criminal proceedings with the right against self-incrimination. The common law system relied primarily upon independent evidence.11 In the early 1970s this right was reduced in the context of fighting terrorism. The justification for this erosion was the sophistication of the IRA and other para-military groups in their ability to resist 10

David Cole, Enemy aliens, 54 Stanford Law Review 953 – 1004 (2002) at pp. 988, 1003. They preferred extrinsic evidence and witnesses to reliance on confessions. This way they could protect people’s dignity by assuring that they remain free from humiliation and abuse. See Gregory W. O’Reilly, England Limits the Right to Silence and Moves Toward an Inquisitorial System of Justice, 85 Journal of Criminal Law & Criminology 402 (1994 – 1995), pp. 407, 421; Ronald Rychlak, The Right to Remain Silent in Light of the War on Terror, 10 Chapman Law Review 663 (2007), p. 666. 11

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questioning.12 Nonetheless, in 1994 the Westminster Parliament adopted a law that curtailed the right to silence in regular criminal cases.13 For the above reasons, we think that legislators and judges, using solely proportionality, are not capable of protecting suspects’ basic due process rights in times of emergency when security issues are at stake. There are two ways to strengthen the foundations of due process: provide them with complete protection as they are part of the core of human dignity that is absolutely protected or protect the core of the right to due process as an absolute right. This article will focus on the first option without completely neglecting the second.

IV. The Right of the Accused to “Self-Defense” in Criminal Proceedings The list of “candidates” for absolute, or almost absolute, protection that we will present is far from being complete. We will limit our discussion to the rights of “selfdefense” within proceedings that have been discussed in Israeli case law. This is far from a full account of the core of due process rights which are beyond the scope of this paper. The right that we will focus on is the right of the suspect to defend himself and participate in a meaningful way in the adjudication of a criminal prosecution against himself. The participation of the suspect is essential in order to reduce the risk of error. Moreover, it is an end in itself. It means protecting the accused’s dignity by allowing him the opportunity to defend himself and rebut the allegations made against him. As we will demonstrate, the right of a suspect or accused to defend himself is at the heart of the right to due process and is part of the right to human dignity. The minimum required for the suspect to be able to defend himself is to know the essence of the allegations against him and to be present at his hearings. 1. The Ability to Defend Oneself as a Basic Core of Due Process Obviously, when a person who is interested in participating in the criminal proceedings being held in his case (for example, a decision about the extension of his arrest) is excluded from such participation, the basic core of the right of due process is infringed. This core must be absolutely protected. The damage is worsened when his attorney is unable inform him of what took place in the proceedings, even parti12 13

Ryshlak, op. cit. (fn. 11), p. 684. O’Reilly, op. cit. (fn. 11), p. 403.

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ally, either because he was prevented from meeting with the detainee14 or because he did not receive the main evidence (due to its confidential status) for his consideration. This is also the case if we ignore the unique aspects of bringing a security detainee before a judge during his custody: the ability to complain about the conditions of arrest and the duty of the judge to make a decision based on a firsthand impression of the physical and emotional conditions of the detainee. A similar harm to the core right of due process is caused when the detainee is present at the proceeding against him but is not provided with sufficient specific information regarding the crime he is charged with (the “gist”), in a way that would enable him to respond to the charges and attempt to rebut them. In both of these situations, the person is denied the possibility of influencing his fate in law enforcement proceeding. It appears that this possibility is considered a vital, basic condition, according to the social contract theory, which assumes the hypothetical willingness of the members of a society to entrust the authorities, as the representative of the entire society (all of its individuals without exception), with a monopoly with regard to activating political power which is manifested in law enforcement. If real participation in these proceedings was not ensured, rational people would be unwilling to place their fate at the mercy of the law enforcement system. For the purposes of discussion, the person should be presumed innocent. 2. The Inability to Defend Oneself as a Humiliation and Injury to Human Dignity In the following section, we will argue that the limitations described above also harm the basic core of the right to human dignity.15 Anyone who does not know which specific acts led to his arrest, and as a result cannot have knowledge about what is on the table for the purpose of making a decision regarding the extension of his arrest or release, is subjected to forced ignorance regarding everything he needs to know about the proceeding he is going through. If the kind of circumstantial stupidity that is forced upon him could be described in plastic form, it would appear as glazed eyes and a gaping, open mouth. In the absence of sufficient information, his response may be irrelevant, ridiculous, and preposterous. The result is that he is forced to be silent, and to take on the status of a passive extra. In the context of defending himself, his hands are tied and his eyes are bound; he is put in a situation of helplessness and hopelessness. He cannot even cry out bitterly over this situation since such a cry would be considered to be a contempt of the court. The 14 The Criminal Procedure Law (Powers of Enforcement – Arrest), 1996 in article 35 allows postponing a meeting between a security detainee and his lawyer for up to 21 days. 15 The assumption in the article is that with regard to the right to human dignity there is also a basic core area which is absolutely protected, and a peripheral area which is protected only relatively. See Mordechai Kremnitzer/Michal Kramar, Human Dignity as a Supreme and Absolute Constitutional Value in German Law – In Israel Too?, The Israeli Democracy Institute (2011).

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situation of a person who is attacked by the legal system, when it denies him the ability to defend himself, can be likened to the situation of a person being physically attacked, who is denied the ability to defend himself against his assailant; both are severely humiliated. Uninformed presence at the proceeding makes the actual presence of the detainee redundant. Its content is emptied and there is no real possibility to influence it. He is present, but in fact is absent or missing. The utter inability to influence his fate, that is forced upon him, regarding such a vital issue as his freedom, inflicts severe harm to the person’s self-esteem. More than that, it transforms him into an object, a pawn in the process and denies his humanity – his status as a subject. He is perceived of only as a source of danger and the possibility that he should have the ability to deny the charges against him is not even considered. Therefore the detainee won’t perceive the procedure as legitimate. In such a one sided proceeding, which is really a fixed game, the outcome of which is by design, known in advance, can it be said that the detainee is being treated as a human being? In such circumstances, the gap between the power of the detainee and the state is not large, it is infinite. Forcing such proceedings upon a person demonstrates an extreme lack of decency. It is like a game or contest forced upon an “inferior” participant, allowing some participants to bounce a ball while forbidding others to touch it. Forcing a person to participate in such a game or competition is a severe humiliation. It is easier to understand the humiliating character of such proceedings if we imagine similar proceedings outside the legal framework. For example, let us imagine that an army commander behaves in such a way toward his subordinate, or an employer towards his employee, placing a severe measure upon him and threatening that it will continue. When the victim asks – whatever for and why? The commander or employer responds with silence and by ignoring him and decides to continue using the measure. These are typical situations which degrade a person. Does it become less severe and hurtful when it is done under the power of or with the authorization and permission of the state, when it is cloaked with legal and formal legitimacy? We do not pretend to know the answer on an empirical level but on a normative plane, the fact that we are dealing with governmental arbitrariness, we submit makes the injury even worse. When the legal system itself acts with an extreme lack of decency, the feeling of betrayal is especially forceful and the helplessness, due to the lack of ability to complain about the wrong committed, is absolute. Clearly, when this is compounded with an aspect of negative discrimination toward a certain group on an ethnic or national basis, the humiliation becomes even more extreme. In the context of legal proceedings, the forced absence of the detainee from the proceeding makes the deficiency of his uninformed presence even more extreme. The message that comes across from forcing this absence is like an official announcement that the detainee is nothing – not only is he of low value in the proceedings itself, but he does not count at all, he is nothing more than a zero. This is a severe injury to human dignity.

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V. Due Process in International Law Another indication that highlights the importance and vulnerability of due process rights, especially in emergency situations, is the way they are treated in international law. The right to fair trial is a prominent part of international human rights and humanitarian instruments. Its first mention was in the Universal Declaration of Human Rights (1948).16 Since then it has become a prominent issue in human rights discourse.17. The right to fair trial is guaranteed under article 14 of the International Covenant on Civil and Political Rights (ICCPR),18 which provides that: “Everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”19

The fundamental importance of the due process right is illustrated not only by the extensive body of interpretation it has generated, but mainly by proposals to include it in the non-derogable rights provided for in article 4 (2) of the ICCPR. The drafters of the ICCPR and the (European) Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)20 listed as non-derogable, four main rights – the right to life, the right to be free from torture and other degrading treatment or punishment, the right to be free from slavery, and the principle of nonretroactivity in criminal law.21 The list of non-derogable rights in ICCPR and ECHR does not include minimum guarantees for persons under administrative detention and guarantees of due process. In contrast to ICCPR and ECHR, the American Convention on Human Rights (ACHR)22 does list the “right to judicial guarantees essential to the protection of non-derogable rights” as non-derogable. The idea that the list of non-derogable rights in the ICCPR and in the ECHR should be expanded to include the right to fair trial is slowly gaining approval in the international community.23

16

UN General Assembly, Universal Declaration of Human Rights, 10. 12. 1948, 217 A (III), articles 10, 11. 17 Sara Stapelton, Note: Ensuring a Fair Trial in the International Criminal Court: Statutory Interpretation and the Impermissibility of Derogation, 31 New York University Journal of International Law & Politics (1999), p. 535. 18 The International Covenant on Civil and Political Rights (adopted 16. 12. 1966, entered into force 23. 3. 1976) 999 UNTS 171 (ICCPR). 19 A similar article appears in the ECHR (article 6). 20 The Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.XI.1950 (ECHR). 21 The ICCPR includes other rights such as the prohibition against imprisonment for inability to fulfil a contractual obligation (article 11), recognition of everyone as a person before the law (article 16), freedom of thought, conscience and religion (article 18). 22 Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22. 11. 1969 (ACHR). 23 Stapleton, op. cit. (fn. 17), p. 605.

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In 1984 the 61st Congress of the International Law Association (ILA) approved a set minimum standards governing the declaration of states of emergency. These standards, designated as the Paris Minimum Standards of Human Rights Norms in a State of Emergency,24 contain an approved list of sixteen non-derogable rights that include part of the right to fair trial.25 In 1985 the Siracusa Principles on the Limitation and Derogation Provision in the International Covenant on Civil and Political Rights (hereinafter Siracusa Principles) were published.26 These principles also contained the procedural rights necessary for fair trial and also suggested making them non-derogable. The principles also restricted this suggestion to fair trial rights that are fundamental to human dignity. Article 70 of the Siracusa Principles states: “Although protections against arbitrary arrest and detention (Art. 9) And the right to a fair and public hearing in the determination of a criminal charge (Art. 14) may be subject to legitimate limitations if strictly required by the exigencies of an emergency situation, the denial of certain rights fundamental to human dignity can never be strictly necessary in any conceivable emergency. Respect for these fundamental rights is essential in order to ensure enjoyment of non-derogable rights and to provide an effective remedy against their violation. In particular: […] (e) Any person charged with an offense shall be entitled to a fair trial by a competent, independent and impartial court established by law; […] (g) any person charged with a criminal offense shall be entitled to the presumption of innocence and to at least the following rights to ensure a fair trial: the right to be informed of charges promptly, in detail and in a language he understands, the right to have adequate time and facilities to prepare the defense including the right to communicate confidentially with his lawyer, the right to a lawyer of his choice, with free legal assistance if he does not have the means to pay for it, the right to be present at the trial, the right not to be compelled to testify against himself or to make a confession, the right to obtain the attendance and examination of defense witnesses, the right to be tried in public save where the court orders otherwise on grounds of security with adequate safety to prevent abuse, the right to appeal to a higher court; […] (i) no person shall be tried or punished again for an offense for which he has already been convicted or acquitted.” 24 Paris Minimum Standards of Human Rights Norms in a State of Emergency (‘Paris Minimum Standards’), reproduced as ‘The Paris Minimum Standards of Human Rights Norms in a State of Emergency’ (1985), 79 American Journal of International Law 1072. These standards were the result of a six years study by a subcommittee and an additional 2 years of revision by the committee of the enforcement of human rights law. 25 Stapleton, op. cit. (fn. 17), pp. 605 – 606. 26 United Nations, Economic and Social Council, Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, U.N. Doc. E/CN.4/1985/4, Annex (1985).

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The Siracusa Principles originated in a working paper prepared by Joan Hartman. In his paper he explained that Principle 70 developed the notion that a minimum floor of due process protections exists, despite the fact that article 9 (arbitrary arrest) and article 14 (fair trial) of the ICCPR are derogable. Principle 70, he added, “identifies those procedural protections which are so fundamental to human dignity, so essential to prevent the violation of non-derogable rights and so practicable under an conceivable emergency condition that their suspension can never be strictly required by the exigencies of the situation”.27 He also stated that “[i]n light of the information which emerged concerning the most serious abuses of human rights during states of emergency, efforts to prescribe a bare minimum of criminal process are justified as a practical matter and can be grounded in the covenant’s requirement that the suspension of rights be strictly required by the exigencies of the situation“.28 In 2001, General Comment 29 (hereinafter: “GC”) was adopted.29 One of the main innovations of this comment is its statement according to which every provision has a non-derogable core.30 As for the right to fair trial – the GC asserts that parts of the right – “fundamental requirement of fair trial” should not be derogated from even in times of emergency. While part of the international law discourse is narrow and relates to specific due process rights that should be considered non-derogable because they protect substantive non-derogable rights, another part of the discourse (such as Siracusa Principles and General Comment 29), is broader, and considers underogable also some elements of the right to fair trial that are considered: “fundamental principles” (General Comment 29), and those that are fundamental to human dignity (Siracusa Principles). In the next two sections we will elaborate on each one of these rights from an Israeli perspective.

VI. The Right of the Suspect to Know the Allegations Against Him As mentioned, due process requires, as a minimum, that the suspect be aware of the details of the accusation against him. The ‘gist’ requirement, despite its crucial importance for due process, does not exist as a mandatory requirement in the Israeli

27 Joan F. Hartman, Working Paper for the Committee of Experts on the Article 4 Derogation Provision, 7 (1) Human Rights Quarterly (1985), pp. 89, 119. 28 Hartman, op. cit. (fn. 27), p. 122. 29 Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N. Doc. CCPR/C/21/Rev.1/Add.11 (2001). 30 Julian M. Lehmann, Limits to Counter-Terrorism: Comparing Derogation from the International Covenant on Civil and Political Rights and the European Convention on Human Rights, 8(1) Essex Human Rights Review (2011), pp. 107, 115.

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system of administrative detention.31 In other words, the administrative detention system in Israel doesn’t oblige the authorities to inform the suspect of the accusation(s) against him. Former Chief Justice Barak emphasized this in Anonymous v. Ministry of Defence, a Lebanese case: “[…] The harm of administrative detention to the liberty of the individual and their dignity is particularly harsh. The individual is detained without a trial, by authority of the order issued by the executive branch (Minister of Defence). The detention may go on – as the case before us shows – for a long period that is not limited in advance. Not once, the detainee does not know – for reasons of national security – what the factual basis is for the decision as to his detention. His ability to defend himself against the administrative detention is limited […].”32

In contrast, the European Court of Human Rights confirmed in A. v. United Kingdom that even within the context of national security, the gist remains an irreplaceable measure of protection.33 “Against this background, it was essential that as much information about the allegations and evidence against each applicant was disclosed as was possible without compromising national security or the safety of others. Where full disclosure was not possible, Article 5 § 4 required that the difficulties this caused were counterbalanced in such a way that each applicant still had the possibility effectively to challenge the allegations against him”.34

As for the introduction of a special advocate as a sufficient safeguard against the lack of disclosure, the European Court of Human Rights clarified the vitality of providing sufficient information to the suspect: “The Court further considers that the special advocate could perform an important role in counterbalancing the lack of full disclosure and the lack of a full, open, adversarial hearing by testing the evidence and putting arguments on behalf of the detainee during the closed hearings. However, the special advocate could not perform this function in any useful way unless the detainee was provided with sufficient information about the allegations against him to enable him to give effective instructions to the special advocate.”35

The European Court of Justice also examined the “gist” requirement recently in ZZ v. Secretary of State for the Home Department, ruling that in order to effectively maintain the fair trial right of a citizen of the European Union, he should be given at least the essence of the allegations against him: 31 ADA 2595/09, Sofi v. State of Israel (2009) (unpublished); Daphne Barak-Erez/Matthew C. Waxman, Secret Evidence and the Due Process of Terrorists Detentions, 48 (3) Colombia Journal of Transnational Law (2009), p. 38. 32 See ADA 7/94 Ben Yosef v. State of Israel [14]; ADA 2/96 State of Israel v. Freedman [15]; CrimFH 7048/97, Anonymous v. Ministry of defence, IsrSC 54(1)721 (12. 4. 2000), para. 18. 33 A. and others v. United Kingdom ECHR (2009), application 3455/05. 34 Ibid., para. 218. 35 Ibid., para. 220.

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“In the light of the foregoing considerations, the answer to the question referred is that Articles 30 (2) and 31 of Directive 2004/38, read in the light of Article 47 of the Charter, must be interpreted as requiring the national court with jurisdiction to ensure that failure by the competent national authority to disclose to the person concerned, precisely and in full, the grounds on which a decision taken under Article 27 of that directive is based and to disclose the related evidence to him is limited to that which is strictly necessary, and that he is informed, in any event, of the essence of those grounds in a manner which takes due account of the necessary confidentiality of the evidence.”36

1. Administrative Detention in Israel Administrative detention is detention imposed by the executive to prevent a danger to state security or public safety, typically in a state of emergency. The detention is described as primarily concerned with the future and not the past and supposedly serves an exclusively preventive purpose. Hence, administrative detention, according to this line of argument, is irrelevant for our discussion, but this is not the case in reality. In order to detain someone on the grounds of his dangerousness, it must be proved that he or she is likely to commit a crime in the future. This requires an inference from past conduct to future behavior.37 In other words, administrative detention is based on the detainee’s criminal behavior in the past, and the real reason for the use of administrative detention is the difficulty in obtaining a criminal conviction due to evidentiary problems. If there were admissible evidence and non-confidential evidence against such a detainee, he or she would almost certainly be charged with an offence. As a result, administrative detention is in fact used to bypass the criminal law and procedural guarantees. Therefore, the principle of respecting the suspect’s right to know the allegations against him should also apply here, even a fortiori. The problem with the administrative detention system, which is the reason for its creation in the first place, is that it relies mostly on secret evidence that cannot be divulged to the detainee and his lawyer.38 As such, it is a problematic measure with a high risk of error. Therefore, if it is to be permitted, far greater attention must be paid to procedural safeguards. The threshold condition necessary to minimize the imbalance caused by the use of secret evidence in administrative detention is providing the detainee with the “gist”. Without the “gist”, the detainee will formally “participate” in a process determining his fate, without being able to materially participate in it – a kind of Kafkaesque situation. 36

ZZ v. Secretary of State for the Home Department EUECJ C-300/11 (4. 6. 2013), para. 69. More about the problematic nature of administrative detention see: Mordechai Kremnitzer, Administrative Detention – An Opportunity for re-evaluation, in: Elad Gil (Supervised by Kremnitzer), A Re-examination of Administrative Detention in Jewish and Democratic State, IDI Policy Paper 7E (2011), pp. 254, 255. 38 95 % of the court’s decisions from 2000 – 2010 were based on secret evidence and ex parte proceedings: Shiri Krebs, The Secret Keepers: Judges, Security Detentions and Secret Evidence, in Liora Lazarus and others (eds.), Reasoning rights: Comparative Judicial Engagement, (2014). 37

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International Human Rights Law (IHRL) acknowledges the problematic nature of administrative detention and the importance of the procedural guarantees for a fair trial. Thus, it is permitted, provided that it is not arbitrary or discriminatory, and that it is based on grounds and procedures previously established by law that meet minimum procedural requirements.39 The Human Rights Committee in General Comment 8 on administrative detention, stated in article 940 that: “[…] if so called preventive detention is used, for reasons of public security…it must not be arbitrary, and must be based on grounds and procedures established by law.[…] Information of the reason must be given […] and court control of the detention must be available […] as well as compensation in the case of a breach […].”41

In other words, the gist requirement that appears in article 9 (2) of the ICCPR according to which “anyone who is arrested shall be informed, at the time of the arrest, of the reasons for his arrest” (my emphasis) applies also to administrative detentions.42 2. Models for Dealing with Secret Evidence and Their Effect on the “Gist” Different systems have adopted different models to deal with the problem of secret evidence. The Israeli system, when dealing with administrative detentions, has developed a unique activist approach in examining non-disclosed evidence. According to this practice, the court suggests to the detainee that the court will review the evidence ex-parte behind closed doors. If the detainee agrees, and he usually does, the court examines the confidential evidence in a non-adversarial hearing.43 It seems that over-confidence in the review by judges of secret material has made the courts insen-

39 Douglass Cassel, Pretrial and Preventive Detention of Suspected Terrorists: Options and Constraints under International Law, 98(3), Journal of Criminal Law and Criminology (2008), p. 850. 40 General Comment No. 08: Right to liberty and security of persons (Art. 9): 06/30/1982. CCPR General Comment No. 8. (General Comments). 41 Cassel, op. cit. (fn. 39), pp. 832 – 834; General Comment No. 8, para. 4. 42 The US court adopted this approach and in Hamdi v. Rumsfeld, the US Supreme Court upheld the detention of a U.S. citizen allegedly captured on the battlefield carrying arms and fighting for the Taliban during the military conflict in Afghanistan. It ruled that detention for the purpose of preventing a fighter from returning to battle during a military conflict was supported by a long tradition under the laws of war, and was therefore authorized as a “fundamental incident” to Congress’ Authorization for Use of Military Force (AUMF). But it held that the government had failed to afford Hamdi adequate procedural protections. Due process required the government to provide Hamdi notice of the factual basis for his detention and a meaningful opportunity to contest the government’s allegations before an independent adjudicator. Thus, even in wartime, an individualized showing of need, established in a fundamentally fair proceeding, is required if preventive detention is to satisfy due process. 43 Barak-Erez/Waxman, op. cit. (fn. 31), p. 22.

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sitive to the ‘gist’ requirement, as reflected in the previously mentioned view of former Chief Justice Beinisch.44 Other countries, such as the UK and Canada, implement the “special advocate” model.45 The special advocate is a lawyer with security clearance who represents the detainee and can be granted access to the secret evidence but is obliged not to reveal the secret evidence to anyone else, including the detainee. The special advocate communicates with the suspect before seeing the evidence, but is generally banned from seeing him after examining the secret evidence.46 The “gist” requirement in the special advocate system is extremely important because it can mitigate the hardships caused by the lack of communication between the detainee and the special advocate after the special advocate has seen the evidence. When the detainee is provided with the gist he will know the accusations against him. Similarly he will sometimes be able to guess what information the authorities have on him and he can instruct his lawyer on how to oppose such evidence. A special advocate system is more likely to require the disclosure of the “gist” because, otherwise, the special attorney system would become ineffective. In an activist court system, as exists in Israel, such a need will be less perceptible. Judges rely on their own examination of the evidence and believe that any lack of information can be remedied by later judicial review.47 This attitude may betray overconfidence in their ability and insensitivity to the detainee’s procedural rights and status. As a result, a vicious circle is created. The judge becomes less vigilant toward fundamental flaws in the procedure, and toward violations of the detainee’s basic rights. Denying the suspect the gist carries with it the risk of not respecting other procedural rights in the slippery slope manner discussed above. It’s easier for a system that allows a suspect to be denied the gist to then also deny him the right to be present at his own hearing. When a suspect doesn’t know the allegations against him and can’t in fact defend himself – his appearance in court is ineffective. And in fact, as we will elaborate in the next section, Israel did slide down this slippery slope. The state may face the dilemma of choosing between sacrificing “some” security to enable the detention or maintain secrecy, and abandon the detention while providing security through surveillance. The dilemma is a harsh one but detention proceedings that do not entail the “gist” requirement cannot be deemed as fair (even minimally fair), and therefore violate the human dignity of the detainee. A balancing of rights cannot succeed in protecting this important right. The only way to effectively do so is by considering it absolute.

44

Beinisch in A, para. 43. See John Ip, The Rise and Spread of the Special Advocate, Public Law (2008), p. 717; Martin Chamberlain, Update on Procedure Fairness in Closed Proceedings, 28 Civil Justice Quarterly (2009), p. 448. 46 Barak-Erez/Waxman, op. cit. (fn. 31), pp. 27 – 31. 47 Barak-Erez/Waxman, op. cit. (fn. 31), p. 35. 45

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VII. The Suspect’s Presence at Hearings The right of the suspect to be present at hearings on his case is another important aspect of the right of the suspect to defend himself, and, as discussed earlier, is at the core of his due process rights and thus his human dignity. The European Court for Human Rights considers the presence of the suspect at hearings an essential condition to secure his right to fair procedure. The court ruled on several occasions that proceedings on whether detention may be extended must be adversarial and must always ensure “equality of arms” between the parties, i. e. between the prosecutor and the detainee. Everyone who is a party to proceedings must have a reasonable opportunity of presenting his case to the court under conditions which do not place him at a substantial disadvantage vis-a-vis his opponent. A fair balance must be struck between the parties.48 1. Detainee Presence in Court in Israel Before the passage of the 2006 Criminal Procedure Law, the basic rule concerning criminal detention for all offences was that the suspect was entitled to be present at each detention extension hearing or appeal hearing. The only exception was when it was impossible to bring the suspect to court because of the state of his health. His attorney, however, had to be present. The 2006 act49 changed the situation concerning security offences suspects, where the legislature, in article 5 of the act, made an extension of the detention without the suspect’s presence possible, if the court was convinced that an interruption of the investigation in order to bring the suspect to court might prevent the saving of human life or hinder the prevention of a security offence from occurring. Furthermore, article 5 enabled the court to hold an appeal hearing, concerning the detention, without the suspect’s presence. This is easier to do since the condition which needs to be fulfilled is for the court to be convinced that an interruption of the suspect’s investigation might severely affect the investigation. In both situations, when the suspect does not attend his own hearings, defense counsel should be present. However, it is important to note that in security offences, the defendant’s meeting with his lawyer can be delayed for up to 21 days.50 In cases where a lawyer did not meet his client prior to a hearing, the counsel’s presence in the appeal may be ineffective. In addition, article 5 contained an option not to inform the suspect of the detention decision that was made in his absence at the request of the state, if such information would impair the investigation. 48 De Haes and Gijsels v. Belgium (7/1996/626/809) 24. 2. 1997, para. 53; Ankerl v. Switzerland judgment of 23. 10. 1996, Reports of Judgments and Decisions 1996-V, pp. 1565 – 1566, para. 38. 49 Criminal Procedure Law (Detainee Suspected of Security Offense) (temporary Order), (2006). 50 Criminal Procedure Law (Powers of Enforcement – Arrest), (1996). Article 35.

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Article 5 was heavily criticized and in February 2010, the Supreme Court struck it down as disproportionate and thus not complying with the limitation clause. The nine Supreme Court judges agreed that the provision was unconstitutional and violated due process requirements. The Court found that depriving a person of the opportunity to present his case in judicial proceedings which would ultimately determine his fate, violates not only his due process but also infringes upon his human dignity, turning him from a subject to a mere object.51 This is the reason why the fate of K. in Kafka’s Der Prozess (The Trial) who was accused without his charges being stated, is so disturbing. Justice Jubran wrote: “unlike the Kafkasque legal world, it is unimaginable in the modern liberal world of law that a person would be tried for his actions without being given the opportunity to be present at the time that this guilt is being determined, and this is not disputed in the case before us either.”52

When a person is deprived of the possibility of defending himself against his accusers, it is not only the right to due process that is being violated. The sense of utmost helplessness and humiliation thrust upon the detainee expresses a violation of his human dignity. In the words of Deputy Chief Justice Rivlin: “The right to due process is closely tied to the right to dignity, since an infringement on the right to due process may damage the defendant’s self-esteem and create in him feelings of humiliation and helplessness as though he was merely a pawn in the hands of others […] the defendant’s right to be present at his own trial is a core element of the right to due process, and therefore is a constitutional right protected by basic law.”53

After examining the compatibility of article 5 with the terms of the Basic Law’s limitation clause, Justice Rivlin found that the provision did not meet the second and third tests of proportionality (the least injurious means and strict proportionality) and hence had to be annulled.54 The absence of the detainee from the hearing raises serious concerns as to his ability to defend himself against his detention. It also compromises the detainee’s ability to approach the Court with regard to the way he is being treated while in detention. This concern is intensified when dealing with a suspect charged with security offences, whose ability to defend himself during detention proceedings is significantly limited as a result of other measures being applied against him, such as being prevented from meeting his or her lawyer. The combination of these measures might cause the proceedings to be equivalent de facto to ex-parte proceedings, consequently preventing the Court from conducting an effective and fair review of the case.

51

CrimReq 8823/07 Anonymous v. The State of Israel. Ibid. 53 Ibid., paras. 16 – 17. 54 Ibid., para. 35. 52

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This example illustrates how the legislature in the 2006 act surrendered to the pressure of an emergency situation (actually after the acute emergency had passed), and struck a disproportionate balance between the due process rights of the suspect and security. In subsequent judicial review proceedings, the Supreme Court found the article disproportionate and the majority of the court decided to annul it. One may argue that this decision proves that proportionality tests do work. Nonetheless, the decision of the minority judge and what followed proves that the balancing discourse was not sufficient to protect this important right, and the only way to protect it is by considering it absolute. In her dissenting opinion, Justice Naor agreed that article 5 was unconstitutional, since its infringement of the detainees due process rights was disproportionate to the social interest it protects. However, unlike Justice Rivlin and the other justices, Justice Naor thought that the article should not be immediately annulled. Instead the Court should allow the Knesset a period of six months to amend the Order and increase the restrictions on its application. According to Justice Naor, the state should be allowed to resort to the order in the rare cases of an unequivocal need to conduct detention proceedings in absentia in order to prevent risking lives (such as a “ticking bomb” situation) but only for shorter periods: “In short, according to my view, in rare cases, the right to due process must retreat for a short time in the face of the need to prevent – at the level of near certainty – harm to human life”.55

In her decision, Justice Naor suggested that the state, in contrast to the majority’s opinion, should amend the act, using the ticking bomb scenario to justify the infringement of this important right. After Justice Naor wrote her dissent, the Ministry of Justice published a revised bill which permitted holding hearings without the suspect’s presence, but added some restrictions. The revised bill was enacted and the new temporary order is valid until December 2016. This new law did not reflect the decision of the majority of the judges. Under the new act, in order to hold hearings without the suspect’s presence – a stricter mechanism of approvals was established and the higher probability formula suggested by Justice Naor was adopted: the hearing could be conducted without the attendance of the detainee only if the interruption of the investigation for the purpose of bringing the detainee to the hearing would almost certainly hinder the state in the prevention of harm to human life. However, these changes could not overcome the unconstitutionality that brought the Supreme Court to annul article 5. As we illustrated above, the majority of the judges annulled the provision because it violated the right of the suspect to due process which derives from his right to freedom and dignity. They suggested that the state find new ways to streamline the investigation without excluding the suspect from the hearings. One option would be holding hearings in the detention facility or by using video conferencing. Moreover, the difference between the two probability formulas was only a slight difference on paper. These 55

Ibid., para. 1 to Justice Naor judgment.

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tests provided broad discretion to the judges and their guiding value is very limited.56 There are examples, such as Korematsu v. United States57 and Roes v. Minister of Defence, a Lebanese bargaining chips case58, which illustrate that even a very demanding probability test – near to certain probability – was not sufficient to serve as an effective barrier for safeguarding rights, especially when security was at stake. It is difficult to rely on judges, even liberal ones, to reach a proportionate result, solely by using proportionality tests and weighing interests.59 The new act also continues to allow the state not to inform the suspect about the decision that was given in his absence. Misleading the suspect as to the legal basis of his continued detention aggravates the humiliation of the suspect. In April of the same year, the Justice Minister published an anti-terror act memorandum with the goal of consolidating all anti-terror related provisions, including detentions, into one law.60 In September 2015, the bill passed the first reading in the Knesset, and in June 2016 it was approved by the Knesset. Regarding detention, it proposed that the above innovations be adopted on a permanent basis with few modifications, including a provision allowing hearings to be held without the suspect’s presence, although such a provision had already been annulled by the Court. 2. The Ticking Bomb Scenario The revised version of the 2006 act, in accordance with Justice Naor’s recommendations, uses the ticking bomb exception to establish a legal framework. This move is problematic. The role of the law is to establish rules for normal situations that are part of everyday reality. The law is over-burdened when it endeavors to regulate extreme exceptions. In our submission, the best way to deal with exceptional and rare situations, if they happen, is by applying to them exceptions from criminal liability, especially excuse. Otherwise, this can open the door to sliding down a slippery slope. For example, allowing torture in ticking bomb situations will be interpreted as a precedent for torture in non-ticking bomb situations: “To think that there may be rare alcoholics who drink moderately is to fail to understand alcoholism. Similarly, history does not present us with government that used torture selectively and judiciously”.61

56

Kremnitzer/Kramer, op. cit. (fn. 15), pp. 136 – 137. Korematsu v. United States, 323 u.s. 214, 65 S. Ct. 193, 89 L.Ed. 194, 1944 U.S. 1341. 58 Ad A.A. 10/94 Roes v. Minister of Def. 53(1) P.D. 97. 59 Kremnitzer/Kramer, op. cit. (fn. 15), p. 137. 60 www.justice.gov.il/NR/rdonlyres/07EFFC60-A89F-4F23-A348-926E947FAE45/0/Tazkir Teror.pdf. 61 Henry Shue, Torture in Dreamland: Disposing of the Ticking Bomb, 37 Case Western Reserve Journal of International Law (2006), pp. 231, 234. 57

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The gap between the Landau Commission’s proposals and what happened in reality in the investigation rooms, is a good example for sliding down the slippery slope. The Landau Commission62 considered that the use of torture in a “ticking bomb situation” may be legitimate. It then allowed the usage of “moderate physical pressure”, without limiting it to cases of “immediate” threat. In practice, the investigators went even further and torture was used even beyond the guidelines of the commission. This situation continued until the Supreme Court banned torture in 1999.63 Ticking bomb scenarios are extremely tempting but at the same time misleading. As Henry Shue put it: “Idealization is the addition of positive features to an example in order to make the example better than reality, which lacks those features. Abstraction is the deletion of negative features of reality from an example in order to make the example still better than reality. Idealization ads sparkle, abstraction removes dirt. Together they make the hypothetical superior to reality and thereby a disastrously misleading analogy from which to derive conclusions about reality.”64

These scenarios are fantasy, and will probably never occur in reality. There are a lot of assumptions in this scenario – it assumes that we know with certainty that the detainee planted a bomb, that he knows its location and that torture, rather than bringing him in front of the judge, will lead him to yield the information and that the information will lead us in a timely manner to the bomb. It is impossible to know all these things with certainty or with near certainty.65 Moreover, and as we discussed above, when the legislature thinks about a ticking bomb, they usually imagine one of themselves as “us” in the role of the victim and one of the “others” in the role of the terrorist. Such a perception does not allow for proper balancing. Therefore, rare unrealistic situations should not be regulated; they should remain what they are: exceptions to the rule.

62 Report of the Commission of Inquiry into the Methods of Investigation of the General Security Service regarding Hostile Terrorist Activity (the Landau Commission) – Published Part. 63 HCJ 5100/94, Public Committee Against Torture in Israel v. The State of Israel 53(4) P.D. 817. 64 Shue, op. cit., p. 231. 65 Jamie Mayerfeld, In Defense of The Absolute Prohibition of Torture, 22 (2) Public Affairs Quarterly (2008), pp. 109, 114. The author quoted Kim Scheppele who concluded as follows: “Envisions that we will have certain, or near certain, knowledge of virtually everything about an imminent and momentous threat, except for a few tiny but crucial pieces of information. And it further imagines that the person we could choose to torture knows the crucial details that we do not (in this case, where the bomb is located and how to defuse it). In any real situation, however, it is highly unlikely that any interrogator would know enough to be justified in torturing someone to get the missing information. An interrogator in the ‘war on terrorism’ is far more likely to have vague and general information, making it tempting to torture in an effort to learn whether there is a real threat in the first place”.

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To summarize this section, the suspect’s right to be present at hearings is at the core of the due process rights as part as of his right to defend himself. This core should gain absolute protection.

VIII. Conclusion When dealing with the core of due process rights, the balancing discourse has proved to be insufficient. Emergency situations affect the judgment of legislators and judges. We submit that the regular mechanism of proportionality is too weak to protect this core. Denying the suspect the right to be present in court is equivalent to denying his relevance to the proceedings, even his existence. He is treated as if he doesn’t count. As for the suspect’s right to know the core of the allegation against him, denying him this knowledge, transforms the procedure into one sided proceedings, and transforms the suspect into an object. A suspect who doesn’t know the allegations against him is helpless. This helplessness, which is imposed by the legal system, is degrading. In both instances, the suspect is not treated as a full human being. This is an intolerable violation of human dignity at its inviolable core. Alternatively, even if these rights are not part of human dignity, they are at the core of the right of due process and thus deserve special protection, namely, they should be considered absolute rights. As we demonstrated above, the Israeli legal system has been unable to protect these rights from disproportionate violation, using solely the balancing of rights. Were these rights considered absolute, the result could have been different.

Human Dignity, Human Rights and Criminal Procedure – The German Perspective By Frank Peter Schuster

I. Introduction Criminal Procedure is the “seismograph” of a state’s constitution; this is how Claus Roxin, one of the most influential scholars of German criminal law, described the relationship between procedural law and human rights law.1 Due to the importance of investigating and prosecuting crimes, it is generally accepted that the judiciary can restrict various liberties of the people. The most important example is the guarantee of personal freedom, Art. 2 (2) (2) of the German Federal Constitution (Grundgesetz, the literal translation of which is “Basic Law”), which came into force on 23 May 1949.2 Arrest is the most serious restriction on liberty that the state can undertake in criminal proceedings.3 One might also consider restrictions on the guarantee of physical integrity, Art. 2 (2) (1) GG, when, for example, a suspect is forced to submit to the withdrawal of a blood sample.4 The general freedom to act as one pleases is also guaranteed by Art. 2 (1) GG. On this point, a witness may also feel “harassed” by the state when the public prosecutor forces him to appear and testify,5 perhaps against a good friend or his employer. With respect to the interception of postal correspondence, telephone conversation or e-mails,6 the right of privacy of correspondence, mail and telecommunications (Art. 10 GG) must be considered. In case of searches and seizures,7 one has to reflect upon the general inviolability of the home and property (Art. 13, 14 GG). 1 Claus Roxin/Bernd Schünemann, Strafverfahrensrecht, 28th ed. (2014), § 2, marginal no. 1 et seq. 2 Translations of the German Federal Constitution, called the “Basic Law” (Grundgesetz – GG), the German Code of Criminal Procedure (Strafprozessordnung – StPO) and the German Criminal Code (Strafgesetzbuch – StGB) may be found at: http://www.gesetze-im-internet.de/ Teilliste_translations.html. 3 Cf. §§ 112 et seq. StPO. 4 Cf. § 81a StPO. 5 Cf. § 70 StPO, which allows coercive fines and coercive detention. 6 Cf. §§ 100, 100a, 100b StPO. 7 Cf. §§ 94 et seq., §§ 102 et seq. StPO.

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II. Mechanisms for Human Rights Protection in Criminal Procedure 1. National Level Fundamental rights in Germany are enumerated in Art. 1 – 19 GG. The guarantee of human dignity in Art. 1 (1) GG plays an important role in all types of criminal investigations; in this regard, in contrast to Israel, German constitutional law proclaims to grant absolute protection.8 The individual freedoms contained in Art. 2 – 19 GG, however, are not absolute. Interferences must be proportionate and require an explicit statutory authorisation (Ermächtigungsgrundlage). The measures mentioned supra are authorised by the Code of Criminal Procedure (Strafprozessordnung, abbreviated StPO). The StPO came into force on 1 October 1879,9 eight years after the unification of the German Empire in 1871, so it is much older than the GG. The StPO is still applicable today, but of course it has been amended many times in the last 135 years in reaction to changes in society, technology and forensic science. Nevertheless, for example, until 2017 there was no legal basis in the StPO for online computer surveillance under German criminal procedure law. In retrospective criminal proceedings, you could seize and search a computer, including searches of separate physical storage media, if there was a concern that the data sought would otherwise be lost (§ 110 (3) StPO). Surreptitiously hacking of a computer by the state to read the data stored on the hard drive, however, was illegal, even in a case of a murder, due to lack of legal authorisation. In August 2017, however, the German Parliament passed a new § 100b StPO, allowing the use of state trojans to help secure convictions for a special catalogue of serious crimes.10 The use of this new measure generally requires a court order. Beside general basic rights, the German Constitution also contains special nonrestrictable judicial rights: Art. 101 (1) GG prohibits extraordinary courts and guarantees everyone “his lawful judge”. Art. 102 GG abolished capital punishment. Art. 103 (1) GG guarantees a fair hearing, and Art. 103 (2) GG contains the German principle nulla poena sine lege, i. e. the right not to be punished for conduct, which was not criminalised at the time of the action. Art. 103 (3) GG offers protection against double jeopardy. Art. 104 (1) GG provides that restrictions of liberty have to be based on formal law and the decision of a judge. 8 Thomas Weigend/Khalid Ghanayim, Human Dignity in Criminal Procedure: A Comparative Overview of Israeli and German Law, 44 Israel Law Review (2011), pp. 199, 200. 9 For a brief historical introduction see Antje Pedain, German Criminal Procedure, pp. 1 et seq., on the internet at: http://www.law.cam.ac.uk/faculty-resources/download/german-crimi nal-procedure/6368/pdf. 10 See Bundesgesetzblatt (Federal Law Gazette) 2017 I, 3202. Furthermore, we already had options to conduct such searches unter court order to avert serious crimes or other dangers in future. An example is § 20k Federal Criminal Police Act (Gesetz über das Bundeskriminalamt – abbreviated BKAG).

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The task of making criminal procedure fully compatible with constitutional guarantees, together with desire to regulate criminal procedure more efficiently, may be seen as the most important drivers of modernisation subsequent to the founding of the Federal Republic of Germany in 1949.11 The Weimar Constitution (1919), which was never formally suspended in its entirety (not even between 1933 and1945), also provided an extensive catalogue of fundamental rights, but did not recognize them as judicially enforceable norms. Since 1949, in contrast, the basic rights contained in the Constitution must be guaranteed in every individual case under Art. 1 (3) GG, even when applying pre-constitutional provisions. This stands in contrast to Israel, where Art. 10 of the Basic Law on Human Dignity and Liberty of 1992 (9N9L =;9 A748 795? :79E= K9;) provides that the basic rights it contains shall not affect the validity of any law in force prior to its commencement. The necessary balance between the duty of the state to protect the citizens and the interests of the accused, who enjoys the protections contained in the German Constitution (GG), has been affirmed by successive decisions of the Federal Supreme Court (Bundesgerichtshof – BGH) and by the Federal Constitutional Court (Bundesverfassungsgericht – BVerfG)12, both located in Karlsruhe. The judgements are mainly the result of individual appeals filed by defendants. 2. Supranational Level a) The European Convention on Human Rights Furthermore, since 1953 (West-)Germany has been a member of the European Convention on Human Rights (ECHR), an international treaty which now has forty-seven member states. It is an institution of the Council of Europe, which is based in Strasbourg. Looking at its provisions, Art. 3 ECHR prohibits torture and inhuman or degrading treatment or punishment. Art. 6 ECHR provides a detailed right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within a reasonable time (para. 1), the presumption of innocence (para. 2) and other minimum rights for those charged with criminal offences (para. 3). The same guarantees may be found in Art. 14 of the International Covenant on Civil and Political Rights (ICCPR), to which Israel and Germany are members. In Germany both conventions have the same status of ordinary statute law and they are directly applicable before German courts. As a Member State of the ECHR, however, the Federal Republic is also obliged to follow the judgements of the European Court on Human Rights (ECtHR) in Strasbourg.13 In my opinion there has been a 11

Pedain, op. cit. (fn. 9), p. 4. Barbara Huber, Criminal Procedure in Germany, in: Richard Vogler/Barbara Huber, Criminal Procedure in Europe (2008), pp. 269 (294 et seq.). 13 Germany also signed the First Optional Protocol to the ICCPR, but made a reservation stipulating that competence of the HR Committee would not apply to disputes which had 12

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growing influence from Strasbourg on German procedural practice in recent years. The majority of convention violations that the ECtHR has found in individual complaints against Germany, however, does not seem very spectacular: in fifty-five years, from 1959 to 2014, the court has found against Germany in 176 cases. Only three of those cases concerned the prohibition of torture and other kinds of maltreatment (Art. 3 ECHR)14 and nineteen involved the right to a fair trial (Art. 6 ECHR).15 Most of them, 102 cases dealt with excessive delays in violation of the “reasonable time” requirement in civil and criminal proceedings.16 b) Charter of Fundamental Rights of the European Union Furthermore, the influence of the European Union (EU) with its twenty-eight member states, has become much stronger since the coming into force of the Treaty of Lisbon in 2009. aa) Judicial co-operation in criminal matters has become one of the most important aims of EU-policy (see Art. 82 et seq. Treaty on the Functioning of the European Union – TFEU). Several enactments are of great significance for human rights and the procedural law of the Member States, for example the European Arrest Warrant. The principle of mutual recognition of decisions in criminal matters, which has weakened the position of suspects considerably,17 and the trans-border transfer of evidence, require a common system of fundamental judicial rights. The most important framework is the Charter of Fundamental Rights of the European Union (CFREU). Since 2009, it has had the same legal status as the European Union treaties. Its catalogue of fundamental rights is binding on institutions of the EU, and on Member States when they apply European Union law (Art. 51 (1) CFREU).

already been considered under another international investigation or settlement procedure, namely by ECtHR. 14 Jalloh v. Germany [GC], no. 54810/00 (2006); Gäfgen v. Germany [GC], no. 22987/05 (2010); Hellig v. Germany, no. 20999/05 (2011). 15 The most recent decision Furcht v. Germany, no. 54648/09 (2014), is about a defendant who was incited by undercover police officers to commit the offences for which he was convicted (drug entrapment). 16 In comparison to other countries: France: 691 convictions in total (torture: 2; inhuman or degrading treatment: 25; fair trial: 263; length of proceedings: 282); Italy: 1,760 convictions in total (torture: 4; inhuman or degrading treatment: 26; fair trial: 273; length of proceedings: 1189); Russia: 1,503 convictions in total (torture: 46; inhuman or degrading treatment: 504; fair trial: 655; length of proceedings: 172); Turkey: 2,733 convictions in total (torture: 29; inhuman or degrading treatment: 294; fair trial: 801; length of proceedings: 574); United Kingdom: 301 convictions in total (torture: 2; inhuman or degrading treatment: 17; fair trial: 91; length of proceedings: 27). Cf. European Court of Human Rights, Annual Report 2014, p. 176; on the internet at: http://www.echr.coe.int/Documents/Annual_Report_2014_ENG.pdf. 17 Helmut Satzger/Frank Zimmermann, A Manifesto on European Criminal Procedure Law: Summary, Zeitschrift für Internationale Strafrechtsdogmatik (2013), p. 411.

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bb) The European Court of Justice in Luxembourg18, however, tends to interpret the scope of application of the Charter in a very extensive (or even expansive) way. At least according to the quite recent decision in Åkerberg-Fransson19, it is sufficient for EU fundamental rights to apply that there is any kind of “connection” between national law and EU-Law. Of course you may identify such a link in nearly every case (if you want to promote your importance as a court). It would be less problematic, if CFREU were strictly regarded as a minimum and not as a maximum standard of human rights protection. Under the decision in Melloni20, however, Member States should no longer be allowed to require their own higher standards in procedural safeguards, wherever EU Law applies so that the effectiveness of EU Law, especially the principle of mutual recognition, could be compromised. If one accepted this interpretation of EU law as correct, the introduction of the Charter of Fundamental Rights would actually lead to a restriction in human rights protection. A self-contradiction in my opinion, which never was intended, particularly since there is no possibility for an individual to submit a complaint to the ECJ for violations of the Charter. Furthermore, even Art. 53 CFREU states that “(n)othing in this Charter shall be interpreted as restricting or adversely affecting human rights and fundamental freedoms as recognised by Union law […] and by the Member States’ constitutions”. So future decisions of the ECJ must be observed very narrowly. cc) Moreover, the relationship between CFREU and ECHR is quite difficult, even though all Member States are contracting parties to the ECHR, and, according to Art. 6 (2) 1 TFEU, the Union was supposed to accede to the Convention. Nevertheless, in 2014 the ECJ issued a negative opinion on the EU’s accession to ECHR21, fearing that the Union and its institutions, including the ECJ, could become subject to the external control mechanisms provided for by the ECHR, in particular, to the decisions and the judgments of the ECtHR. This was bringing the accession process to a halt. 3. Intermediate Result It follows that in Germany there is a pluralist system of human rights protection involving the German Federal Constitution (Grundgesetz – abbreviated GG), the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFREU), which are usually convergent or complement each other, but may sometimes be divergent or in some way “vie” with each other. We have three competing courts, in Karlsruhe, Strasbourg and Luxembourg, each of which considers 18 The European Court of Justice is in charge of interpreting the Charter. National courts may refer questions to the ECJ, but it is not possible for an individual to appeal directly to the ECJ. 19 Åklagaren v. Hans Åkerberg Fransson (C-617/10) [2013] 2 Common Market Law Review, p. 46. 20 Melloni v. Ministerio Fiscal (C-399/11) [2013] 2 Common Market Law Review, p. 43. 21 ECJ, Opinion 2/13 of the Court (Full Court) 18. 12. 2014.

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itself as the most important court dealing with fundamental rights in criminal proceedings.

III. Human Dignity in Criminal Procedure After contemplating this overlapping scheme, sceptics may say: “Too many cooks spoil the broth.”22 Nonetheless, from a German point of view, fortunately, there have not been any insoluble conflicts so far between the courts. In my opinion, German national law and our national constitutional law are still the most important shield we have in practice against excessive incursions by the state into individual rights in criminal proceedings. This can be demonstrated using Art. 1 (1) GG as an example – comparing our idea of human dignity with foreign or supranational standards.23 1. The Right Against Compulsory Self-Incrimination Of course, a suspect and his knowledge is the best source of information as well as the best address to establish what happened in the case. Using tricks, threats or even force could be very effective methods of fact-finding. In criminal proceedings, however, the accused must not be treated as a mere object of the state’s efforts to determine the truth;24 he must be treated as a subject at trial with his own procedural rights and rights of participation. He is not a witness in his own case, and in Germany he will not be punished for false testimony25, unless he falsely accuses another, which would then incur criminal liability under § 164 German Criminal Code (Strafgesetzbuch – abbreviated StGB).26 As such, the defendant is not obliged to provide evidence against himself. The maxim is commonly expressed with the Latin phrase: Nemo tenetur se ipsum accusare, meaning that no man is bound to accuse himself.

22

Andreas Vosskuhle, Session 6, Keynote Lecture: Human Rights – Global Culture – International Institutions, Our Common Future (2010). 23 Human dignity was also mentioned in Art. 151 of the Weimar Constitution (1919), and, nowadays may also be found in Art. 1 CFREU. 24 BVerfGE 26, 66 (71); BVerfGE 38, 105 (111). 25 In criminal proceedings § 153 StGB (false testimony) and § 154 StGB (perjury) are only applicable to witnesses and expert witnesses. 26 In civil proceedings, one party can file a petition for the adverse party to be examined regarding the facts and circumstances to be proven (§§ 445 et seq., Zivilprozessordnung – ZPO, i. e. Code of Civil Procedure). If the opponent lies under oath, he is guilty of perjury under § 154 StGB. Furthermore, most false statements in civil proceedings will incur criminal liability at least for attempted fraud under § 263 StGB.

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In the late Middle Ages and Early Modern Period,27 in contrast, torture was a common tool for collecting evidence. Under Art. 60, 67 Constitutio Criminalis Carolina 1532 (abbreviated CCC) of the Holy Roman Empire, only a confession or the statement of two (“good”) witnesses was sufficient evidence for a conviction (the gesetzliche Beweistheorie). Eyewitnesses were rare, even in those days. So, when sufficient circumstantial evidence had established probable cause (Art. 24 et seq. CCC), torture (peinliche Befragung, literally painful questioning) was the only method possible for obtaining the necessary confession.28 The statutory requirements for using torture under the Carolina, however, were nearly the same as the high burden for an ordinary conviction in use today.29 Shortly after Frederick II, known in Germany as Frederick the Great (Friedrich der Große), was crowned King of Prussia, indeed on the third day of his reign (1740 – 1786), he abolished nearly all legal use cases for judicial torture in his kingdom. Nevertheless, this revolutionary decree was kept secret as the authorities were afraid that criminal convictions would otherwise rarely be achieved. Furthermore, the already existing system of punishment for lying (Lügenstrafe) and poena exordinaria became more important.30 Other German states abolished torture much later, e. g. Austria (1776), Bavaria (1806), Hannover (1822) and finally Gotha (1828). It was not until the introduction of free evaluation of evidence (freie Beweiswürdigung)31, including the admission of circumstantial evidence in ordinary trials in the 19th century32, that the accused in Germany stopped being the object of the proceedings, obliged to provide self-incriminating evidence, and became a subject of proceedings, who was allowed to defend his own interests.33 27

In the Early and even High Middle Ages, trial by ordeal was practiced, which, of course, was often even more painful for the accused than torture; see Eric Hilgendorf, Folter im Rechtsstaat?, Juristenzeitung (2004), pp. 331, 332. 28 Paul Johann Anselm Feuerbach, Aufhebung der Folter in Baiern, Themis oder Beiträge zur Gesetzgebung (1812), p. 267. 29 Gustav Radbruch, Die Peinliche Gerichtsordnung Kaiser Karls V. von 1532, 4th ed. (Reprint 1975), pp. 17 et seq.; ibid., Einführung in die Rechtswissenschaft, 5 – 6th ed. (1925), p. 130; Eberhard Schmidt, Einführung in die Geschichte der deutschen Strafrechtspflege, 3rd ed. (1965), § 110. The “witchcraft” trials, of course, were an infamous exception. Jan Zopfs, Juristische Überzeugungskunst am Beispiel der Cautio Criminalis, Spee-Jahrbuch (2003), pp. 153 (160 et seq.). 30 Arnd Koch, Folterbefürworter nach Beccaria, in: Karsten Altenhain/Nicola Willenberg (eds.), Die Geschichte der Folter seit ihrer Abschaffung, pp. 11, 16 et seq.; John H. Langbein, Torture and the Law of Proof, pp. 61 et seq.; see also (contemporarily) Feuerbach, op. cit. (fn. 28), pp. 267 et seq. 31 In Israel, by contrast, you may find even stricter rules for collecting and evaluating evidence in ordinary criminal trials in the Evidence Ordinance (N9=4L8 N79KH) of 1971. Maybe evidence rules in need of reform are also one reason for the increasing use of administrative detention, as a modern type of poena exordinaria. 32 Eberhard Schmidt, Einführung in die Geschichte der deutschen Strafrechtspflege, 3rd ed. (1965), § 288. 33 Gustav Radbruch, Einführung in die Rechtswissenschaft, 5 – 6th ed. (1925), p. 135.

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a) The Right to Silence and Prohibited Methods of Examination The nemo tenetur-principle is mentioned indirectly in the German Code of Criminal Procedure § 136 (Strafprozessordnung – abbreviated StPO), which states that the accused shall be informed of the offence with which he is charged and of the applicable criminal law provisions. He shall be advised that the law grants him the right to respond to the charges, or not to make any statement on the charges, and the right, at any stage, even prior to his examination, to consult with defence counsel of his choice. If this does not occur, the evidence obtained by the examination is inadmissible in the main trial.34 Furthermore, certain interrogation methods are strictly forbidden under § 136a StPO: ill-treatment, induced fatigue and physical interference, administration of drugs, torment, deception or hypnosis. Coercion may only be used as far as the law of criminal procedure permits. Threatening the accused with measures not permitted under its provisions or holding out the prospect of an advantage not envisioned by statute, as well as measures which impair the accused’s memory or his ability to understand, are all not permitted. These prohibitions, of course, are not meant solely to prevent unreliable or false confessions35, which may have been a central argument of the early torture abolitionists in the 17th and 18th century, for example Friedrich Spee S.J. (1591 – 1635)36 and Cesare Beccaria (1738 – 1794)37. Otherwise, the state could develop more effective and more subtle methods of torture which produced more reliable results. Furthermore, one has to look at the historical background of the provision: § 136a StPO was supplemented to the Procedure Code in 1950 as a reaction to Nazi arbitrary justice. It is directly related to the protection of human dignity in Art. 1 (1) GG and to the right to free development of the personality in Art. 2 (1) GG.38 The state has to respect the defendant’s autonomy. It must not force him to testify, but may promise to reduce his sentence in case of a confession. There is no doubt that in Germany evidence obtained in violation of these provisions is inadmissible in criminal proceedings, whether trustworthy or not. Even a later repetition of the statement without any pressure or threat will be inadmissible, if there was a continuing effect of the previous interrogation (Fortwirkung). It is therefore necessary that the defendant be given a 34

BGHSt (decisions of the Federal Supreme Court) 38, 214 (220 et seq.). Sabine Gleß, in: Ewald Löwe/Werner Rosenberg, Die Strafprozessordnung und das Gerichtsverfassungsgesetz, 26th ed. (2007), § 136a StPO, marginal no. 1. 36 Friedrich Spee, Cautio criminalis, Seu De Processibus Contra Sagas Liber (1631), Dubium XX; also Jan Zopfs, Juristische Überzeugungskunst am Beispiel der Cautio Criminalis, in: Spee-Jahrbuch 2003, pp. 153 (166, 169, 177). 37 Cesare Beccaria, Dei delitti e delle pene (1763), Capitolo XVI; also Kai Ambos, Cesare Beccaria und die Folter, 122 Zeitschrift für die gesamte Strafrechtswissenschaft (2010), pp. 504, 515. 38 BVerfGE 38, 105 (111 et seq.); BVerfGE 56, 37 (43); BGHSt 14, 358 (364 et seq.); BGHSt 34, 39 (46); BGHSt 38, 214 (220 et seq.). 35

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“qualified cautioning” before being questioned again, telling him that everything he said previously cannot be used in subsequent criminal proceedings. Apart from this, however, the German law of evidence does not recognize the “fruit of the poisonous tree”-doctrine.39 This was an important issue in the Gäfgen Case40. The accused, a law student, had kidnapped the youngest son of a banking family in Frankfurt am Main. After collecting the ransom of 1 million Euro, the perpetrator (who was from that point under police surveillance) made no efforts to release the boy. He was arrested at the airport. Four days after the child went missing, the situation escalated. Mr Daschner, the deputy chief of the Frankfurt police, ordered another officer to threaten the suspect with considerable physical pain (i. e. torture) in order to make him reveal the boy’s whereabouts (thinking that the boy might be still alive and fearing that he otherwise would die of starvation). The threat worked and Gäfgen led the police to the corpse of the child. During subsequent questionings by the police, a public prosecutor and a judge, Gäfgen confirmed the first confession (after a qualified cautioning). He was convicted of murder and sentenced to life imprisonment based on the evidence he provided in his subsequent confessions, together with further evidence. Daschner and the other police officer were prosecuted and convicted of violating § 240 StGB (coercion) in a disputed decision by the District Court of Frankfurt am Main.41 b) The Question of Negative Inferences from the Accused’s Silence Of course all modern jurisdictions prohibit torture and guarantee the right of the accused against compulsory self-incrimination. The “absolute inviolability” of human dignity in the German Federal Constitution, however, leads to a more robust human dignity guarantee than exists in other European countries. One example is the question of whether the accused’s silence can or should be taken as an indication of guilt. England and Wales42 might be called the birthplace of the privilege against self39

Silverthorne Lumber Co. v. United States, 251 U.S. 385 (1920); Nardone v. United States, 308 U.S. 338, (1939). 40 Gäfgen v. Germany [GC], no. 22987/05 (2010); see also LG Frankfurt/Main StV 2003, 325; BVerfG Neue Juristische Wochenschrift (2005), p. 656. 41 LG Frankfurt, Neue Juristische Wochenzeitschrift (2005), p. 692. The sentence was rather mild; the court just issued a warning and reversed the sentence under § 59 StGB. Reactions varied: Walter Perron, in: Adolf Schönke/Horst Schröder, Strafgesetzbuch, 29th ed. (2014), § 32 StGB, marginal no. 62a agreed with this judgement, also Eric Hilgendorf, Folter im Rechtsstaat, Juristenzeitung (2004), pp. 331 (338). However, Volker Erb, Notwehr als Menschenrecht, Neue Zeitschrift für Strafrecht (2005), p. 593, expressed strong criticism of the conviction stating that Daschner was justified under § 32 StGB (necessity defence). He argued that by forbidding an individual to save the life of a victim of a cruel criminal offence, the state would become a participant in the murder. It would violate the victim’s right to life and human dignity, if one considered how cruel death by starvation would be. 42 England and Wales constitute only one of the three jurisdictions in the United Kingdom. Scotland and Northern Ireland have got their own respective criminal justice systems.

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incrimination, even though there is some disagreement about its precise origins.43 The Common Law system of trial by jury developed considerable freedom in evaluating evidence, making torture unnecessary, much earlier. Under the current law, the English police has to caution the accused, telling him that he does not have to say anything (section 67 PACE, Code of Practice C); he will be given access to defence counsel. Nevertheless, the right to silence was substantially curtailed in the United Kingdom some twenty years ago by sections 34 – 38 Criminal Justice and Public Order Act (CJPOA) 1994. Under these provisions, the court is able to draw negative inferences from the exercise of the right of silence, outside court and in court under certain circumstances. Negative inferences, including a general inference of guilt, may be drawn, for example, where the accused withholds his defence under interrogation but presents it later at trial (section 34 CJPOA). Negative inferences can also be drawn when a person fails to account for suspicious objects, substances or marks on his person, clothing or footwear in his possession, or in the place where he is arrested; or when the suspect fails to account for his presence at a particular place where it is believed that he may have committed an offence (sections 36, 37 CJPOA). According to the Strasbourg decision in John Murray v. United Kingdom44, these inroads into the right to silence do not breach Art. 6 ECHR, if warnings are given during interrogation and the accused has access to the advice of a lawyer. Only if a conviction was based solely on the accused’s failure to answer police questions, would it be incompatible with the fair trial-principle.45 Sections 34 (2 A), 36 (4 A), 37 (3 A) CJPO 1994 were added to bring the law into alignment with the court’s judgment. Other common law jurisdictions have introduced similar provisions, e. g. Ireland46, New South Wales (Australia)47 and the Republic of Singapore48. Even in Israel, as colleague Kremnitzer taught me, the law follows the English approach to some extent: although there is a right to silence during police questioning, the court – deciding about pre trial detention – will view statements provided by the accused at later stages as less credible (so exercise of the right to silence may harm the accused’s position on the issue of arrest).49 Furthermore, Art. 162 (A) of the Criminal

43

John H. Langbein, The historical origins of the privilege against self-incrimination at common law, 92 Michigan Law Review (1994), pp. 1047, 1074 et seq. 44 John Murray v. United Kingdom, no. 18731/91 (1996). 45 See also Heaney and McGuinness v. Ireland, no. 34720/97 (2000), marginal no. 47. 46 Art. 52 Offences against the State Act 1939 and the ECHR-decision Heaney and McGuinness v. Ireland, no. 34720/97 (2000), marginal no. 47; further sections 18 and 19, Criminal Justice Act 1984. 47 Art. 89 A Evidence Amendment (Evidence of Silence) Act 2013. 48 Criminal Procedure Code (2012 ed.), p. 261; further the decision in Kwek Seow Hock v. Public Prosecutor, [2011] 3 Singapore Law Reports 157 and Hock Lai Ho, Singapore Academy of Law Journal, Vol. 25 (2013), pp. 826, 829 et seq. 49 Malka v. The State, 22. 6. 2015, CA 4068/15.

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Procedure Law (=@=@H8 C=78 L7E K9;) of 1982 clearly states that a defendant’s refusal to give testimony during trial will strengthen the state’s case. In Germany, in contrast, silence of the accused must not in any way be considered evidence of criminal liability.50 This applies both where the accused remains totally silent and where he only denies that he committed the offence in question. Furthermore, the fact that he refused to cooperate with the police during their investigations or refused to answer questions up to a certain point in time before trial, must not be the basis for prejudicial inferences against him.51 The accused’s silence cannot be considered as incriminating evidence, even though he is found in circumstances which cry out for an innocent explanation (if there is one).52 The idea behind this is that a person who fears negative inferences does not have freedom of choice. The accused’s right of silence would be an illusion if the accused had to fear that his silence would be used against him. The state must abstain from any sort of coercion, whether direct or indirect. In my opinion, even in a cross-border case, a confession obtained by English or Irish police authorities under the law prevailing there, would be inadmissible in a criminal trial in Germany (after the accused has been extradited), contrary to the EU principle (or postulate) of mutual recognition.53 Nevertheless, there is one exception to this general rule in Germany: Partial silence (Teilschweigen). In this case, the defendant voluntarily gives evidence but remains silent on particular questions in respect of a count on the indictment. This may give rise to adverse inferences.54 The court must be allowed to “read between the lines”55. Otherwise the court’s evaluation of evidence would get too one-sided. I consider this line of argumentation in substance to be completely convincing. Nevertheless, this may be an example, that the dogma of absolute protection of human dignity sometimes has small fissures. c) Indirect Self-Incrimination Another example of the strong protection provided by the nemo tenetur-principle may be found in road traffic law: in Austria, as in many other European countries, the owner of a vehicle, which is identified by the number plate, is obliged under § 103 (2) Motor Vehicles Act (Kraftfahrgesetz), to disclose the name and address of the driver, for example, in cases such as exceeding the speed limit or parking offences, even if 50 BGHSt 25, 365 (368); see also Claus Roxin, Involuntary Self-Incrimination and the Right to Privacy in Criminal Proceedings, 31 Israel Law Review (1997), pp. 74, 75 et seq. 51 BGHSt 20, 281 (282 et seq.); BGHSt 38, 302 (305); BGHSt 45, 367 (368 et seq.). 52 BGH, Strafverteidiger (1988), p. 239; BGH, Strafverteidiger (1989), p. 383. 53 Frank Peter Schuster, Verwertbarkeit im Ausland gewonnener Beweise im deutschen Strafprozess (2006), pp. 201 et seq. 54 BGHSt 20, 298 (299 et seq.); BGHSt 32, 140 (144 et seq.). 55 Ernst-Walter Hanack, Anmerkung zu BGH 2 StR 612/80 v. 22. 10. 1980, Juristische Rundschau (1981) p. 433.

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the owner himself was the responsible person. The Austrian provision was enacted as a provision of constitutional rank, because the Austrian Constitutional Court had previously voided similar provisions, holding that they were contrary to the Austrian Federal Constitution.56 In Weh v. Austria57 the European Court on Human Rights held (by the narrow majority of 4:3) that these new provisions were not in breach of Art. 6 (1) ECHR. The court reasoned that the owner “was only required to state a simple fact – namely who the driver of his car was – which is not in itself incriminating”. In O’Halloran and Francis v. UK58 which dealt with similar provisions in UK law (section 172 Road Traffic Act 1988), the Court similarly argued that the essence of the drivers’ right to remain silent was not infringed. Legal rules similar to the Austrian or UK provisions, which were designed to enable evidence to be gathered for criminal prosecutions, would in Germany – without a doubt – violate Art. 1 (1) GG, although such traffic violations are solely administrative offences which give rise to small fines. If human dignity is affected, there is no room for weighing of interests. German authorities are not even allowed to enforce the collection of fines from Austria or the United Kingdom based on those provisions.59 In the Federal Republic of Germany there are some statutory provisions, which do compel an individual to disclose a criminal offence, but always for reasons not related to criminal prosecution. Under § 44a of the German Food and Feed Law (Lebensmittel- und Futtermittelgesetzbuch), for example, a food producer is required to inform the authorities about test results disclosing dangerous substances found in his products, even though he may have been negligent and committed a criminal offence. In Tax Law, two procedures need to be distinguished: the tax procedure, where in general taxpayers are obliged to cooperate, and the criminal procedure, where taxpayers may remain silent; the complicated relationship between criminal proceedings and the taxation procedure is governed by § 393 Fiscal Code (Abgabenordnung). Bankruptcy Law is another example: under § 97 Insolvency Act (Insolvenzordnung), a debtor must inform his creditors about his actions linked to the bankruptcy, even if he must disclose his own criminal offences. Nevertheless, public prosecutors are not allowed to use this information as a basis for criminal proceedings. The German Federal Constitutional Court60 has dealt with this problem several times, holding that a law, which requires an individual to disclose incriminating information may be constitutional, but only if the information is inadmissible in criminal proceedings; see the applicable current provisions: § 97 (1) 3 Insolvency Act, § 44a (1) 2 Food

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VfGH (Austrian Constitutional Court) 3. 3. 1984, G 7/80 among others. Weh v. Austria, no. 38544/97 (2004). 58 O’Halloran and Francis v. the United Kingdom [GC], nos. 15809/02 and 25624/02 (2007). 59 FG Hamburg, Deutsches Steuerrecht (2010), p. 1331. 60 BVerfGE 56, 37 (48 et seq.). 57

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and Feed Law and § 393 (3) Fiscal Code.61 Thus the duty to disclose incriminating information under these provisions is in effect not a duty of self-incrimination in criminal matters. 2. The Right Against Nonverbal Self-Incrimination The privilege against self-incrimination is not limited to oral statements: In Germany, an intoxicated driver of a vehicle who has been stopped by the police is not obliged to blow into a breathalyser which estimates his blood alcohol concentration. Exhaling is regarded as an “action” and it would be unconstitutional to force someone to give evidence against himself.62 To feign a duty to collaborate would be unlawful, but inappropriately there is no explicit caution as in § 136 (1) StPO.63 Even if the police officer just politely “offers” a breath test, many drivers may misunderstand it as a strict order. Furthermore, a driver, who seems to be inebriated, can be forced to give a blood sample. The measure may be imposed by a judge or, if there is a risk that further delay would cause evidence to be lost, by the public prosecutor’s office or their auxiliary officials (i. e. the police). Drawing blood is regarded as “passive” in respect of the individual, so it does not violate the nemo tenetur-principle to force him to submit to it. Therefore, in real life most drivers in Germany (not knowing their rights or fearing venepuncture) will give a breath sample “voluntarily”. The distinction between “active” self-incrimination and “passive” submission to related forms of evidence gathering may be difficult and sometimes appears too formal or arbitrary for non-lawyers (and for lawyers from other jurisdictions). As already mentioned, on the one hand, exhaling is regarded as “active” and unenforceable. On the other hand, venepuncture, taking fingerprints and photographs of the accused, even against his will, are regarded as “passive” and therefore are deemed to respect to his dignity. Even when a suspected drug dealer was administered an emetic by a doctor to make him regurgitate, this was not regarded as contrary to the nemo tenetur-rule. The police wanted to obtain illicit drugs the accused had swallowed. Five of the sixteen German federal states (Berlin, Bremen, Hamburg, Hesse and Lower Saxony) have used this measure frequently on the basis of § 81a StPO, which allows a “physical examination” of the accused. With regard to whether such procedures are compatible with Art. 1 (1) GG, it was argued that the emetic 61

For further examples, Roxin, op. cit. (fn. 50), pp. 74 (82). BGH, Verkehrsrechtssammlung 39, p. 184 (185). 63 OLG Brandenburg, Neue Zeitschrift für Strafrecht (2014), pp. 524 et seq.; KG Berlin, Neue Zeitschrift für Strafrecht (2015), p. 42. For critical views, Martin Böse, Die ‘freiwillige’ Teilnahme an einem Atemalkoholtest – zur Reichweite strafprozessualer Belehrungspflichten, Juristenzeitung (2015), p. 653 and Klaus Geppert, Zur Belehrungspflicht über die Freiwilligkeit der Mitwirkung an einer Atemalkoholmessung und zu den Folgen ihrer Verletzung, Neue Zeitschrift für Strafrecht (2014) p. 481, who call for an unwritten duty to caution the accused about his rights with the consequence that evidence would become inadmissible in case of non-observance. 62

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only provoked “involuntary bodily reactions”64. The ECtHR disagreed in Jalloh v. Germany.65 The judges, however, reasoned on the basis of considerations of proportionality that the evidence could be obtained by less intrusive methods. They regarded the procedure as an inhuman and degrading treatment in light of all the circumstances of the individual case – one of the three decisions, where Germany has been held to have violated Art. 3 ECHR. 3. Confidentiality of Data and Private Conversations The confidentiality of data and private conversations is another topic closely linked to human dignity and the right to free development of the personality. Material gained in a public social context, recorded speeches in front of an audience, the content of a person’s public homepage etc. may be used as evidence without further preconditions. Intrusions into an individual’s private sphere may be permitted under statute law and must be compatible with the principle of proportionality66 : Law enforcement interests, the strength of suspicion and the seriousness of the offence must outweigh privacy interests when searching a home, for example, or seizing documents. The personal intimate sphere of an individual, however, is not subject to such intrusions: information in this area is deemed to be private and is exempt from search and seizure in all circumstances.67 a) Search and Confiscation of Private Diaries A prominent example of the exclusion of evidence in order to protect privacy are the so-called “diary decisions” of the Federal Supreme Court and the Federal Constitutional Court. In the “traditional” diary scenario involving discrete entries into a bound volume (contrary to personal blogs or modern online diaries), the owner writes about his experiences, his thoughts and feelings. It is not intended that this material will ever be read by anyone other than the writer. Remarks written into such a diary are inadmissible as evidence, if the entries have a completely personal character.68 However, the mere presence of information in a diary is not sufficient for it to be excluded as evidence,69 in addition, privacy protection normally does not extend to en64

BVerfG, Neue Zeitschrift für Strafrecht (2000), p. 96; see also Klaus Rogall, Die Vergabe von Vomitivmitteln als strafprozessuale Zwangsmaßnahme, Neue Zeitschrift für Strafrecht (1998), pp. 66 (67). 65 Jalloh v. Germany [GC], no. 54810/00 (2006). 66 BVerfGE 27, 1 (7); BVerfGE 27, 344 (351); BVerfGE 32, 373 (379); BVerfGE 35, 202 (220). 67 Weigend/Ghanayim, op. cit. (fn. 8), pp. 199, 220 et seq. 68 BVerfGE 80, 367 (374 et seq.). 69 BVerfGE 80, 367 (374 et seq.); see also the first diary case BGHSt 19, 325, (327 et seq.); a further diary case was BGHSt 34, 397 (399 et seq.), where a murderer stated his wish to kill in his diary.

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tries about criminal offenses. When the accused writes about his criminal acts, i. e. how he has planned them and why he carried them out, he moves from the intimate sphere to the public sphere, according to the prevailing view.70 The content has too much connection to the social sphere, the interests of other people, especially to the interests of the victim. In the Tagebuch Case, the German Federal Constitutional Court held in a 4:4 split decision71 that this kind of information is admissible as evidence in criminal proceedings. b) Interception of Telecommunications and Other Forms of Speech Privacy and human dignity is also a very important issue, when referring to technical types of investigations. Where serious criminal offences are being investigated, § 100a StPO, for example, empowers the prosecuting authorities to monitor and record telephone or e-mail communications. The crimes and serious offences are listed in a special catalogue under § 100a (2) No. 1 – 11 StPO, including high treason, murder, manslaughter, gang theft, commercial or gang handling of stolen goods as well as criminal offences under the Narcotics Act. Speech not publicly spoken outside dwellings may be intercepted under § 100f StPO (“Kleiner Lauschangriff”, i. e. small eavesdropping), and similarly, in cases of particularly serious crimes, they may be intercepted within dwellings under § 100c StPO (“Großer Lauschangriff”, i. e. big eavesdropping). Telecommunications surveillance measures and the interception of communications outside of dwellings require a court order, imposed by one examining judge, under § 100e StPO (2017); measures within dwellings may only be ordered by a special criminal court consisting of a bench of three judges. Of course the question arises as to the extent to which such methods are compatible with the constitutional protection of human dignity. Under German law, wiretapping and surveillance of other communication must not extend to “core” personal communications, e. g. conversations between spouses or among members of the immediate family.72 Human dignity demands that individuals are able to communicate with others on very personal matters without state intrusion. After a landmark decision of the Constitutional Court,73 the German Parliament enacted a split solution: wiretaps may not be authorised under § 100d (1) StPO (2017), if there are factual indications for assuming that only information concerning the core area of individual privacy would be acquired through the measure. This is quite unlikely, so it is not a heavy burden on investigating authorities. Conversations may be taped, but the “core” personal parts may not be used as evidence, and must be deleted without delay. The same applies to the monitoring of conversations outside of 70 BVerfGE 80, 367 (375); for an opposing view Ulrich Eisenberg, Beweisrecht der StPO, 9th ed. (2015), marginal no. 391 et seq. 71 BVerfGE 80, 367 (375 et seq.). 72 Weigend/Ghanayim, op. cit. (fn. 8), pp. 199, 221. 73 BVerfGE 109, 279.

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dwellings. In the case of monitoring speech within dwellings under § 100d (4) StPO (2017), there must be an indication based on fact that statements concerning the core area of the conduct of private life will not be covered by the surveillance, a requirement which is nearly impossible to fulfil, particularly if an order is sought to monitor a suspect’s home. Thus in Germany monitoring speech within homes has no practical relevance any more (it involves ca. six cases per year in a country of 82 million inhabitants74). Conversations on commercial premises, however, are not generally considered to be part of the core area. The same applies to conversations about criminal offences, analogous to the diary decisions discussed above. One recent case, involving murder without a body, which went before the Federal Supreme Court,75 is quite interesting in this context. The suspect, whose wife had disappeared, made self-incriminating statements in his car, while the police were preparing to monitor conversations: “L’s been dead for a long time, she won’t recover […] oho I kill[ed] her […] oh yes, oh yes […] and this is my problem […]”

In view of the aforesaid discussion, the tapes could have been considered admissible evidence in the main trial, because the suspect was talking about criminal offences. However, in this case, there was no real conversation monitored as the suspect was alone in his vehicle. The Supreme Court held that self-talk, not publicly spoken, should get even more protection than diary entries. It is always intimate and not admissible, even when the suspect talks about his crimes, because when soliloquizing, the suspect always involuntarily discloses his deepest thoughts. In order to distinguish it from private diary cases, the court reasoned about the “volatility of the spoken word”, noting that the suspect did not even record his thoughts on paper.

IV. Summary and Conclusions Summing up this essay on German law is not an easy task. Our Constitutional Court has described the law of criminal procedure as “applied constitutional law”76. Indeed, since 1949, the German Federal Constitution has governed the interpretation of the Code of Criminal Procedure. As a criminal lawyer, however, I must emphasise that there are also various other traditions and influences much older than our current Constitution. Although forcing someone to make a statement was not explicitly forbidden under the Code of Criminal Procedure before 1950, nevertheless, the illegality of such methods was regarded as a matter of course and it has also been a crime under § 343 StGB since 1872. Although the rules were not observed during the black period of the Nazi regime between 1933 and 1945, our Code of Criminal Pro74 Bericht der Bundesregierung (Report by the Federal Government) gem. Art. 13 Abs. 6 Satz 1 GG für das Jahr 2013, BT-Drs. 18/2495. 75 BGHSt 57, 71. 76 BVerfGE 32, 373 (383).

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cedure has guaranteed fair criminal proceedings, under the rule of law, since it came into force in 1879. Criminal procedure, nevertheless, is infused with constitutional influences; it is one of the most important testing grounds for the human rights standard in a specific country. The standard of the German Code of Criminal Procedure and the German Federal Constitution protects the suspect’s autonomy, often apparently at a higher standard than that of many other European jurisdictions and certainly higher than the mere fair trial standard of the European Convention on Human Rights. Examples of this are the prohibition on the use of silence to make inferences about the accused’s guilt or the accused’s right not to participate in a breathalyser test. German constitutional theory puts great emphasis on the absolute protection of human dignity. Shaping its contours case-by-case, the judiciary, however, has worked out much wider margins in criminal procedure law: if one considers the core sphere of private life, it is still possible to come to highly differentiated solutions. Maybe our dogma about the absoluteness of human dignity is not as clear and straightforward as it appears at first glance. An important task for the future will be to balance in all the various branches of law the relationships and legal hierarchy between national constitutional law, the European Convention on Human Rights and the EU-Charter on Fundamental Rights.77 This, however, is a specific homemade European problem.78 The concern has been expressed that higher national standards will be displaced by rather prosecution friendly EU-standards.

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Johannes Masing, Einheit und Vielfalt des Europäischen Grundrechtsschutzes, Juristenzeitung (2015), p. 477. 78 Nikos Lavranos, The ECJ’s Judgements in Melloni and Åkerberg Fransson: Une ménage à trois difficulté, European Law Reporter (2013), p. 133.

Human Dignity, Human Rights and the Criminal Law – The Israeli Perspective By Miriam Gur-Arye*

I. Introduction Substantive criminal law has a duel function with regard to human rights, including human dignity. The main goal of the criminal law is to protect human rights, such as the right to life, the right to bodily integrity, freedom of movement, ownership over property, as well as to ensure the proper functioning of the state and its institutions. The criminal law protects these interests by enacting criminal offenses that limit the individual’s freedom to act as she/he pleases, by imposing punishment – mainly imprisonment – which restrict the offender’s right to move freely, and by attaching stigma that affects the offender’s dignity. This paper will focus on the human rights of offenders and will discuss the constitutionality of criminal law provisions that infringe upon those rights.1 Israeli Courts have rarely declared criminal law provisions invalid for excessively restricting offenders’ rights.2 In other areas, Israeli Courts are willing to deal with the infringement of human dignity extensively;3 in the area of substantive criminal law, on the other hand, the Israeli Courts tend to ignore the infringement upon human dignity of offenders and to focus solely on the infringement of liberty. The article sug* Judge Basil Wunsh Professor of Criminal Law. 1 For elaborate discussion on German-Israeli perspectives with regard to the constitutionality of criminal law prohibitions, Miriam Gur-Arye/Thomas Weigend, Constitutional Control of Criminal Prohibitions Affecting Human Dignity or Liberty: German and Israeli Perspectives, 44 Israel Law Review (2011), pp. 63 – 90. 2 But see Cr.Ap. 22791 – 09 – 13 The State of Israel v. Sheftshvili (17. 2. 2015) in which the Magistrates Court declared unconstitutional a criminal presumption according to which those who sell alcohol to minors are presumed to know that they are selling alcohol to minors, unless they can prove that the minor showed them an identity card presenting him as an adult. 3 See examples analyzed by Aharon Barak, Human Dignity, the Constitutional Value and the Constitutional Right, (2015), pp. 280 – 307; Ariel Bendor/Michael Sachs, The Constitutional Status of Human Dignity in Germany and Israel, 44 Israel Law Review (2011), p. 25; Thomas Weigend/Khalid Ghanayim, Human Dignity in Criminal Procedure: A Comparative Overview of Israeli and German Law, 44 Israel Law Review (2011), p. 199; Orit Kamir, Israeli Honor and Dignity: Social Norms, Gender Politics and the Law, (2005), pp. 132 – 164 (Hebrew).

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gests that it is due to such ignorance that the Israeli Courts have rarely declared criminal law provisions invalid for excessively restricting offenders’ rights. The article proceeds as follows: Part II discusses the Israeli Supreme Court’s ruling on the general issue of whether every criminal law prohibition restricts the rights guaranteed by the Basic Law: Human Dignity and Liberty. The discussion exposes the Court’s preference for evaluating the constitutionality of criminal law prohibitions through the lens of “liberty.” Parts III – IV discuss the implications of the Court’s tendency to ignore the infringement upon human dignity by criminal law prohibitions, by examining two cases. Part III deals with the constitutionality of a criminal law provision that deviates from the principle of culpability; Part IV looks at the criminalization of the private possession of child pornography. Concluding remarks (part V) follow.

II. Does Every Criminal Law Prohibition Necessarily Restrict Human Rights? The first case in which the Israeli Supreme Court was asked to review the impact of the Basic Law: Human Dignity and Liberty (1992)4 on the constitutionality of the substantive criminal was the Silgado case in 2002.5 Being the first case, the Supreme Court chose to deal first with the general issue of whether every criminal law prohibition restricts the rights guaranteed by the Basic Law: Human Dignity and Liberty. The Court was divided. In an opinion joined by Justice Levy, (then) President Barak held that every criminal prohibition that permits the imposition of imprisonment restricts the right to liberty, guaranteed in § 5 of the Basic Law: Human Dignity and Liberty according to which6 “[t]here shall be no deprivation or restriction of the liberty of a person by imprisonment, arrest, extradition or otherwise.” Therefore, the constitutionality of criminal prohibitions depends on the proportionality tests as specified in the limitation clause.7 Justice Strasberg-Cohen, on the other hand, assumed that the right to liberty guaranteed in the Basic Law is limited and does not include “the right to ignore the criminal norms defined by law as offenses which entail punishment of imprisonment.”8 In her view, a balance has to be struck between the rights of the offender, those of the victim and the needs of society. This balance should be struck within the framework of an analysis of the right to liberty. In her 4 Basic Law: Human Dignity and Liberty, 5752 – 1992, SH No. 1391. For an official translation, see http://www.knesset.gov.il/laws/special/eng/basic3_eng.htm. 5 CrimA 4424/98 Silgado v. State of Israel 56(5) PD 529 [2002]. 6 Silgado, para. 12 of President Barak’s opinion. 7 Section 8 of the Basic Law: Human Dignity and Liberty, which states: “There shall be no infringements of rights under this Basic Law except by a law befitting the values of the State of Israel, enacted for a proper purpose, and to an extent no greater than is required.”. 8 Silgado, para. 9 of Justice Strasberg-Cohen’s judgment [translation is mine – MGA].

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opinion, a justified restriction of liberty by criminal law prohibitions is not included in the right guaranteed by the Basic Law. The difference of opinions between President Barak and Justice Strasberg-Cohen reflects a more theoretical debate with regard to the scope of constitutional rights.9 According to one approach, consistent with President Barak’s approach,10 “[t]he definition of a right is determined on the basis of the individual claimant’s interest alone and does not take into account other rights or considerations […]; these considerations are all relegated to the limitation clause analysis […] That analysis […] draws on a ’balancing of interests’ and a requirement of ’proportionality’ between the right and the limitation, which is informed by evidence and (albeit only ostensibly) political morality.”11

According to the other approach, in line with the opinion of Justice StrasbergCohen, constitutional rights reflect “political and legal ideals”;12 classifying a right as a constitutional right has an intermediate normative value,13 which enables “a common culture” to be formed around the value of the right.14 Without taking a stand in the theoretical debate, I believe that the autonomy to act as one pleases should be classified as a constitutional right, and every criminal law prohibition should be regarded as infringing that right, and, as such, needs to be justified by the proportionality tests of the limitation clause.15 Before elaborating on the reasons underlying my belief, a remark on the assumption shared by both President Barak and Justice Strasberg-Cohen is needed. Both President Barak and Justice Strasberg-Cohen have related to criminal law provisions that permit the imposition of imprisonment. According to President Barak those provisions restrict the right to liberty, in the sense of the right to move freely, and as such their constitutionality is subject to proportionality tests; Justice Strasberg-Cohen, on the other hand, assumed that the right to liberty does not include “the right to ignore the criminal norms defined by law as offenses which en9

For that debate in general, see Barak Medina, On Infringements of Human Rights and the Proper Purpose Requirement (following Barak, Proportionality – Constitutional Rights and their Limitations), 15 IDC Law Review (2012), pp. 281 – 316 [Hebrew]. 10 For an elaboration on Barak’s approach in this regard see his book, Ahron Barak, Proportionality: Constitutional Rights and their Limitations, (2010), pp. 66 – 68 [Hebrew]. 11 Grégoire Webber, The Negotiable Constitution: on the Limitation of Rights, (2009), p. 88. In a similar spirit, see David Beatty, The Ultimate Rule of Law, (2004), p. 170. 12 Ronald Dworkin, Freedom’s Law: the Moral Reading of the American Constitution, (1996), pp. 7 – 8. 13 Alan Brudner, What Theory of Rights Best Explains the Oakes Test?, in: Grégoire Webber/Luc Tremblay (eds.), The Limitation of Charter Rights: Critical Articles on R. v Oakes, (2009), p. 70. 14 Joseph Raz, The Morality of Freedom, (1986), p. 181. 15 In the same spirit, see, Douglas Husak, Overcriminalization: The Limits of Criminal Law, (2008), p. 103; Kent Roach, The Primacy of Liberty and Proportionality, Not Human Dignity, When Subjecting Criminal Law to Constitutional Control, 44 Israel Law Review (2011), pp. 91, 107 – 111.

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tail punishment of imprisonment”.16 Such an assumption takes into account only one aspect of the criminal law provisions – the punishment. However, criminal law provisions have a wider impact upon human rights. The criminal prohibition by itself infringes upon personal autonomy: it restricts the freedom to act as one pleases; and the stigma attached to criminal conviction infringes upon the offender’s dignity. It is true that unlike the German Basic Law, which explicitly guarantees personal freedoms,17 the Israeli Basic Law: Human Dignity and Liberty does not refer explicitly to personal autonomy, but rather to specific liberty rights, such as the right to free movement. However, the constitutional guarantee of personal autonomy in Israel can be derived from the purpose of the Basic Law, “to protect human dignity and liberty”, as specified in Article 1 of the Basic Law.18 The view that personal autonomy, in the sense of freedom to act as one pleases, should be classified as a constitutional right, is based on the need to protect individuals against the intrusive power of the State. The intrusion into individual autonomy by criminal prohibitions is particularly harsh, due to both the stigmatizing of offenders and the impact of the different modes of punishment on offenders’ various rights. It is because of such harsh treatment that the criminal law is perceived of as the “last resort”. To ensure that the criminal law will indeed be turned to only as the last resort, every criminal law prohibition should be constitutionally justified by the proportionality tests of the limitation clause (President Barak’s approach). Only when criminal law prohibitions are constitutionally justified is there indeed no right to ignore these prohibitions, as Justice Strasberg-Cohen assumed. To gain further support for the view that every criminal law prohibition infringes upon personal autonomy and as such requires justification by proportionality tests, let me point out the various difficulties underlying the contrary approach of Justice Strasberg-Cohen, according to which the right to liberty does not include the right to ignore criminal law provisions. Justice Strasberg-Cohen’s view undermines the constitutional status of liberty. The needs of society are put on the same level as the right to liberty. Not even prima facie is priority given to the right to liberty over the needs of society. It seems that Justice Strasberg-Cohen indeed believes that in criminal law the rights of offenders do not have prima facie constitutional priority. According to her, “[i]n the past, human rights rhetoric in criminal law focused on the offender’s rights and the need to protect those rights against law-enforcement practices. Recently, the tendency is to strengthen the need to protect the victim and society as a whole against 16

In the same spirit see Husak, supra note 15; Roach, supra note 15. Basic Law for the Federal Republic Germany – Article 2 (1). 18 Article 1 of the Basic Law: Human Dignity and Liberty, provides: “1. The purpose of this Basic Law is to protect human dignity and liberty, in order to establish in a Basic Law the values of the State of Israel as a Jewish and democratic state.” For the willingness of Israeli Courts to recognize constitutional rights that are not specified in the Basic Law: Human Dignity and Liberty, see Bendor/Sachs, supra note 3, at pp. 44 – 51. 17

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the harmful offender.”19 That approach undermines the human rights of offenders, which need special protection both because offenders do not arouse our sympathy, so that it cannot be taken for granted that their rights will be safeguarded,20 and also as a barrier against the tendency to overuse criminal law prohibitions as a response either to public outrage or “moral panic”.21 The restriction of liberty by means of criminal prohibitions requires a more complex justification than simply striking a balance between the rights of the offender, on the one hand, and those of the victim and society, on the other hand, as Justice Strasberg-Cohen suggests. Additional factors have to be taken into account, namely the culpability of the actor and the notion of criminal liability as the last resort for dealing with the most severe anti-social behaviors. Subjecting criminal prohibitions to the limitation clause22 (as suggested by President Barak) guarantees that the court closely examines the objective that the criminal legislation seeks to achieve and evaluates whether the social interest is indeed worthy of protection, and whether it is necessary to employ criminal sanctions for that purpose or whether less intrusive, non-criminal, means are available. When employing the criminal law is necessary, the Court needs to evaluate whether the punishment is proportionate to the actor’s culpability. Finally, the court needs to evaluate whether the elements of the criminal prohibition in question properly reflect the basic values of a democratic state. In practice, however, the view that every criminal law prohibition infringes upon the right to liberty (supported by President Barak), might eventually undermine the whole process of constitutional review of criminal law prohibitions in general. Most criminal law prohibitions will be held constitutional despite their infringement of liberty. To preserve the power of constitutional review over criminal law prohibitions the courts should identify instances in which a specific criminal law prohibition infringes upon additional human rights, and first and foremost upon human dignity. Had the Israeli Courts taken human dignity within the area of substantive criminal law more seriously, they might have declared that at least some of the criminal law prohibitions which infringe not only upon liberty, but upon human dignity as well, were unconstitutional. To show this, let me analyze two cases in which the Israeli Courts reviewed the constitutionality of criminal law provisions.

19

Para. 9 of Justice Strasberg-Cohen’s judgment [translation is mine – MGA]. Mordechai Kremnitzer/Tatjana Hoernle, Human dignity and the principle of culpability, 44 Israel Law Review (2011), pp. 115 at p. 123. 21 The term “moral panic” was used by Stanley Cohen, Folk Devils and Moral Panics, 3rd ed., MacGibbon and Kee, (1972), to describe an exaggerated societal reaction to an assumed threat to moral values. Eric Goode/Nachman Nachman Ben-Yehuda, Moral Panics: The Social Construction of Deviance, 2nd ed., (2009), pp. 37 – 43, developed Cohen’s discussion by proposing specific criteria that have to be met for an event to be characterized as a full-fledged moral panic. 22 See supra note 7. 20

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III. Criminal Law Provision that Deviates from the Principle of Culpability In the Silgado case,23 the common law doctrine of natural and probable consequence in complicity,24 as was embodied in Sec. 34 A of the General Part of the Israeli Penal Law (1995),25 was constitutionally challenged. In that case, Silgado and his two partners committed an armed robbery together. In the course of the robbery, and despite prior agreement that the gun would only be used as a threat, Silgado fired the gun and killed a person. Silgado was held guilty of murder committed during the commission of another offense;26 which is a mens rea (subjective foresight) offense. The other robbers were held guilty of murder as well on the ground that the death caused by the use of the firearm contrary to the prior agreement between the perpetrators was “a natural and probable consequence” of the armed robbery: a reasonable person engaged in an armed robbery would have foreseen that a killing would take place. The public defender argued that the doctrine of “a natural and probable consequence in complicity” as embodied in section 34 A of the Israeli Penal Law, infringes upon human dignity. The infringement was claimed to be twofold: Firstly, liability for a mens rea offense is assigned to merely negligent co-principals; secondly, the mark of Cain is attached on the basis of objective foreseeability.27

23

See supra note 5. For the meaning of that doctrine in common-law legal systems see: Francis Sayre, Criminal Responsibility for Acts of Another, 43 Harvard Law Review (1930), pp. 689, 697 – 698; Sanford Kadish, Reckless complicity, 87 Journal Criminal Law & Criminology (1997), pp. 369 at p. 373; George Fletcher, Basic concepts of criminal law, (1998), pp. 192 – 93. 25 Section 34 A of the Israeli Penal Law states: 24

(a) Where, incidentally to the commission of an offense, another or additional offense is committed, the possibility of the commission of which, according to the circumstances of the case, a reasonable person could have been aware: (1) Liability for it shall be imposed on the co-principal; however, if the other or additional offense was committed with intent, the co-principal shall be liable for the offense as an offense of indifference only; (2) The instigator or the abettor shall be liable for it as an offense of negligence, if there is such an offense. (b) A court convicting a co-principal by virtue of subsection (a)(1) for an offense for which a mandatory penalty is prescribed, may impose a lighter penalty. 26 Section 300 of the Israeli Penal Law provides: “300. (a) A person who does one of the following is guilty of murder and is liable to imprisonment for life and only to that penalty: […] (3) willfully causes the death of a person in a commission of an offence or in preparing for or to facilitate the commission of an offence”. 27 Silgado, supra note 5. The public defender’s arguments are discussed in para. 7 of President Barak’s judgment.

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The Supreme Court was willing to assume that the section infringes both human dignity and liberty, but opted to deal solely with the infringement of liberty. According to the Court, due to the aggravated danger involved in co-commission of an offense, and because of the risk that if anything went wrong, the firearm was likely to be used contrary to prior agreement, there was a special need to deter potential offenders from committing crimes together, particularly crimes such as armed robbery.28 The special need for deterrence was held to justify the deviation from the culpability principle; a deviation which – according to the Court – was not disproportionate.29 Liability is assigned only to a co-principal who knowingly chooses to take part in cocommitting an offence, and the court is granted a special discretion to deviate from the mandatory penalties including life imprisonment which is a mandatory punishment for murder. The Court therefore, unanimously, held Section 34 A of the Penal Law was constitutional.30 As was noted, the public defender argued that the doctrine of natural and probable consequences in complicity infringes upon human dignity. The Supreme Court opted to deal solely with the infringement of liberty. I would like to suggest that had the Supreme Court evaluated whether the doctrine infringes upon human dignity, it might have reached the conclusion that human dignity prevents deviation from the principle of culpability simply as a way of deterring co-principals from committing crimes together in the course of which a killing might take place. Such a conclusion could have been based on the following reasoning. Human dignity requires treating every person as a subject “whose value is independent of anyone or anything else, and who should therefore be treated as an end and not as a means.”31 Treating human beings as humans rather than as mere objects requires recognizing their capacity to control their own fate and to make their own de28 Silgado, paras. 13 – 14 of President Barak’s judgment & para. 13 of Justice StrasbergCohen’s judgment. 29 Ibid., para. 15 of President Barak’s judgment. 30 The doctrine of natural and probable consequences of complicity was constitutionally challenged in the US as well. In Enmund v. Florida (458 U. S. 782. 1982), the US Supreme Court ruled that the Cruel and Unusual Punishment Clause of the Eighth Amendment does not permit “imposition of the death penalty on one […] who aids and abets a felony in the course of which a murder is committed by others but who does not himself kill, attempt to kill, or intend that a killing take place or that lethal force will be employed” (at p. 797). Nonetheless, some years later, in Tison v. Arizona (481 U. S. 137 1987), the US Supreme Court permitted imposition of the death penalty on an accomplice who neither killed nor acted with subjective foresight that a killing would take place, on the ground that “the reckless disregard for human life implicit in knowingly engaging in criminal activities known to carry a grave risk of death represents a highly culpable mental state, a mental state that may be taken into account in making a capital sentencing judgment when that conduct causes its natural, though also not inevitable, lethal result” (at pp. 157 – 58). 31 Meir Dan-Cohen, Harmful thoughts: Essays on Law, Self, and Morality, (2002), p 161. Dan-Cohen’s view is based on Kant’s “object-subject” formula, which serves as a starting point for defining human dignity in Germany, see: Immanuel Kant, Metaphysics of morals, (1996), pp. 254 – 57, §§ 37 – 4.

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cision concerning their vital interests. While making their own decisions, their status as normative beings who are able “to make universal law”32 ought not to be ignored. Normative beings are expected to “express due respect for each person’s supreme moral worth.”33 In the area of criminal law34 offenders should be treated as “moral agents” who are able to distinguish between good and evil, between what is forbidden and what is permitted, and to behave accordingly. Respecting the dignity of offenders requires the assignment of criminal liability on the basis of their choices and in accordance with their mental attitude towards the legal interest protected by the offense. By choosing to commit mens rea offenses, the offender expresses her disrespect for the interests of other people protected by the offense: she is willing to harm the protected interest (intention) or at least to knowingly take an unreasonable risk that the interest will be harmed (recklessness). The negligent offender, on the other hand, expresses lack of caution with regard to a vital interest the protection of which requires special caution. Whether or not co-principals who engaged in armed robbery express disrespect for human life depends on their subjective foresight. “Experienced robbers” may be aware that contrary to prior agreement the gun might be used if anything goes wrong. In engaging in armed robbery, “experienced robbers” express their willingness to take the risk that in the course of the robbery a killing might take place. If their willingness is proven, mens rea can be attributed to them and they indeed should be held liable for murder. “Naive robbers”,35 on the other hand, who are willing to be involved in property offenses (even in their aggravated form—a robbery) may refuse to be involved in killing. To ensure that killing does not take place they insist that the other robbers promise that the gun will not be used, even if something goes wrong. The “naive robbers” have violated the standard of reasonable care, since experience shows that such promises are not always kept in the face of unexpected events. Respecting the dignity of “naive robbers” requires that they be held criminally liable for negligence offenses, including causing death by negligence. Such liability will fit their culpability: instead of simply agreeing that no guns would be used, they should have taken reasonable measures to guarantee that no killing would take place, such as making sure that no weapons were actually carried. Permitting the imposition of liability for murder on negligent co-principals – through the doctrine of a natural and probable consequence in complicity – is inconsistent with the exceptional nature of criminal liability for negligence. Most true offenses are mens rea offenses; offenses of negligence are usually restricted to protecting vital interests – such as life, bodily integrity – whose protection requires special 32

Kant, ibid., p. 44. Meir Dan-Cohen, Sanctioning corporations, 19 Journal of Law & Policy (2010), pp. 15, 39. 34 I have elaborated on the various meanings of human dignity in the context of substantive criminal law, elsewhere, see: Miriam Gur-Arye, Human Dignity of Offenders: A Limitation on Substantive Criminal Law, 6 Criminal Law and Philosophie (2012), pp. 187 – 205. 35 The term is mine. 33

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caution, and the maximum punishment for negligence offenses is usually limited. In Israel the maximum punishment for negligence offenses cannot exceed 3 years imprisonment.36 The imposition of liability for murder on negligent co-principals in fact suggests that respecting the dignity of negligent offenders is reserved for “normative” people who, by their lack of caution, harm a vital protected interest (such as the negligent driver who causes a fatal road accident). Incautious “normative offenders” will be held liable only for negligence offenses. Incautious “criminals”, on the other hand, who have crossed the threshold of criminality by co-committing a crime, will be held liable even for murder despite the fact that the death caused did not express their disrespect for life. The implication of the doctrine of natural and probable consequence in complicity, as clarified above, is not surprising. Criminals do not arouse our sympathy and it cannot be taken for granted that their rights will be safeguarded.37 To guarantee respect for the dignity of criminals, the culpability principle should be regarded as a deontological constraint on utilitarian considerations. This constraint will prevent punishment in excess of the co-principals’ culpability simply as a way of deterring co-principals from committing crimes together in the course of which a killing might take place. The liability of co-principals for additional offenses should reflect their actual mental state. They should be held liable for murder only when they actually foresaw that a killing might take place in the course of their complicity. In such cases, liability for murder will properly convey the message that the murderers were disrespectful of human life.

IV. Private Possession of Child Pornography The acknowledgment that the vulnerability of children as a group in society warrants their special protection has led to a growing trend towards the criminalization of child pornography. The criminalization extends not only to the creation, sale and distribution of pornography, but also to the private possession of child-pornography; possession of which includes online possession through pornography webs.38

36

Israeli Penal Law § 21(b). Kremnitzer/Hoernle, supra note 2. 38 The Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography (2000), requiring each state party to ensure criminalization, inter alia, of the possession of child pornography, has been signed by 118 states (UN Treaty Collection http://treaties.un.org). Domestic legislations in various jurisdictions criminalize the private possession of child pornography, see: Canadian Criminal Code 1993, § 163.1(4); Protection of Children Act 1978 (Eng.), c. 37 § 1 & 7; Criminal Justice Act 1988 (Eng.), c. 33 § 160; Criminal Justice and Public Order Act 1994 (Eng.), c. 33 § 84 – 86; 18 U.S.C. §§ 2252 (a) (4) (b) & 2256, 1994 & Supp. IV 1998; German Penal Code, §§ 184b & c; Israeli Penal Code 1977, § 214(b) (3) (effective 1997)). 37

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Criminalization of the private possession of child pornography was challenged constitutionally both in the US in the case of Osborne v. Ohio (1990)39 and in Canada in R. v. Sharpe (2001).40 In both cases the Supreme Courts identified freedom of expression as the interest infringed by the ban on the possession of child pornography and balanced it against the state interest in protecting children from the harms involved in child pornography. Within that balance, freedom of expression was not given much weight.41 A significant weight was attached to the other side of the scales by emphasizing the compelling State interest in protecting the victims of child pornography.42 The prohibition of private possession of child pornography was upheld in both the Osborne and Sharpe cases. In Israel, the constitutionality of the prohibition of possession of child pornography was challenged before the Magistrates Court in State of Israel v. Mill (2006),43 during a criminal trial of a defendant indicted with that offense. The defendant’s attorney relied on the minority opinion in the Osborne case, according to which the ban on possession of child pornography infringes privacy: “the State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch.”44 According to this view, the State’s interest in preventing the harms involved in child pornography, and mainly the sexual exploitation of children, could be, and indeed are, served by criminalizing “the creation, sale and distribution of child pornography and obscenity involving minors.”45 Unlike the minority in Osborne, the Israeli Magistrates Court in Mill did not attach significant weigh to the fact that he was asked to rule on whether the infringement of privacy, rather than freedom of expression, is justified by the proportionality tests of the limitation clause. In upholding the prohibition on the possession of child-porno39

495 U.S. 103 (1990). 2001 S.C.R. 1, 45. 41 The majority (6:3) in Osborne defined the right infringed as “a First Amendment interest in viewing and possessing child pornography” (1990, para. 3 of White, J.), while further emphasizing that the value of permitting the possession of child pornography is “exceedingly modest if not de minimis”. 42 For the discussion generated by the rulings in the case of Osborne see: for Osborne: Lisa Smith, Private possession of child pornography: Narrowing at-home privacy rights, Annual Survey of American Law (1991), pp. 1011 – 1046; David Johnson, Why the possession of computer-generated child pornography can be constitutionally prohibited, 4 Albany Law Journal of Science and Technology (1994), pp. 311 – 332; Debra D. Burke, The criminalization of virtual child pornography: A constitutional question, 34 Harvard Journal on Legislation (1997), pp. 439 – 472. For discussions of Sharpe: Sonja Grover, Oppression of children intellectualized as free expression under the Canadian Charter: A reanalysis of the Sharpe possession of child pornography case, 11 International Journal of Children’s Rights (2003), pp. 311 – 332; Lise Gotell, Inverting Image and Reality: R. v. Sharpe and the Moral Panic around Child Pornography, 12 Constitutional Forum (2001), pp. 9 – 22. 43 Cr. App. (Tel-Aviv) 06/005174 The State of Israel v. Mill, 27. 12. 2006. 44 Osborne, supra note 39, Part II of Justice Brennan citing Stanley v. Georgia 394 U.S. 557 p. 565 (1969). 45 Osborne, supra note 44, p. 142. 40

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graphy, the Court in Mill relied on the same reasoning expressed both by the majority in Osborne and in Sharpe. Similarly to Osborne and Sharpe, the Israeli Court in Mill emphasized that the State has a legitimate interest in “drying up the market”: the ban on possession of child-pornography helps destroy the market for child pornography and indirectly decreases the sexual exploitation of children involved in the production of the pornography.46 The ban on the possession of child pornography further encourages the possessors of these materials to destroy them; destruction helps prevent the grooming and seduction of children through the use of child pornography.47 I would like to suggest that had the Israeli Court taken the infringement of privacy in this context seriously, it would not have based its ruling on the majority opinions in both Osborne and Sharpe.48 To show this, let me rely on the German notion of the “human dignity core” of privacy.49 There is a close connection between the value of human dignity and privacy.50 Treating human beings as subjects, respecting individualism, requires enabling each individual to develop her/his own personhood.51 To be able to develop selfhood one needs a private sphere where she/he is able to control her/his most vital interests without intrusion and where her/his accessibility to others is restricted.52 Yet, privacy is an independent legal interest, and an infringement of privacy does not necessarily involve an infringement of human dignity. Only when an invasion of privacy touches upon “the core of the personality”,53 or invades the most “intimate sphere of the individual”,54 is the “human dignity core” of privacy violated. Sexual fantasies are essential components of the self and belong to the most “intimate sphere of the individual”. In an environment of zero tolerance towards sexual practices with minors, the only channel one has to express one’s sexual fantasies about sex with minors is within oneself, inter alia, by watching child pornography. 46 Judge Peled ruling in the Mill case in this context was based on Osborne, supra note 44, p. 142 and on Sharpe, supra note 40, p. 92. 47 Here too Judge Peled’s ruling was based on Osborne, supra note 44, p. 142 and Sharpe, supra note 40, p. 92. 48 I have elaborated on the nature of the infringement of privacy in this context elsewhere, see Gur-Arye, supra note 35, pp. 192 – 97. 49 Gur-Arye/Weigend, supra note 1, pp. 84 – 85; Bendor/Sachs, supra note 3, pp. 39 – 40; Craig Bradley, The exclusionary rule in Germany, 96 Harvard Law Review (1983), pp. 1032 (1045); Edward Eberle, Dignity and liberty: Constitutional Visions in Germany and the United States, (2002), pp. 127 – 141. 50 Avishay Margalit, The Decent Society, (1996), pp. 201 – 211; James Whitman, The Two Western Cultures of Privacy: Dignity versus Liberty, 113 Yale Law Journal (2004), pp. 1151, 1160 – 64. 51 Jeffrey Reiman, Privacy, intimacy, and personhood, 6 Philosophy & Public Affairs (1976), pp. 26 (39). 52 Ruth Gavison, Privacy and the limits of law, 89 Yale Law Journal (1980), pp. 421 (423). 53 BVerfGE 80, 367 – 383. 54 BVerfGE 34, 238 – 251.

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By criminalizing the private possession of child pornography, the State attempts to control the way the individual expresses an essential part of the self – his sexual fantasies – within himself; by doing that the State invades the core of the possessor’s privacy and in doing so infringes upon his dignity. The conclusion that criminalizing the private possession of child pornography infringes upon human dignity does not necessarily entail that such criminalization should to be held unconstitutional. Israel departs from German law with regard to the weight attached to human dignity. Unlike the absolute protection granted to human dignity under the German Basic Law,55 according to the Israeli Basic Law Human Dignity and Liberty, human dignity, like other human rights, is subject to the proportionality tests of the limitation clause. I suggest that when a criminal prohibition interferes with human dignity, very strong justification should be required for upholding it. The infringement of human dignity by regulating private sexual practices could be justified when the practice harms others. Sexual coercion, grooming and seduction of children (either by pornography or by other means) and sexual abuse of children all harm children and thus are justifiably criminalized, whether done in private or in public. By contrast, the various State interests that led the Courts in Osborne, Sharpe and Mill to uphold the prohibition of the private possession of child pornography could not justify the infringement of the dignity of the possessor. The possessor of child pornography is not the cause of the children’s exploitation, nor is he the one who seduces or grooms the children. By criminalizing the private possession of child pornography, the State invades the most intimate sphere of the possessor and uses him as a means to prevent the exploitation of children by other moral agents (by drying up the market) or the future grooming of children by yet unknown potential offenders. Infringement of the dignity of the possessor of child pornography can also not be justified by controversial scientific findings regarding the connection between child pornography and “making pedophiles more likely to offend.”56 As was noted in Sharpe, although there are studies “showing a link between highly erotic child pornography and offences […] other studies suggested that both erotic and milder pornography might provide substitute satisfaction and reduce offense.”57 An alternative interest that might justify the criminalization of the private possession of child pornography, despite its infringement of the possessor’s dignity, could be based on infringement of the child’s dignity. Indeed the minority in the Sharpe case expressed the view that child pornography infringes upon children’s dignity by stating that: “the existence of the pornographic representations, on their own violates the dignity and equality rights of children. The harm of child pornography is inherent because degrading, dehumanizing, and objectifying depictions of children, 55

Art. 1 Basic Law of the Federal Republic of Germany 1949. Sharpe, supra note 40, p. 66. 57 Ibid., supra note 40, p. 66. 56

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by their very existence […] Child pornography eroticizes the inferior social, economic, and sexual status of children. It preys on pre-existing inequalities.”58 The harms involved in child pornography, including the infringement of the children’s dignity, are primarily combated by the prohibition of the creation, sale, and distribution of child pornography. I will leave open the issue of whether the infringement of the dignity of children through pornography portraying children as submissive sexual objects by itself justifies extending criminalization to private possession of child-pornography; a prohibition which invades the most intimate sphere of individual possession and by that the individual’s dignity. I would just emphasize that those who are responsible for the existence of the pornographic representations of children as sexual objects use the children themselves as a means to create pornographic representations of children, whereas the possessors of child pornography use only the pornographic representation.

V. Concluding Remarks Rhetorically, the Israeli Supreme Court declares that every criminal law prohibition that permits the imposition of punishment infringes upon the constitutional right to liberty and as such is subject to constitutional review. In practice, such a view has led to an undermining of the whole process of constitutional review of criminal law prohibitions as it becomes routine; and Israeli Courts have rarely declared criminal law prohibitions invalid for excessively restricting offenders’ liberty. To preserve the power of constitutional review over criminal law prohibitions, the courts should identify instances in which a specific criminal law prohibition infringes upon additional human rights, and first and foremost upon human dignity. While approving the constitutionality of the doctrine of “a natural and probable consequence in complicity” – which enables assigning liability for mens rea offenses (including murder) committed in a course of complicity to negligent co-principals – the Israeli Supreme Court was willing to justify the deviation from the principle of culpability as a way of deterring co-principals from committing crimes together in the course of which a killing might take place. Had the Supreme Court evaluated whether the doctrine infringes upon human dignity, it might have reached the conclusion that human dignity prevents deviating from the principle of culpability based on deterrent considerations. A Magistrates Court in Israel upheld the prohibition on the private possession of child pornography despite its infringement upon privacy. Taking privacy seriously, should have led the Court to rule that the ban on private possession of child pornography violates the core of privacy; and violating privacy’s core infringes upon human dignity. Infringement of an offender’s dignity could be justified by considerations relating to the victim’s dignity. The possible justification of the ban on the pri58

Ibid., supra note 40, p. 158.

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vate possession of child pornography should be based on the infringement of the dignity of children through pornography portraying children as submissive sexual objects. In evaluating whether such an infringement is enough to justify the infringement of the most intimate core of the possessor’s privacy, it should be noted that those who are responsible for the existence of the pornographic representations of children as sexual objects use the children themselves as a means to create pornographic representations of children, whereas the possessors of child pornography use only the pornographic representation.

Human Dignity, Human Rights and Criminal Law – The German Perspective By Susanne Beck

I. Introduction Criminal Law as realisation of human dignity and human rights – this debate has a long tradition in Germany; especially the philosophy of the Enlightenment has strengthened this specific interpretation of German criminal law.1 But the debate is also, in many ways, a very modern one – be it the discussion about the offender having to act according to his “free will” or the discussion if other entities – corporations, for example – can and should be included as potential offenders, be it the question if the dignity and human rights of the victim are represented in modern criminal law or be it the question if human dignity in this context only refers to the dignity of the individual or dignity of humanity as such, thereby legitimising certain criminal law as, for example, the prohibition on human cloning.2 These are only a few important of today‘s discussions concerning criminal law, human dignity and human rights of offender, victim and society, on which I will focus in the following – without of course neglecting the historical background, though, as it is very important for an indepth understanding of the German perspective; this also requires some thoughts on what is the “German” content of the “German perspective”. Before I will analyse the aforementioned debates and trace their connection to the specific “German” perspective, I also want to clarify my understanding of the relationship between human dignity and human rights. The title of this volume and my contribution suggest them both being relevant for criminal law, although maybe in a slightly different way. This has to be, in my opinion, discussed in more detail to ensure that only the relevant human rights are included in the considerations about “German” criminal law. For the avoidance of doubt, I want to specify: I will not mainly focus on Human Rights in the sense of International Law but on the Basic Rights of the German Constitution as specific German interpretation of Human Rights. Then I will highlight the relevance of human dignity and human rights for German Criminal Law, on modern as well as on traditional debates. 1

For more details see, e. g., the article by Georg Mohr, “nur weil er verbrochen hat” – Menschenwürde und Vergeltung in Kants Strafrechtsphilosophie, in: Heiner F. Klemme (ed.), Kant und die Zukunft der europäischen Aufklärung, 2009, pp. 469 – 499. 2 The issues referred to here will be discussed below.

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II. The German Perspective As basis of the following analysis, I thus want to clarify what is meant with the German perspective and the focus points “human dignity” and “human rights”. “The German perspective” – this notion refers obviously, first of all, to the German legal situation in a positivist sense. Thus I will discuss German laws and legal debates in the following. But I do not want to stop there, as a comparative approach should include more than the existing laws,3 and as much as I can refer to the many important aspects we have heard about the different national perspectives, I would like to clarify what speaking from a German perspective, in my opinion, means: it implies that one cannot step outside one’s cultural perspective, that every analysis of human dignity, human rights and criminal law by a German jurist is engraved by her being German, by her national and legal culture.4 The meaning and usefulness of the – admittedly vague – notion “culture” is controversially debated; therefore, to take it as reference point is, in many ways, problematic.5 It is also problematic to speak about a specific national culture as thereby one could disregard the variety of subcultures in every nation, the different subsystems of society. Nevertheless, the common language, the shared memories and specific customs do provide the background for interpreting such normative concepts as human dignity, human rights or criminal law.6 Without being able to deepen the debate about the meaning of national culture, I just want to mention some aspects that are relevant for the German perspective. Instead of presenting a full – one-sided – picture, the analysis will imitate a kaleidoscope, and give short and obviously superficial impressions of the cultural background of the debate; although superficial, I still regard these impressions as helpful for discussing the normative concepts in question. 3

Susanne Beck, Kulturbezogener Rechtsvergleich als ergänzende Methode der Strafrechtsvergleichung, in: Susanne Beck/Christoph Burchard/Bijan Fateh-Moghadam (eds.), Strafrechtsvergleichung als Problem und Lösung, 2011, pp. 65 – 86 (pp. 78 et seq.). 4 Cf. Beck, op. cit. (fn. 3), pp. 65 – 86 (p. 85); Philippe Mastronardi, Verrechtlichung der Menschenwürde – Transformationen zwischen Religion, Ethik und Recht, in: Kurt Seelmann (ed.), Menschenwürde als Rechtsbegriff – Tagung der Internationalen Vereinigung für Rechtsund Sozialphilosophie, Schweizer Sektion Basel, 25 bis 28. 6. 2003, ARSP Beiheft, Nr. 101, 2004, pp. 93 – 115 (pp. 93 et seq.). For the debate about law and culture see also Jan-Christoph Marschelke, Recht und Kultur – Skizze disziplinärer Zugänge der Rechtswissenschaften zu Kultur und Interkulturalität, Intercultural Journal 16, 2012, pp. 63 – 94; with a specific focus on human dignity see Jan-Christoph Marschelke, Grundbegriffe der interkulturellen Theorie und Menschenwürde, in: Jan C. Joerden/Eric Hilgendorf, (eds.), Handbuch Menschenwürde und moderne Medizin, 2013, pp. 393 – 415. 5 For an overview of the debate see Johanna Riegler, Aktuelle Debatten zum Kulturbegriff, 2003, available at: http://www.oeaw.ac.at/sozant/files/working_papers/wittgenstein/band002. pdf (last access on 21. 8. 2015). 6 Cf. Phillipe Mastronardi, Verrechtlichung der Menschenwürde – Transformationen zwischen Religion, Ethik und Recht, in: Seelmann, (ed.), op. cit. (fn. 4), pp. 93 – 115 (pp. 94 et seq.).

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The historic moment of the creation of the German Constitution in its current version can be described as a fundamental turning point in German history.7 After the experience that unimaginable human cruelty is possible, in the aftermath of the Third Reich and World War II, after the experience of dictatorship as well as an unstructured and uncontrolled democracy (Weimar Republic), standing ashamed under the observation of the whole world, the German state was consciously rebuilt on human dignity as first and most important principle. The intention to rebuild a constitutional state with internal control mechanism is communicated to the outside world as well as to the inner community. The concept of Human Dignity is, therefore, an expression of this historic moment,8 as are the Basic Rights in Articles 2 – 19 of the Constitution (including restrictions on state power, particularly in Article 20 GG).9 But these concepts were not invented afresh at this point – their acceptance and enforceability might also have been influenced by their roots in the religious background as well as in philosophy.10 Christianity does have some strong deontological principles, and also does – as I will discuss in a bit – have a specific understanding of “guilt” and “sanction” that might be relevant to the German perspective on criminal law. Both Catholicism and Lutheran Protestantism played important roles in Germany’s past, and, to a certain extent, in its present. While Lutheran Protestantism – very roughly – emphasises autonomy, the rationality of human decisions, as well as their responsibility11 the Catholic Church generally stands for dogmatism but, also, for integrating the emotional and fallible side of human beings.12 Christian churches have been and still are supported by the otherwise metaphysically neutral state (Art. 140 GG).13 Although they rarely are present in everyday life, it still is plausible that philosophers are in some ways mirroring the culture they are educated in and also in some 7 For detailed information about the history on the German Constitution see Franz Josef Wetz, Die Würde des Menschen: antastbar?, 2002, pp. 7 et seq. 8 Cf. Eric Hilgendorf, Die mißbrauchte Menschenwürde – Probleme des Menschenwürdetopos am Beispiel der bioethischen Diskussion, in: B. Sharon Byrd/Joachim Hruschka/ Jan C. Joerden (eds.), Der analysierte Mensch/The Human Analyzed, Jahrbuch für Recht und Ethik, Vol. 7, 1999, pp. 137 – 158 (p. 137). 9 For an overview of the history of the basic rights in Germany see Friedhelm Hufen, Entstehung und Entwicklung der Grundrechte, Neue Juristische Wochenzeitschrift, 1999, pp. 1504 – 1510. 10 Bernhard Vogel (ed.), Im Zentrum: Menschenwürde – Politisches Handeln aus christlicher Verantwortung – Christliche Ethik als Orientierungshilfe, 2006. 11 For the influence of Protestantism on the German legal system see Friedrich Wilhelm Graf, Protestantismus und Rechtsordnung, in: Horst Dreier/Eric Hilgendorf (eds.), Kulturelle Identität als Grund und Grenze des Rechts – Akten der IVR-Tagung vom 28. – 30. 9. 2006 in Würzburg, ARSP Beiheft Nr. 113, 2008, pp. 129 – 162. 12 For the influence of Catholicism on the German legal system Ansgar Hense, Katholizismus und Rechtsordnung, in: Dreier/Hilgendorf (eds.), op. cit. (fn. 11), pp. 69 – 128. 13 For further details see, e. g., Michael Germann, in: Volker Epping/Christian Hillgruber, Beck’scher Online-Kommentar GG, 25th ed., 2015, Art. 140, paras. 1 et seq.

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ways influencing it. Thus, the prominence of the concept of human dignity in Germany also reflects the philosophy of the (late) Enlightenment,14 especially of Kant, but also of the aftermath, be it Hegel, Nietzsche, or nowadays Habermas. As different as the philosophies are, it might be plausible to state that in some ways, either confirming or destructing, they are concerned with metaphysical concepts, deontological principles, holistic systems; the inner logic and aesthetic of the argument sometimes seeming more important than practicability. Often in German philosophy the meaning of specific notions and concepts does play an important role.15 Language as such is an important feature of culture, regarding culture as a specific way of communicating norms and values.16 Thus, the way of structuring sentences, the linguistic history and analysis of certain normative notions – such as, for example, the German words for “dignity”, “punishment” or “guilt”17 – should be kept in mind when talking about a specific German perspective. Without intending to present a comprehensive linguistic analysis, I will try to incorporate some considerations about these notions in the discussion below. Besides national culture, the German perspective for our discussion today should also include legal culture in Germany.18 Generally, it can be said that German law does have a deductive structure. Thus, precedents are not binding in subsequent cases. Legal philosophy has been characterised mainly by debates between positivists and natural lawyers and discussions of specific normative concepts. The connection between jurists and practitioners is quite strong, with academics often undertaking the task of commenting on laws as preparation for legal practice. The education of lawyers is focused on the tasks of a judge. These sketches of a specific “German” perspective are, admittedly, rough and fragmentary, but – nonetheless – hopefully sufficient as template for use in following my arguments on human dignity, human rights and criminal law. Before discussing these concepts and the relationships between them, I want to emphasise that the German perspective also is contemporary, influenced by, inter alia, multiculturalism, by

14

Cf. Vogel (ed.), op. cit. (fn. 10), pp. 18 – 20. Heinz Duthel, Dialektischer Materialismus – Wissenschaftlicher Sozialismus – Die analytische Philosophie, 2013, p. 28; also Michael Quante, Interdisziplinarität und Politikberatung – Herausforderungen der Philosophie, in: Kilian Bizer/Martin Führ/Peter Henning Feindt (eds.), Responsive Regulierung, 2002, pp. 175 – 195 (p. 182). 16 On the influence of language on the preception of the world, see, e. g., Dedre Gentner/ Susan Goldin-Meadow, White Worf, in: ibid. (eds.), Language in Mind. Advances in the Study of Language and Cognition, 2003, pp. 3 – 15. 17 “Würde”, “Strafe”, “Schuld.”. 18 For more detail on German legal culture, particularly with regard to private law see Konrad Zweigert/Hein Kötz, Einführung in die Rechtsvergleichung, 3rd ed., 1996, pp. 130 et seq.; also Michael Walter, Die Frage nach der Rechtskultur als Brücke zwischen Kriminologie und Strafrecht, 2011, pp. 629 – 635 (pp. 631 et seq.). 15

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European law and politics and by modern risk society,19 as is the case for many other nations as well. All of these developments have to be included in the German understanding of criminal law and its foundations in human dignity and human rights.

III. Human Dignity and Human Rights/Basic Rights “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority” (Art. 1 (1) GG). Yesterday and today we already have heard many important thoughts and arguments about different understandings of Art. 1 (1) GG as well as about the relation to human rights.20 Thus, I will focus on clarifying my position. Human dignity in the sense of Art. 1 (1) GG is , as mentioned above, to be interpreted in the light of the philosophy of the Enlightenment, of a liberal understanding of the state as counterpart of its individual citizens, but also against the background of the aftermath of the Third Reich and World War II. Thus, although dignity is not a right in a strict sense, it can be regarded as a foundation for specific rights or, with Hannah Arendt, in some ways the right to have rights.21 It is based on the premise of autonomy and individuality.22 And although the notion does have roots in the German word “Wert”, meaning “value”, in its modern understanding the protection of one’s dignity does not depend on specific characteristics or capabilities but only on their potential, and the legal term also does not imply obligations for humans to act in a specific, dignified way.23 Regarding the content of the concept of human dignity, it is often stated today that it is not sufficient to refer to the general formula of every human having to be treated as end, not as a mere means, as proposed by Dürig24, based on the conception of Kant.25 Because we do treat each other as means often, and it often is socially accept-

19 For an overview of various influences on German criminal law see, e. g., Thomas Fischer, Strafgesetzbuch mit Nebengesetzen, 62th ed., 2015, introduction, paras. 11a et seq., includes many further references. 20 See the contributions of Englard, Hilgendorf, Medina and Schmahl in this volume. 21 Hannah Arendt, Elemente und Ursprünge totaler Herrschaft – Antisemitismus, Imperialismus, totale Herrschaft, 9th ed., 2003, p. 25. 22 Cf. Susanne Beck, Schuld und Verantwortung, in: Eric Hilgendorf/Jan C. Joerden (eds.), Handbuch Rechtsphilosophie, 2017, pp. 394 – 400. 23 For detailed information about the modern understanding of dignity see Thomas Gutmann, Struktur und Funktion der Menschenwürde als Rechtsbegriff, in: Carl Friedrich Gethmann/J. Carl Bottek/Susanne Hiekel (eds.), Lebenswelt und Wissenschaft, 2011, pp. 309 – 331, includes further references. 24 Günter Dürig, Der Grundrechtssatz von der Menschenwürde, Archiv des Öffentlichen Rechts 81, 1956, pp. 117 – 157 (p. 127). 25 Immanuel Kant, Grounding for the Metaphysics of Morals, 1785, Ellington, JW (tr.), 3rd ed., 1993, p. 43.

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ed,26 one does need a thicker conception of which usage is condemnable and which is not. Additionally, the formula does not contain all case groups generally accepted as violations of Art. 1 GG. Therefore, it is more plausible to understand the norm as collection of specific fundamental claims or rights of each citizen as has been proposed by Eric Hilgendorf.27 The norm does, undoubtedly, contain a deontic limit for state actions (e. g. torture); the ensemble theory also includes claims to benefits and the obligation of the state to ensure dignified interaction of private citizens with each other. Additionally, it communicates the inherent value, autonomy and personhood of every human being. Despite the individualistic elements, the voices which interpret human dignity – at least additionally – as a relational concept are becoming more prominent in Germany as well.28 Especially in the context of modern technologies, one even goes so far as to interpret human dignity as a collective right of society as a whole; for example, the criminalisation of cloning or stem cell research sometimes has been justified by some of its proponents by the necessity of protecting the dignity of humanity as such,29 rather than using the rather questionable argument of protecting the individual human embryo. In the light of the contractual, liberal orientation of the German Constitution, this position seems to be regarded as opinion of a minority amongst constitutional jurists, though. Human dignity also irradiates into the Human/Basic Rights as base and according to some, in my eyes quite plausible constitutional theories as core of each Basic Right that cannot be interfered with.30 Although not fully identical with the Human Rights in International Law, the Basic Rights in the German Constitution do cover the most relevant freedom spheres and interests of citizens, prioritised according to the generally accepted importance. All such rights must be interpreted in the light of human dignity, as just mentioned, insofar as human dignity is their base and every Basic

26 For more on this argument see, e. g., Dieter Birnbacher, Menschenwürde und Lebensrecht als Maßstäbe für PGD? Ein Kommentar aus philosophischer Sicht, in: Annemarie Gethmann-Siefert/Stefan Huster (eds.), Recht und Ethik in der Präimplantationsdiagnostik, 2005, pp. 10 – 37 (p. 20). 27 Hilgendorf, op. cit. (fn. 8), pp. 137 – 158 (pp. 148 et seq.). 28 Kurt Seelmann, Repräsentation als Element von Menschenwürde, Zeitschrift für Rechtsphilosophie 2004, pp. 127 et seq.; Christoph Menke, Menschenwürde, in: Arnd Pollmann/Gorg Lohmann (eds.), Menschenrechte: Ein interdisziplinäres Handbuch, 2012, pp. 144 – 150. 29 Christoph Enders, Die Menschenwürde und ihr Schutz vor gentechnologischer Gefährdung, Europäische Grundrechte Zeitschrift 1986, pp. 241 – 252 (pp. 242 and 244); for the debate see also Jan C. Joerden, Wessen Rechte werden durch das Klonen möglicherweise beeinträchtigt?, in: Byrd. et al, (eds.), op. cit. (fn. 8), pp. 79 – 90 (pp. 86 et seq.). 30 See Miriam Gur-Arye/Thomas Weigend, Constitutional Review of Criminal Prohibitions Affecting Human Dignity and Liberty: German and Israeli Perspectives, Israel Law Review, Vol. 44:63 2011, pp. 63 – 89 (p. 69) with further references.

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Right does contain a nuclear mirroring dignity which has to be respected.31 Besides the participation rights and fundamental freedom spheres such as the sphere of life, body, privacy, religion, etc., for the following considerations the freedom of action, Art. 2 GG as fundamental expression of a liberal understanding of the state is to be taken into account.32 But interpretation of Basic Rights has developed further: Besides the liberal approach, they are also regarded as obligation of the state to protect its citizens against potential violations of these interests.33 Additionally, the German Constitution provides specific requirements for criminal laws in Art. 103 (2) GG (nulla poena sine lege).34 Although not being rights in a strict sense, they do ensure freedom spheres: one can act more freely instead of being overcautious not to step over the line of criminal law because this line has to be drawn as clearly as possible.35 In general, it can be said that the modern interpretation of human dignity and basic rights, on which German criminal law is based, is still oriented towards the traditional contractual, liberal understanding of the state generated by the Enlightenment.36 Still, in the light of modern technologies, contemporary risk society, international and European influences and a growing consciousness of the fallibility of an overemphasised liberalism, social aspects have become more important, as can be seen in the social interpretation of basic rights as obligations to protect the citizens,37 or in the debates about the dignity of humanity as such.38 Irrespective of the interpretation of these developments, they have to be included in the analysis.

31 See, e. g., the decisions of the Federal Constitutional Court of 10. 10. 1995 (1 BvR 1476/ 91 – Neue Juristische Wochenzeitschrift 1995, pp. 3303 – 3310 (p. 3304) and 11. 3. 2003 (1 BvR 426/02 – Neue Juristische Wochenzeitschrift 2003, pp. 1303 – 1305 (p. 1304)). 32 For additional detail on freedom of action see, e. g., Heinrich Lang, in: Epping/Hillgruber, op.cit. (fn. 13), Art. 2, paras. 2 et seq. 33 See the judgement of the Federal Constitutional Court of 15. 1. 1958 (1 BvR 400/57 – Neue Juristische Wochenzeitschrift 1958, pp. 257 – 259). 34 For detailed information about the specific requirements of Art. 103 (2) GG see e. g. Henning Radtke/Andrea Hagemeier, in: Epping/Hillgruber, op. cit. (fn. 13), Art. 103, paras 18 – 43. 35 Radtke/Hagemaier, op. cit. (fn. 34), paras 23 and 24. 36 Cf. Vogel (ed.), op. cit. (fn. 10), pp. 18 – 20. 37 See the judgement of the Federal Constitutional Court of 15. 1. 1958 (1 BvR 400/57 – Neue Jurisitsche Wochenzeitschrift 1958, pp. 257 – 259). 38 Enders, op. cit. (fn. 29), pp. 241 – 252 (pp. 242 and 244); Josef Isensee, Menschenwürde: Die säkuläre Gesellschaft auf der Suche nach dem Absoluten, Archiv des öffentlichen Rechts 131, 2006, pp. 173 – 218 (p. 215).

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IV. Criminal Law – Realisation of Human Dignity and Basic Rights Against this background, in the following I want to discuss the relevance of these normative concepts for German criminal law, traditionally as well as nowadays. Therefore, I will focus on the offender, on his dignity and his basic rights. But I also will include the victim and society, because the complete picture of how human dignity and basic rights are influencing criminal law only becomes clear when integrating the rights of all parties involved: the rights of victims to be protected or the need of society for normative stability can conflict with the dignity and rights of (potential) offenders. Thus this analysis has to consider the balance of these conflicting interests as much as the individual rights of (potential) offenders. 1. The Offender’s Dignity and Basic Rights Contemporary German criminal law is, first and foremost, oriented towards the offender, his dignity, rights and freedom. The Enlightenment, as strong influence of legislatory actions in the 19th century, as well as the founding mothers and fathers of the German Federal Constitution, after World War II were concerned with limiting state powers, including the usage of power to imprison arbitrarily. Citizens should be respected as human beings, being taken seriously in their actions and decisions, not regarded merely as danger for the government or others, but rather as autonomous agents, acting according to their own free will and self-given laws.39 a) Human Dignity of the Offender As mentioned above, the focus of traditional criminal law was directed towards the offender, his rights, his freedom and his dignity. One central aspect of this understanding was that criminal punishment was only possible if the offender was responsible for a specific criminal action and result.40 Only in this way he is not treated as mere danger to others but as human being; only in this way he is taken seriously as person. This is expressed in objective requirements, such as objective attribution, but mainly in the German “guilt principle” or “culpability principle”.41 The German word for “guilt”, still playing the most important role in the debate, can be connected 39

Cf. Michel Vovelle, Der Mensch der Aufklärung, 1996, p. 7. BVerfGE 45, 187, 259 et seq.; 54, 100, 108; 91, 1, 27. 41 Helmut Frister, Schuldprinzip, Verbot der Verdachtsstrafe und Unschuldsvermutung als materielle Grundprinzipien des Strafrechts, 1988; Hans Joachim Hirsch, Das Schuldprinzip und seine Funktion im Strafrecht, Zeitschrift für die gesamte Strafrechtswissenschaft 106, 1994, pp. 746 – 765 (p. 746); Henning Radtke, in: Wolfgang Joecks/Klaus Miebach (eds.), Münchener Kommentar zum Strafgesetzbuch, Vol. 2, 2nd ed., 2012, comments on § 38 et seq., recitals 14 – 15 with further references. See also Gur-Arye/Weigend, op. cit (fn. 30), pp. 63 – 89 (p. 85) with further references. 40

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to the old notion of “sculan” – “sollen” (civil obligations), but also to skel meaning to cut, hit, split which could hint towards the sanction, but also toward the offence which is “splitting” the group.42 In a more modern understanding of criminal law, one also finds references to the expression of responsibility which hints at the need of the offender’s responding (“antworten”) to the state and society for the action in question, thus is interpreted in a more relational way.43 The necessity of “guilt” or “responsibility” is mirrored in German debate on the generally accepted theories of criminal law.44 This is obvious for retributive theories as they explicitly refer to the moral guilt of the offender; his splitting of the group has to be compensated by sanctioning.45 It is also the case for communication theories that, recently, have been adopted by the German debate as well: A judgement stating that the offender committed a criminal offence and therefore will have to serve a sentence only has communicative content directed towards the offender and the public46 if it refers to the moral wrongfulness of his action. Thus it has to be based on the idea of the offender being held responsible for his actions. Finally, even consequentialist theories of criminal law have not completely renounced these concepts:47 it is generally agreed upon that criminal law is not effective (no matter in which way the prevention is to be reached) if innocent citizens are punished or the punishment is disproportionate to the crime.48 Furthermore, as already mentioned, in German constitutional understanding, consequentialist theories of criminal law are restrained by deontological limits: Even if criminal laws were effective without any concept of “responsibility”, the constitutional state can only punish a person who is responsible, because treating individuals as “dangerous animals” would violate their human dignity by not respecting the authorship of actions. This approach is deeply enrooted in the deontological understanding of human dignity analysed above, influenced by the philosophy of the Enlightenment as 42

Cf. Björn Burkhardt, Schuld – rechtliche Perspektiven: Rechtstheoretische und praktisch-empirische Überlegungen, in: Hermes A. Kick/Wolfram Schmitt (eds.), Schuld – Bearbeitung, Bewältigung, Lösung. Strukturelle und prozessdynamische Aspekte, 2011, pp. 57 – 78 (pp. 57 et seq.). 43 For more information on the concepts of guilt and responsibility see Beck, op. cit. (fn. 22), pp. 394 – 400 with further references. 44 For the following see also Susanne Beck, The defence of human rights theory and the concept of responsibility, in: Arndt Sinn, (ed.), Menschenrechte und Strafrecht, 2013, pp. 11 – 22. 45 Claus Roxin, Strafrecht Allgemeiner Teil, Band. I: Grundlagen. Der Aufbau der Verbrechenslehre, 4th ed., 2006, § 3 A, para. 2; Nicola Lacey, State Punishment: Political Principles and Community Values, 1988, p. 59. 46 On the justification of criminal law with reference to communication, see R. Anthony Duff, Punishment, Communication and Community, 2001. 47 Lacey, op. cit. (fn. 45), pp. 59 et seq. (although they do not on a conceptual level, depend on the concept of “free will” – this I will discuss later in more detail). 48 Beck, op. cit. (fn. 44), pp. 11 – 22 (pp. 13 and 15 with further references).

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much as by the Canon Law, referring to God and thus establishing personhood as well as individual freedom. Thus, traditional theories of criminal law are generally based on a concise concept of “guilt” or, in a more relational way, “responsibility”. Although these elements can be found in argumentations of other nations as well, the typical German perspective maintains a close connection between dignity and authorship of the crime, between autonomy of citizens and the non-consequentialist understanding of criminal law.49 Recently, the connection between human dignity and criminal law expressed in the concept of responsibility has been challenged by legislatory developments and specific debates. They all approach criminal law in a more functional, consequentialist manner and thus relativize the strong foundation of dignity, the deontological aspects of criminal law mentioned above. First of all, modern criminal laws often contain a certain amount of preventive elements, exceeding the prevention of traditional criminal theories: they criminalise actions in preparation of the actual crime, actions only statistically dangerous or are of mere symbolic meaning.50 Some of these new criminal laws – e. g. the criminalisation of the creation of software that might be used for computer crimes51 or criminalisations of contacting terrorist organisations – might actually be springboards into the criminal proceedings52, allowing specific enquiries to prevent real violations of important interests from happening. Instead of judging a social morally condemnable criminal act, criminal law becomes a means for stopping dangerous citizens from committing such acts in future. Hereby, the citizens are downgraded to being a mere danger because of preparing acts. This development can be observed in other countries as well, e. g. strict criminal liability in the UK.53 Some of these criminal laws have actually been induced by European developments.54 But because of the specific German legal situation, the specific understanding of autonomy induced dignity and the hereon based criminal law, this does pose serious problems. This is one reason why the debate about preventive detention is very controversial, as crossroad of the need for security against dangerous people versus the dignity of the offender.

49 Cf. Susanne Beck, Meditating the Different Concepts of Corporate Criminal Liability in England and Germany, German Law Journal 2010, Vol. 11, No. 10, pp. 1093 – 1113 (pp. 1106 et seq. and p. 1110). 50 Beatrice Brunhöber, “Ohne Sicherheit keine Freiheit” oder “Umbau des Rechtsstaats zum Präventionsstaat?”, in: Beatrice Brunhöber (ed.), Strafrecht im Präventionsstaat, 2014, pp. 9 – 15. 51 Jens Puschke, Strafbarer Umgang mit sog. Hacking-Tools – Repression, Prävention oder Intervention?, in: Brunhöber (ed.), op. cit. (fn. 50), pp. 109 – 130. 52 Brunhöber, op. cit. (fn. 50), in: Brunhöber, (ed.), op. cit. (fn. 50), pp. 9 – 15 (p. 10). 53 For some thoughts on strict liability and culpability see Celia Wells, Corporations and Criminal Responsibility, 2nd ed. (2001), pp. 67 et seq. 54 § 202c of the German Penal Code for example implements the commitment made in Art. 6 (1a) of the Cybercrime-Convention of 23. 9. 2001.

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Another recent challenge for a dignity based criminal law in Germany is the debate about “free will”55, based, inter alia, on discoveries in neuroscience that sometimes were interpreted as questioning the existence of free will in the sense of indeterministic human decisions. This discussion has become even more important with new challenges for the free-will-debate. One of these challenges is the actual incongruency of the enormous amount of outer freedom and, therewith, outer responsibility of the citizens on the one side, the common feeling of being overburdened by this and being more determined than social perception communicates.56 Significant for this development are the calls for the state to create safety and the willingness to give up certain amounts of freedom in exchange, as can be seen in the just described development as well.57 In other areas, for example criminal law, determinants of citizens have become more and more considered, such as the abuse of the offender in childhood, addictions, cultural conditions. But his consideration of determinants does not follow a consistent system or thoroughly discussed rules. To be of aggressive character, for example, is a determinant being regarded as a reason for higher punishment, while being imbecile can lead to leniency. Only rarely the groundings for these decisions are being discussed and analysed. A new discussion has to be commenced in society: concepts of freedom and responsibility have to be negotiated afresh. It is difficult to predict in which directions these negotiations will develop. The consideration of behavioural determinants has to be assembled in a consistent system on a clear basis of the limits of freedom and responsibility. Strong interpretations of “free will” could imply the necessity of indeterministic decisions to qualify them as truly free and the thick understanding of human dignity according to Art. 1 1 GG could mean that such a strong interpretation does lie on the base of German law.58 This has been, for a while, strengthened by the phrasing of the Federal Court, who confirmed that it is possible to find the offender guilty because his being designed for free, responsible self-determination and therefore able to decide for the law and against unlawful behaviour.59 But, according to the in many ways 55 For further detail see Ulrich Pothast (ed.), Seminar: Freies Handeln und Determinismus, 1978. For the legal debate see, inter alia, Tatjana Hörnle, Kriminalstrafe ohne Schuldvorwurf – Ein Plädoyer für Änderungen in der strafrechtlichen Verbrechenslehre, 2013; Reinhard Merkel, Willensfreiheit und rechtliche Schuld. Eine strafrechtsphilosophische Untersuchung, 2008. 56 For the so called “social connection model” see, e. g., Iris Marion Young, Responsibility for Justice, 2013. See also Barry Schwartz, The Tyranny of Choice, Scientific American, 2004, pp. 71 – 75. 57 Stefan Huster/Karsten Rudolph, Vom Rechtsstaat zum Präventionsstaat, in: Stefan Huster/Karsten Rudolph, (eds.), Vom Rechtsstaat zum Präventionsstaat, 2008, pp. 9 – 20 (p. 16). 58 With further references regarding the “free will”-debate, see Susanne Beck, Die Schuld im Strafrecht, Ad Legendum 2015, pp. 102 – 108 (pp. 105 et seq.). 59 [The perpetretor is] “[…] auf freie, verantwortliche, sittliche Selbstbestimmung angelegt und deshalb befähigt ist, sich für das Recht und gegen das Unrecht zu entscheiden, sein

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plausible opinion of Hassemer et al., criminal law can also be based on a deadlock situation in which we can “prove” neither free will nor the opposite;60 although, one can actually already question if neuroscience or any other discipline could, in fact, prove the existence of a normative concept, of a characteristic that we attribute to one another and to ourselves. On the other hand, one should not overlook the claims of determinists to restrain from finding offenders guilty for a specific decision61; sometimes, these voices add claims to adjust the findings – either by declaring persons guilty for who they are which is expressed in certain actions62 or by categorising their actions as legal wrongs instead of communicating a social-ethical blame for their personal guilt.63 Obviously, the latter solutions do have quite convincing, pragmatic arguments speaking for them and are coherent with a more open, less loaded interpretation of human dignity. And as mentioned before, neither the concept of free will nor the understanding of human dignity necessarily requires proof of indeterministic human existence. But still, the questioning of the guilt principle by this debate does open the conception to new interpretations. Finally, the influences of human dignity on the system of German criminal law have been challenged by the discussion about whom to include.64 Especially since, in Anglo-American jurisdiction, corporate criminal liability has been widely accepted, the limitation of responsibility to natural persons is now questioned worldwide. To date, this extension of potential guilty offenders to include corporations has been accepted by a multitude of countries.65 Currently in Germany, the debate on whether legal persons and organisations (corporations, terrorist organisations, states, etc.) should be able to incur criminal liability is taking on greater importance as

Verhalten nach den Normen des rechtlichen Sollens einzurichten und das rechtlich Verbotene zu vermeiden […]”, citation from the judgment, BGHSt 2, 194, 200 et seq. 60 Winfried Hassemer, Person, Welt und Verantwortlichkeit, in: Klaus Lüderssen, (ed.), Aufgeklärte Kriminalpolitik oder Kampf gegen das Böse?, Vol. I: Legitimationen, 1998, pp. 350 – 372. 61 Grischa Merkel, Hirnforschung, Sprache und Recht, in: Holm Putzke, et al. (eds.), Strafrecht zwischen System und Telos, Festschrift für Rolf Dietrich Herzberg zum siebzigsten Geburtstag, 2008, pp. 3 – 38 (pp. 25 et seq.). 62 For an in-depth discussion of the concept of character responsibility see Nicola Lacey, The Resurgence of Character: Responsibility in the Context of Criminalization, in: Anthony Duff/Stuart P. Green, (eds.), Philosophical Foundations of Criminal Law, 2011, pp. 151 – 178; Nicola Lacey, Responsibility and Modernity in Criminal Law, The Journal of Political Philosophy, Vol. 9, Issue 3, 2001, pp. 249 – 277. 63 Hörnle, op. cit. (fn. 55), pp. 49 et seq. 64 For an overview of the debate see Gerd Eidam, Unternehmen und Strafe – Vorsorge und Krisenmanagement, 4th ed. (2014), pp. 261 et seq. (paras. 498 et seq.). 65 See, e. g., Mark Pieth/Radha Ivory (eds.), Corporate Criminal Liability – Emergence, Convergence, and Risk, 2011 and Eidam, op. cit. (fn. 64), pp. 269 et seq. (paras. 507 et seq.).

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well.66 One reason for this is that organisations have become influential determinants of the behaviour of individuals; being bound into an organisation can limit individual freedom and thus the criminal responsibility of each single member67, creating an organizational culture almost approaching a “will of its own” of the organisation itself. Therefore responsibility might have to shift from the single member to the conglomerate. Again, this depends on the interpretation of dignity and the strength of the connection between dignity and criminalisation, on the importance of relational aspects, and, finally, openness to consequentialist arguments. Nevertheless, the deductive and structure oriented German legal system is one of the few denying the possibility of corporations being criminally punishable, the main argument being their lack of certain capacities (acting, intending, and communicating).68 The arguments of the different opinions mainly69 depend on the answer to the question whether normative concepts are metaphysically defined or constructed by each society (as mentioned, German legal philosophy still is shaped by the controversy between positivism and natural law). Positivism would, obviously, be more open to an expansion of the circle of potential criminal offenders.70 But it has to be noted that the strict structure of German criminal law would have to deal with enormous problems if one would decide on the introduction of corporate criminal liability was introduced.71 Especially the regulations and debates of the General Part, be it the definition of action, objective attribution, subjective requirements, justifications or guilt, all are constructed focussing on individual human beings. Thus, one would either have to integrate regulations that are oriented towards collectives or construct a kind of separate criminal law for collectives and organisations. Without wanting to attempt to give final answers to the aforementioned debates, I would like to point out that although human dignity is still the focus point for criminalising the offender; its content has slightly shifted. The question is not whether corporations or other entities can possess dignity under Art. 1 (1) GG, but rather whether the criminal law and human dignity are interwoven in a way that does not allow the integration of other entities. Referring to the more constructivist view on the question of “free will”, it seems that the opinion does become more 66 Ibid., pp. 121 et seq. (para. 210), pp. 217 et seq. (paras. 355 et seq.) and pp. 265 et seq. (paras. 503 et seq.) including further references. 67 Ibid., op. cit. (fn. 65), p. 323, para. 23. 68 For an overview of the debate, see Gerd Eidam, Straftäter Unternehmen, 1997, pp. 91 et seq. 69 For many other factors, see Beck, op. cit. (fn. 49), pp. 1093 – 1113 (pp. 1093 et seq.). 70 An issue which could not be discussed in detail is the quite recent debate on machines or human-machine-systems. The are few advocates of the possibility of punishing machines (for example Andreas Matthias, Automaten als Träger von Rechten. Plädoyer für eine Gesetzesänderung, 2nd ed., 2010 while the acceptance of civil legal personality for “autonomous” machines seems to be growing. 71 Carsten Momsen, in: Bernd von Heintschel-Heinegg, (ed.), Beck’scher Online-Kommentar StGB, 27th ed., 2015, § 14, paras 28 – 28b with further references.

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open to a somehow looser connection between human dignity and criminal law; although one has to be cautious about the implications of a too consequentialist, too functionalist criminal law. b) Basic Rights of the Offender As we have discussed above, the basic rights of the offender are, although finding a base in human dignity, securing freedom spheres and fundamental interests. Thus, the focus in discussing the influence of basic rights onto criminal law in terms of potential offenders lies on protecting his freedom, especially the freedom of action.72 Taking the dogmatics of German Constitution which has been established over the last decades seriously, this would mean that one would have to discuss the proportionality of two aspects in each criminal law: forbidding the action as a first step, sanctioning this prohibition with criminal sanctions as a second step.73 Although it being true that the legislator does have a certain prerogative in the prognosis – of the development of the problem as well as of the effectiveness of a certain means – as well as a leeway in choosing a specific means to solve the problem,74 this does not mean the necessity of choosing criminal law would not require a plausible justification. The constitutional justifications and limits of criminal law were discussed in detail in the Incest Case, which examined the constitutionality of the criminal law prohibition on incest in the context of siblings.75 Although it is certainly correct, as the Federal Constitutional Court stated, that the limits of criminal laws cannot be derived from the idea that the law protects certain legal interests (Rechtsgutstheorie) but rather that limits are imposed by other constitutionally protected interests, the limitations of personal freedom by the criminalisation of incest

72 For the debate on the constitutional limits of criminal law see the detailed treatment by Beatrice Brunhöber, Rechtsgutstheorie und Konstitutionalisierung des Strafrechts, in: Thomas Gutmann/Fabian Wittreck/Bernhard Jakl/Michael Städtler (eds.), Evolution – Entwicklung – Epigenesis des Rechts, Beiheft der ARSP, (in preparation). 73 Otto Lagodny, Strafrecht vor den Schranken der Grundrechte: Die Ermächtigung zum strafrechtlichen Vorwurf im Lichte der Grundrechtsdogmatik dargestellt am Beispiel der Vorfeldkriminalisierung, 1996, p. 137; see also Ivo Appel, Verfassung und Strafe. Zu den verfassungsrechtlichen Grenzen staatlichen Strafens, 1998, pp. 433 et seq. 74 Winfried Hassemer/Ulfried Neumann, in: Ulfrid Kindhäuser/Urs Neumann/Hans-Ullrich Paeffgen (eds.), Nomos Kommentar zum Strafgesetzbuch, 4th ed., 2013, comments on § 1, paras. 85 et seq.; Wolfgang Joecks, in: Joecks/Miebach (eds.), op. cit. (fn. 41), introduction, para. 18; see also Gur-Arye/Weigend, op. cit. (fn. 30), pp. 63 – 89 (p. 65). 75 Cf. the decision of the Federal Constitutional Court (2 BvR 392/07) of February 2008, BVerfGE 120, 224 et seq. See also Tatjana Hörnle, Das Verbot des Geschwisterinzests – Verfassungsgerichtliche Bestätigung und verfassungsrechtliche Kritik, Neue Juristische Wochenzeitschrift 2008, pp. 2085 – 2088. See also Benno Zabel, Die Grenzen des Tabuschutzes im Strafrecht, Juristische Rundschau 2008, pp. 453 – 457.

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are questionable even if taking the legislatory prerogative into account.76 Legitimating criminal laws based on arguments for the protection of the interests of society, rather than the protection of individual interests, is always problematic and the proportionality principle has to be applied with special caution – here, one can hardly argue that criminal law is proportional. At this point, one has to take the “ultima ratio principle”77 into account, which indicates that criminal sanctions are adequate only if no other, less intrusive means can cause the same result. Until now, the proportionality of the criminal sanction is, though, rarely taken into account, by the German legislator as much as by the Federal Constitutional Court.78 Thus, at least for the moment, one could probably say that the German perspective onto criminal law, here onto the potential offender, does focus more on his dignity than his freedom of action. The theoretical emphasis on the guilt principle and the limitation to criminalise only if one can ensure the authorship for the crime in question is not reflected in how German legislator and courts deal with this freedom spheres of all citizens, rather, the focus does lie more and more on providing safety, sometimes it might even be questionable political activism. As examples, I only want to mention the far reaching criminalisations in the context of terrorism79 and the debate on so called “risk criminal law”.80 Again, this might be caused by the experience of dictatorship, of instable political situations. This is mirrored in jurisprudence on other aspects of criminal law, e. g. the principle of nulla poena sine lege certa which demands that offences be defined clearly in

76

See, inter alia, the dissenting opinion of Judge Hassemer, Federal Constitutional Court (2 BvR 392/07) of February 2008, paras. 73 et seq. For more on the debate, see Fischer, op. cit. (fn. 19), § 173 paras. 2 et seq. with many further references. 77 Arthur Kaufmann, Subsidiaritätsprinzip und Strafrecht, in: Roxin et al. (eds.), Grundfragen der gesamten Strafrechtswissenschaft: Festschrift für Heinrich Henkel zum 70. Geburtstag am 12. September 1973, 1974, pp. 89 – 108; Cornelius Prittwitz, Das deutsche Strafrecht: Fragmentarisch? Subsidiär? Ultima ratio? – Gedanken zu Grund und Grenzen von Strafrechtsbeschränkungspostulaten, in: Institut für Kriminalwissenschaften Frankfurt a. M. (ed.), Vom unmöglichen Zustand des Strafrechts, 1995, pp. 387 – 406; see also Klaus Lüderssen/Cornelius Nestler-Tremel/Ewa Weigend (eds.), Modernes Strafrecht und ultima ratioPrinzip, (1990), or ibid., in: Peter-Alexis Albrecht, et al. (eds.), Strafrecht – ultima ratio, 1992. 78 Cf. e. g. the decision of the Federal Constitutional Court (2 BvR 1062/87) of September 1989, BVerfGE 80, pp. 367 et seq. 79 For an overview of the debate see Detlev Sternberg-Lieben, in: Schönke/Schröder, (eds.), Strafgesetzbuch Kommentar, 29th ed., 2014, § 89a paras. 1 et seq. See also Benno Zabel, Terrorgefahr und Gesetzgebung, Juristische Rundschau 2009, pp. 453 – 459. 80 For the debate, see Eric Hilgendorf, Gibt es ein Strafrecht der Risikogesellschaft, Neue Zeitschrift für Strafrecht 1993, pp. 10 – 16; Cornelius Prittwitz, Strafrecht und Risiko, Untersuchungen zur Krise von Strafrecht und Kriminalpolitik in der Risikogesellschaft, 1993; Kurt Seelmann, Risikostrafrecht: Die ‘Risikogesellschaft‘ und ihre ‘symbolische Gesetzgebung‘ im Umwelt- und Betäubungsmittelstrafrecht, Kritische Vierteljahreszeitschrift für Gesetzgebung und Rechtswissenschaft, Vol. 75, No. 4, 1992, pp. 452 – 471.

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the Criminal Code.81 Although no right in a strict sense, this principle is important for securing freedom spheres of citizens, which is generally accepted in German jurisprudence. Nevertheless, the Federal Constitutional Court has been reluctant to declare criminal statutes or their interpretation in a specific case as infringements of this principle.82 Again, freedom of action – which is, as discussed, also the base for the nulla poena principle – is not emphasised in the same way practically as it is in theory. Here I also want to mention a specific characteristic of the debate about German criminal law: jurists as well as practitioners seem to focus more on traditional limitations such as legal interests (das Rechtsgut)83 rather than on constitutional limitations.84 It seems that at least partly, there are doubts about the sufficiency of limitations the constitution can provide – especially because of the prerogative in decision making the legislator has, and this has actually been supported with reluctance by the Federal Constitutional Court with regard to criminal laws. Thus, for at least some jurists85, the solution lies in focusing on traditional limitations that reach further back than the Constitution – maybe because German criminal law has existed far longer than the Constitution.86 In my opinion, however, it might be more reasonable to focus on the constitutional debate in order to increase the chance of being heard by the Federal Constitutional Court, which does not mean to restrain oneself from criminal political debates, but to provide stronger arguments on unconstitutionality of criminal laws as well. 2. The Victim’s Dignity and Basic Rights Criminal law is not only about the potential offender. It also serves to protect potential victims; although the victim of the actual crime, of course, cannot be protected 81 Henning Radtke/Andrea Hagemeier, in: Volker Epping/Christian Hillgruber (eds.), Beck’scher Onlinekommentar GG, 25th ed., 2015, Art. 103, paras. 18 – 43; von HeintschelHeinegg, in: von Heintschel-Heinegg (ed.), op. cit. (fn. 71), § 1, paras. 9 – 10. 82 An example is the judgement of the Federal Constitutional Court of March 2002 (2 BvR 794/95), which overruled the previous § 43a of the German Criminal Code. For further examples and a more detailed discussion see Gur-Arye/Weigend, op. cit. (fn. 30), pp. 63 – 89, pp. 65 et seq. 83 For the debate see Winfried Hassemer, Theorie und Soziologie des Verbrechens, Ansätze zu einer praxisorientierten Rechtsgutslehre, 1973; Eric Hilgendorf, Punitivität und Rechtsgutslehre, Skeptische Anmerkungen zu einigen Leitbegriffen der heutigen Strafrechtstheorie, Zeitschrift Neue Kriminalpolitik, vol. 4, 2010, pp. 125 – 131 (pp. 128 et seq.) as well as Roland Hefendehl/Andrew von Hirsch/ Wolfgang Wohlers (eds.), Die Rechtsgutstheorie – Legitimationsbasis des Strafrechts oder dogmatisches Glasperlenspiel?, 2003. 84 Claus Roxin, Zur Strafbarkeit des Geschwisterinzests, Strafverteidiger 2009, pp. 544 – 550 (p. 545); Hilgendorf, op. cit. (fn. 83), pp. 125 – 131 (p. 126). 85 See, e. g., Hassemer, op. cit. (fn. 83). 86 While the German Criminal Code came into force in 1871, the German Federal Constitution only came into effect in 1949.

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retrospectively, in the light of preventive theories about the legitimation of punishment, one can at least increase the possibility to prevent future crimes from happening and thus protect potential victims.87 Also, the proceedings and the sanctioning should be regarded as communication of the wrongfulness of the act – towards society, as we will discuss in a bit, but also towards the victim.88 Thus, criminal law also is or at least should be about human dignity and basic rights of the victim and potential victim as well. Here I want to emphasise that the victim also has to be treated as autonomous, as author, as end and not mere means. This does, in my opinion, require that victims take an active part in the criminal justice process, rather than just being questioned in the course of finding justice, but participating in the communication that is criminal sanctioning and that is, at the moment, reduced to state, offender and society.89 One should be aware that forcing the victim to testify against his will to reach a “just” verdict90 might be as problematic, regarding his dignity, as communicating his irrelevance for proceedings, verdict and sentence. In terms of the agency of victims in criminal law, in Germany one has been establishing a more active role for them in recent years, by providing, e. g. offender-victim-mediation.91 Here, the victim cannot only shape the process but also hope for real communication with the offender, maybe even an honest apology. Because these changes being quite recent, I do not want to conclude on their practicability yet – but it has to be stated that these adaptions towards a more active part of the victim are alien to the system of criminal proceedings in German law, and therefore difficult to integrate. Still, if one agrees to the premise of the necessity to respect the victim’s dignity and of understanding dignity in a more relational way, it is important to work harder on the integration of these aspects into criminal proceedings. The protective side of criminal laws has been strengthened since first being discussed in the abortion cases,92 in which the Federal Constitutional Court emphasised the obligation of the state to protect the life of its citizens – including embryos (from nidation) – and this obligation includes, in specific cases, the usage of criminal law. Especially if protecting vital interests, it is, according to these judgments, inadmissible to refer to other, “lesser” means. Criminal law thus expresses – as any other legal restrictions – a balance between these interests that have to be protected and the free87 For an overview of the preventive theories for the legimitation of punishment see, e. g., Tatjana Hörnle, Straftheorien, 2011, pp. 20 et seq. 88 Cf. Bernd-Dieter Meier, Strafrechtliche Sanktionen, 4th ed., 2015, p. 16. 89 Even though the German Code of Criminal Procedure (StPO) already includes the possibility of private accessory action (§§ 395 et seq.) and private prosecution (§§ 374 et seq.). 90 See, in particular, § 48 and § 51 StPO. 91 For an overview of this concept see, e. g., Günter Bemmann, Täter-Opfer-Ausgleich im Strafrecht, Juristische Rundschau 2003, pp. 226 – 231. 92 See the judgements of the Federal Constitutional Court of 25. 2. 1975 (1 BvF 1/74 – Neue Juristische Wochenzeitschrift 1975, pp. 573 – 587) and 28. 5. 1993 (2 BvF 2/90 as well as 4, 5/ 92 – Neue Juristische Wochenzeitschrift 1993, pp. 1751 – 1779). See also Gur-Arye/Weigend, op. cit. (fn. 30), pp. 63 – 89 (p. 66).

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dom spheres of potential offenders. §§ 218 et seq. of the German Criminal Code, the regulations about abortion, are an example for an unfortunate attempt to find such balance. Because neither too strong criminalisation nor a liberal regulation seemed to be adequate, the legislator decided to declare abortion in the first 12 weeks of the pregnancy as unlawful but to restrain from sanctioning it under certain conditions. This compromise is still sending mixed messages and unclear signals to the public, as can also be seen from the contradictory interpretations of this legislation during the debate on embryo protection laws in the context of IVF, cloning, stem cell research, etc. Arguments referring to the necessity of protecting the victim by criminalising actions endangering others can be found in the context of biotechnology and other modern technologies,93 but also in connection with phenomena such as stalking94 or mobbing; again, it is rarely questioned if criminal law really actually is an adequate means to strengthen the position of victims in these situations. As example for cases in which human dignity of the victim led to question possible justifications of the offender’s actions I want to draw attention to the case “Daschner”, in which the threat with torture by a police officer towards a kidnapper could not be justified by the attempt to save the life of the kidnapped child because of the dignity of the kidnapper. Similar arguments with regard to the human dignity of the victims can be found concerning the “Luftsicherheitsgesetz”; here it was discussed if the shooting of a kidnapped airplane could be justified with saving the lives of the potential victims of the terrorist attack: This was denied because of the human dignity of the passengers who would be killed by the interventionist shooting as well. Although obviously these decisions are highly debatable, it is noteworthy, firstly, that dignity of the victims did play an important role in these decisions, and, secondly, that the court rejected the right to life as a justification for infringing on human dignity. Sometimes, the need for protection is even used as argument to protect the victim against his own decisions.95 One example is the newly heated debate about criminalising assisting someone else’s suicide96 which is meant to be an addition to the laws protecting life, here obviously against the wish of the person committing the suicide – who is actually the author of the action. On a similar base of argument, one criminalises killing on request, and the violation of someone else’s body if the act is contra 93

Enders, op. cit. (fn. 29), pp. 241 – 252. Stalking is already a criminal offence in Germany, cf. § 238 StGB. On the history and legitimation of this norm, see Jörg Eisele, in: Schönke/Schröder (eds.), op. cit. (fn. 79), § 238, paras. 1 et seq. 95 For the debate, see Andreas von Hirsch/Ulfired Neumann/Kurt Seelmann, (eds.), Paternalismus im Strafrecht – Die Kriminalisierung von selbstschädigendem Verhalten, 2010; and Bijan Fateh-Moghadam/Stephan Sellmaier/Wilhelm Vossenkuhl (eds.), Grenzen des Paternalismus, 2010. 96 For an overview of the debate see, e. g., Harald Schliemann, Strafbarkeit der Förderung der Selbsttötung, Zeitschrift für Rechtspolitik 2013, pp. 51 – 54 with further references. 94

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bonos mores.97 But, because paternalistic arguments conflict with the victim’s dignity, at least according to strong opinions on the interpretation of Art. 1 (1) GG these references are regarded as insufficient to legitimise the usage of criminal law.98 3. Society – Dignity of Humanity and the Foundations of Basic Rights The implausibility of paternalistic arguments against the background of a constitutional system based on the autonomy and agency of its citizens, according to Art. 1 (1) GG has led to references to society in these contexts. Thus, the prohibition of cloning or other biotechnological progresses is, sometimes, not reasoned with dignity or rights of individuals but of society as a whole. According to these opinions, cloning violates the “dignity of humanity”99 or prenatal diagnosis might lead to a slippery slope100 and destabilise the normative base of society and thereby the basic rights of its members. The functionality of normative regimes, such as the constitution, is based on general trust in its stability. Nevertheless, criminalising specific actions that in the eye of parts of the society might endanger stability in future is not a plausible way to ensure the general acceptance of the normative regime. The same is true for justifying criminal laws with the need to protect the dignity of humanity. A metaphysically neutral interpretation of this concept is almost unimaginable101, and forcing one’s own moral understanding of specific actions onto other citizens – especially by criminal law – is questionable, if one does understand human dignity and basic rights first and foremost in a liberal way. Even in a more social understanding of dignity and rights, from a relational perspective,102 these normative concepts should not be interpreted in a way that only the morality of some is represented, but in a way that protects autonomy and freedom spheres as far as possible. From a German perspective, one has to state again that safety – and this includes the stability of moral values and social taboos – seems to have become more important recently, thus criminal laws are used more often to protect social interests in a way that exceeds criminalising the violations of general interests such as the functioning of the market or the legal system. It is also notewor97

This conduct incurs criminal liability under § 216 and §§ 223, 228 StGB. John Kleinig, Paternalismus und Menschenwürde, in: Hirsch/Neumann/Seelmann, (eds.), op. cit (fn. 95), pp. 145 – 173. 99 Enders, op. cit. (fn. 29), pp. 241 – 252 (pp. 242 and 244); for the debate see also Birnbacher, in: Gethmann-Siefert/Huster (eds.), op. cit. (fn. 26), pp. 10 – 37 (pp. 26 et seq.); Joerden, in: Byrd et al., op. cit. (fn. 8), pp. 79 – 90 (pp. 86 et seq.). 100 Cf. Friedhelm Hufen, Individuelle Rechte und die Zulassung der PID, in: GethmannSiefert/Huster (eds.), op. cit. (fn 26), pp. 92 – 114 (pp. 111 et seq.). 101 Bernhard Kohl, Menschenwürde: Relativierung oder notwendiger Wandel, 2007, p. 24 with further references. 102 Cf. Hasso Hofmann, Die versprochene Menschenwürde, Archiv des öffentlichen Rechts 118, 1993, pp. 353 – 377 (pp. 364 et seq.). 98

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thy that the Church, especially the Catholic Church, does seem to have a strong political lobby103; its influence on politics sometimes seems rather disproportionate to its current relevance in society. The more social, relational interpretations of dignity and basic rights reflected therein might not be problematic per se, but it is alien to the liberal German legal system at the moment, it carries the danger to overemphasise the moral values of the majority or powerful groups and thus should be analysed cautiously.

V. Conclusion Human Dignity has been the base of the guilt principle of German Criminal Law until today. At the moment, criminal law – and every other area of law – has to deal with fundamental shifts in society. Modern risk society and its unpredictable technological development, the terroristic attacks of the last decades and the economic crises have led to growing feelings of threat and uncontrollability of the surroundings. These feelings are met by the state with increasing focus on safety, at least laws that appear to be directed towards safety. This leads to questions about the individualistic, liberal orientation of the constitution, on the autonomous interpretation of human dignity, on the freedom spheres direction of basic rights. As discussed above, dignity and basic rights are already interpreted in a more relational, social way and imply obligations on the State. Regarding criminal law, it is necessary to include the human dignity of the victim as well as the social relations and situations in which offender and victim interact. This reflects the importance of basic rights of all parties involved better than focussing only on the offender‘s dignity. Still, one has to be cautious that one does not overemphasise safety of potential victims and society but still regards criminal law as freedom oriented. Thus, the challenge for German criminal law is to find the right balance between human dignity and basic rights of all parties involved. Then one can speak of a modern German perspective in the light of its important traditions, and still see human dignity and basic rights as the basis of criminal law, but in a more realistic sense.

103 Johannes Keppeler, Die Einflussnahme der katholischen Kirche auf den deutschen Staat seit 1949, 2007.

Human Dignity and the Prison System By Rachela Er’el and Doron Shultziner

I. Introduction Liberty is a fundamental principle of liberal democracy. It is also a basic principle of the human rights regime that all countries, large or small, must respect. People who are suspected of breaking the laws of society or hurting fellow citizens are often detained, and those who are convicted are normally held accountable for their actions in various ways. Many of them are sent to prisons which are physical confinement institutions that take total control over their lives: their food, health, shelter, beds, contact (or lack thereof) with the world, as well as their basic needs such as sleep, physical activity, sex, family contact and other forms of social contact. Prisons are “total institutions” which, in addition to restricting an individual’s liberty, have the potential to destroy the person’s self-identity, self-esteem, social and cultural identity, and social and economic status.1 Prisons do much more than restrict a prisoner’s liberty, which is the punishment he or she received for the crime committed. The nature of prisons as total institutions and their potential for harming the individuals within them is well known. The socialization process in prisons, which Clemmer2 characterized and termed as “prisonization”, is often accompanied by the “pains of imprisonment”3 and by meaningful “imprisonment injuries”,4 which are not considered in the prisoner’s sentence, and are not the purpose of this punishment.5

1 Erving Goffman, Asylums: Essay on the social situtations of mental patients and other inmates (1961). 2 Donald Clemmer, The Prison Community, 2nd ed. (1958). 3 Gresham M. Sykes, Society of Captives (1958). By the phrase ‘pains of imprisonment’, Sykes refers to objective and subjective deprivations (physical and psychological pains) such as the prevention of liberty, prevention of basic possessions and services, prevention of sexual activity, lack of autonomy, and lack of personal safely. See also Hans Toch, Mosaic of Despair: Human breakdowns in prison, Revised Edition, American Psychological Association (1992). 4 According to Ili Goldberg, Addiction, adjustment to prison and recidivism among prisoners in Israel. National Defense College, Research Center (2013), p. 20: “relative to the general population, prisoners are characterized by higher percentage of deviant behaviors in the area of mental health such as suicide, emotional and physical problems, self-injuries, a higher level of stress, sleeping problems, headaches, fear and nervous breakdown”.

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In fact, it should be recalled that inflicting harm on prisoners was once a purpose of incarceration. Aside from the rationale of protecting society from people who were deemed too dangerous to be part of it, prisoners were supposed to suffer. First, they were punished by being confined and separated from society and sent far away from its centers. The second punishment was to be found in the conditions and practices they were subjected to while in prison. England and France, for example, exiled their convicts to penal colonies overseas. Russia sent its prisoners to the Gulag (forced labor camps). The United States built many prisons in the wilderness and in isolated parts of the land or on islands in the sea, preventing prisoner contact with society.6 For many prisoners worldwide, the time in prison was accompanied by hard labor and unsanitary conditions. More importantly, society did not conceive of prisoners as normal citizens or citizens at all. Once in prison, the person was deliberately degraded and humiliated with the goal of breaking the individual’s spirit and destroying his or her dignity, with special initiation rites or “welcoming ceremonies” that emphasized the person’s loss of self-control, self-esteem, and self-reliance. As Singer puts it, “[t]he process of dehumanization and degradation does not, of course, end with the introduction into the institution. Every day, in every way, the prison reinforces the inmate’s image of himself as that of something less than a human”.7 Liberal democracies have come a long way in their approach to the purposes of punishment and the practices of detention and imprisonment. Nowadays deliberate humiliation is illegal in prisons. A declared central purpose of imprisonment in both national and international law is rehabilitation8 and prisoners are treated more humanely than ever before. The prevalent philosophy is that prisoners remain citizens whose liberty is restricted and once they have served their time in prison they should return rehabilitated to society. As Ward and Brown note, “[a]t the end of the day, most 5 For a discussion about the difference between the “purpose of imprisonment” and “the goals of punishment” see: Rachela Er’el/Leslie Sebba, One step forward, doubled beck? About the problems of Solitary Confinement in the Twenty One Century., Alley Misphat’ Law Journal 11 (2014) [in Hebrew]. 6 Richard G. Singer, Privacy, Autonomy, and Dignity in the Prison: A Preliminary Inquiry Concerning Constitutional Aspects of the Degradation Process in our Prisons, Buffalo Law Review 21 (1972), pp. 705 – 706. 7 Ibid., p. 670. 8 “The penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their reformation and social rehabilitation”, International Covenant on Civil and Political Rights [henceforth ICCPR for short], Section 10.3, 1966. See also Nigel Rodley/Matt Pollard, The Treatment of Prisoners under International Law, 3rd ed. (2009), p. 8. See also: “the penitentiary system shall comprise treatment of prisoners the essential aim of which shall be their social rehabilitation’, which can be seen as an overarching requirement according to which the treatment of all sentenced prisoners and the prison conditions to facilitate it should be judged” (Nowak, 2013) cited by Dirk van Zyl Smit, Punishment and Human Rights, in: Jonathan Simon/Richard Sparks (eds.), The SAGE Handbook of Punishment and Society (2013), p. 397.

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offenders have more in common with us than not, and like the rest of humanity have needs to be loved, valued, to function competently, and to be part of a community”.9 Nevertheless, the previous philosophy and some of its practices remain. Prisoners are often seen as less than human and when citizens think of prisons and prisoners, they often think of the worst kind of people who committed vicious crimes like murder or rape, even though they are only a minority among the entire prison population.10 Prisoners are seen as illegitimate people who can demand little or no protection from the society and the state. Prisoners do not have political lobbies or political representation (in some countries they are disenfranchised) and their conditions are often subjected to populist political campaigns of “going tough on crime” and insuring that prisons do not become “too comfortable”. There is namely the public perception that prisoners are supposed to suffer. The conditions in many prisons make rehabilitation very difficult and the rights of prisoners are often seen not as rights but as benefits granted by prison authorities as a means of control. In Israel, for example, prisoners are supposed to give a urine sample each day in front of prison wardens who watch the prisoners as they urinate into a cup.11 Prison wardens have the discretion and authority to forcefully restrain prisoners onto beds for up to 96 hours with steel handcuffs (on both hands and legs).12 Prisoners who need or want to appear before a judge can spend days (up to 5 days) in transport in a claustrophobic one-meter cubical until they get to the court, and then endure the same con-

9

Tony Ward/Mark Brown, The good lives model and conceptual issues in offender rehabilitation, Psychology, Crime and Law 10 (3) (2004), p. 244. 10 According to Abraham Tennenbaum, The Abolitionist Approach: is it the time to abolish the Criminal Punishment?, ‘Shaari Mishpat’ Law Journal 3 (2011): the group of psychopath murderers, mentally violent deranged people, and uncontrollable sex offenders are a tiny group of about 5 % of the total prison population. Because of this notable group, the public fails to see that the majority of prisoners do not have to be imprisoned and that society has no interest in their incarceration. The Israeli prison authorities do not publish statistics about the number of murderers and rapists who are imprisoned. According to the statistics that are available, the percentage of prisoners who are sentenced for a “prime offense” (e. g. were directly or indirectly involved in murder or attempted murder) is 15 % out of a total population of 20,245. In addition 11.6 % are sentences for “sex offenses” though the category goes quite beyond rape. There are currently only 362 prisoners who are serving life sentences (given for murder) who are 1.7 % of the total prison population (no similar information exists for rapists). As of 2014, the rate of murders in Israel is 2.4 people for every 100,000 people, the same as OECD countries. Rape rates are 2 % lower than OECD countries. See also http://mops.gov.il/ Documents/Publications/RD/ViolenceIndex/ViolenceIndex_up2014.pdf. 11 See Section 95 (9) of the Israeli Prison Ordinance (1971). See more below. 12 See also the Ministry of Justice, “Separated from their Rights”, the Public Defense Department Report on solitary confinement, September 2012. The report described (on page 21) a prisoner in confinement who suffered a serious psychiatric condition and whose hands and legs were handcuffed to a bed for five months continuously. When the wardens tried to lift him from his bed they found that the handcuffs cannot be removed due to rust. See: http:// index.justice.gov.il/Units/SanegoriaZiborit/DohotRishmi/Pages/DohotRishmi.aspx.

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ditions on the way back to prison.13 Prisoners who are hospitalized have one hand and one leg handcuffed during their entire time of treatment and they are accompanied by at least 4 prison guards.14 In over 3,000 prison cells the toilets are holes in floor and the shower is placed above them, a situation that causes hygiene problems.15 A prisoner can be held in solitary confinement for the entire duration of his imprisonment.16 It is permissible to force-feed a hunger-striking prisoner.17 Prison authorities justify these practices and conditions by considerations of public safety, security or lack of resources. Yet their negative impact on the physical and psychological health of prisoners, as well as their legal justification, is undeniably real and contrasts with the modern purpose of imprisonment which is resocialization and rehabilitation. We argue that if we take the purposes of incarceration seriously, and if we truly think that the restriction of freedom is the prisoners’ punishment and not a means for further punishment, then we must admit that in reality the human dignity of prisoners is often grievously violated. We argue that the human dignity of prisoners should receive special care and protection. This approach is derived from the close similarity between the characteristics of helpless people and prisoners. Like other groups of helpless people, such as children and people in closed mental health institutions, prisoners are legally under state custody. Their most basic needs must be catered for by the state. Their future in terms of social and economic prospects, as well as their physical and psychological well-being, is completely in the hands of state authorities. We argue that this calls for the heightened protection of prisoners’ rights and sensitivity to human dignity violations. This paper proceeds as follows. In the first section we note the current legal approach toward prisoners in international legal instruments. In the second section we define what human dignity means in the context of prisoners. In the third section we discuss the current legal situation regarding prisoners’ rights and treatment in Israel. In the fourth section we discuss the approach to prisoners in Germany. Finally, we explain why prisoners should receive heightened protection for their rights and dignity, including a right to rehabilitation. 13

See Efrat Lechter’s report in Channel 2 (13. 3. 2015): http://www.mako.co.il/news-israel/ local-q1_2015/Article-7e6e02c2c541c41004.htm; see also the appeal to the Israeli prison authorities by Physicians for Human Rights – Israel, Addalla Center for the Arab Minority in Israel and the Haifa University Legal Clinic for Prisoners Rights and Rehabilitation (5. 6. 2013). http://www.adalah.org/uploads/oldfiles/Public/files/Hebrew/Legal_Advocacy/Letter-Pos ta05-06-2013.pdf. 14 See the Orders of Israel Prison Service Commissioner 04.15.01, page 5. See also the report of Addalla Center for the Arab Minority in Israel. http://www.adalah.org/uploads/oldfi les/Public/files/Hebrew/Legal_Advocacy/Letters/Pre_petition_shackling_in%20hospitals_ pray_June_2014.pdf. 15 See P.P 20122 – 07 – 11 Ben Abu v. Israeli Police and Israeli Prison Service (9. 11. 2011). See also interview with the Chief Public Defense Attorney http://www.themarker.com/mar kerweek/1.2479127. 16 Section 19 (b) of the Prison Ordinance 1971. 17 Force Feeding Law passed by the Israeli Knesset on 30. 07. 2017.

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II. Human Dignity and the Prison System in International Law Human dignity has a prominent place in international legal documents, with particular reference to prisoners and other people whose freedom has been restricted (e. g. detainees, mental health patients). The Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1975) states, “[a]ny act of torture or other cruel, inhuman or degrading treatment or punishment is an offence to human dignity and shall be condemned as a denial of the purposes of the Charter of the United Nations and as a violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights”.18 The preamble of the International Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment of Punishment (1984) opens by “[r]ecognizing that these rights derive from the inherent dignity of the human person”.19 The Human Rights Commission (HRC), which oversees the implementation of this convention, has emphasized the dignity of prisoners, stating that the rights and rules that protect them should be independent of material considerations and distinctions of any kind,20 and stressed that prisoners’ rights are nonderogable.21 There has been an increasing recognition and gradual development in international law regarding the protection of prisoners. The first principle of the Body of Principles for the Protection of all Persons under any Form of Detention or Imprisonment 18

UN General Assembly, Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 9. 12. 1975, Section 2, A/RES/3452(XXX). 19 International Convention against Torture and Other Forms of Cruel, Inhuman or Degrading Treatment of Punishment, 1984, Preamble. This sentence is identical to the ones in the preambles of the ICCPR (1966) and the International Covenant on Economic, Social and Cultural Rights (1966). Section 10.1 of the ICCPR already stipulated that “[a]ll persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person”. 20 “Treating all persons deprived of their liberty with humanity and with respect for their dignity is a fundamental and universally applicable rule. Consequently, the application of this rule, as a minimum, cannot be dependent on the material resources available in the State party. This rule must be applied without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.” 21 In those provisions of the Covenant that are not listed in article 4, paragraph 2, there are elements that in the Committee’s opinion cannot be made subject to lawful derogation under article 4. Some illustrative examples are presented below. (a) All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person. Although this right, prescribed in article 10 of the Covenant, is not separately mentioned in the list of non-derogable rights in article 4, paragraph 2, the Committee believes that here the Covenant expresses a norm of general international law not subject to derogation. This is supported by the reference to the inherent dignity of the human person in the preamble to the Covenant and by the close connection between articles 7 and 10 […]” Human Rights Commission general resolution number 29.

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(1988) emphasizes that “[a]ll persons under any form of detention or imprisonment shall be treated in a humane manner and with respect for inherent dignity of the human person”.22 The resolution also stresses that prisoners’ human rights are non-derogable.23 Moreover, the Basic Principles for the Treatment of Prisoners24 (1990) stipulates that “[a]ll prisoners shall be treated with the respect due to their inherent dignity and value as human beings” (section 1) and that “[e]xcept for those limitations that are demonstrably necessitated by the fact of incarceration, all prisoners shall retain the human rights and fundamental freedoms set out in the Universal Declaration of Human Rights” and other international covenants and protocols for which the state is a party (section 5).25 Most recently the United Nations Commission on Crime Prevention and Criminal Justice (CCPCJ) announced its Mandela Rules which herald a major revision of prisoners’ rights and the overall approach or philosophy concerning imprisonment.26 These rules are also based on the recognition of human dignity and its protection. “The rules, if fully implemented, would help turn imprisonment from a wasted time of suffering and humiliation into one used for personal development leading to release, to the benefit of society as a whole”, observed Yuval Ginbar, Legal Adviser at Amnesty International.27 The revised Standard Minimum Rules were adopted unanimously by the UN General Assembly on 17 December 2014.28

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Adopted by General Assembly resolution 43/173 of 9. 12. 1988. “There shall be no restriction upon or derogation from any of human rights of persons under any form of detention or imprisonment recognized or existing in any State pursuant to law, conventions, regulations or custom on the pretext that this Body of Principles does not recognize such rights or that it recognizes them to a lesser extent.” Section 3, ibid. 24 Adopted and proclaimed by General Assembly resolution 45/111 of 14. 12. 1990. 25 It should be remembered that countries are free to choose which international standards they adopt. “States parties are invited to indicate in their reports to what extent they are applying the relevant United Nations standards applicable to the treatment of prisoners: the Standard Minimum rules for the Treatment of Prisoners (1957), the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment (1988), the Code of Conduct for Law Enforcement Officials (1978) and the Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1982)”, General comment No. 20, Prohibition of torture, or other cruel, inhuman or degrading treatment or punishment, Forty-fourth session (1992) para. 5. 26 UN Economic and Social Council, Commission on Crime Prevention and Criminal Justice, Twenty-fourth session, Vienna, 18. – 22. 5. 2015, United Nations Standard Minimum Rules for the Treatment of Prisoners (the Mandela Rules). 27 See ‘Mandela Rules’ on prisoner treatment adopted in landmark revision of UN standards, 22. 5. 2015, at https://www.amnesty.org/latest/news/2015/05/mandela-rules-on-prisonertreatment-adopted-in-landmark-revision-of-un-standards/. 28 UN-Doc A/RES/70/175 United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), See at: http://www.ohchr.org/Documents/ProfessionalI nterest/NelsonMandelaRules.pdf. 23

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International legal documents concerning prisoners attest to the centrality of human dignity as the basic value underlying these rights and provisions. As van Zyl Smit noted, “a sophisticated body of doctrine governing prisoners’ rights has emerged as a specialized area of human rights law”.29 The ultimate purpose of this doctrine is to protect prisoners as human beings with equal dignity and worth. When considering practices and conditions of prisons we must keep this ultimate goal in mind. We must also remember that most prisoners are supposed to return to society and thus the purpose of incarceration is to rehabilitate them so that they will be capable of doing so in a way that society is not harmed. Moreover, it is clear from the conventions that human dignity is non-derogable. Namely, it should not be balanced against other rights or interests. The state must not “balance” the humiliation of prisoners with security or material considerations. Prison authorities must not pit a prisoner’s human dignity against their concerns about running a disciplined and efficient prison.30 Imprisonment does not mean that prisoners lose all their rights, let alone their dignity.31 Imprisonment itself is the punishment; imprisonment is not the means for further punishments.32 It is neither the purpose nor the legal role of prison authorities to add punishments once a prisoner is in their custody. Supplementary punishments and degrading conditions of imprisonment contradict the basic doctrine of liberal democracies under which there is no punishment unless prescribed by law.33 Therefore, imprisonment rules, conditions and practices cannot be arbitrary and they must be consistent with the rule of law. Most of the international principles referred to above may seem obvious and uncontested in theory. But as we shall demonstrate below, those basic principles are often ignored and human dignity is often forgotten or even disregarded within the prison walls.

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Van Zyl Smit, op. cit. (fn. 8), p. 406. Melvin Gutterman, The Prison Jurisprudence of Justice Thutgood Marshall, Maryland Law Review 56(1) (1997). 31 “[…] respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment” General Resolution number 21, Article 3. 32 Er‘el & Sebba, op. cit. (fn. 5), p. 582. 33 See also section 4 in Justice Procaccia opinion in H.C.J. 2245/06 Dvorin v. Israeli Prison Service (13. 6. 2006). 30

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III. What is Human Dignity in the Context of Prisons? Human dignity has multiple meanings and legal functions, depending on the context.34 However, as Rotenstreich observed, human dignity remains above all “an expression, perhaps the most prominent in the history of man’s self-reflection, of selfevaluations”.35 Shultziner and Rabinovici developed Rotenstreich’s observation that the meaning of human dignity concerns human beings’ self-evaluations or selfworth.36 People and international instruments make a close connection between self-worth and human dignity. People care deeply about their self-worth, which is a universal human need. People in all countries and cultures strive for and want to maintain positive self-evaluations of themselves. “Positive self-esteem advances optimal functioning, higher efficacy, development (self-enhancement), happiness, satisfaction with life, better performance, and persistence at tasks. Conversely, negative self-esteem has been shown to be associated with mental disorders, malfunctioning, antisocial behavior, suicidal tendencies, aggression, delinquency”.37 Accordingly, Shultziner and Rabinovici have demonstrated that a major aspect of the legal doctrine of human dignity is protection against humiliation and injuries to self-worth. The close nexus between human dignity and self-worth (or self-respect) has implications for the law and public policy in general, as well as for prisons in particular. Associate Justice Marshall of the US Supreme Court expressed this connection or doctrine in Procunier v. Martinez:38 When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions; his yearning for self-respect does not end; nor is his quest for selfrealization concluded. If anything, the needs for identity and self-respect are more compelling in the dehumanizing prison environment.39

Prisons as total institutions are prone to foster negative self-esteem by the very nature of conviction and incarceration. However, instead of minimizing such effects, the laws and rules governing prisons often promote “law-related psychological dysfunction”.40 These injuries to self-worth and dysfunction can result from prisons’ physical conditions, the rules and regulations affecting the lives of inmates, the so34

Doron Shultziner, Human Dignity – Functions and Meanings, Global Jurist Topics 3(3) (2003), pp. 1 – 21. 35 Nathan Rotenstreich, Man and his dignity (1983), p. 9. 36 Doron Shultziner/Itai Rabinovici, Human Dignity, Self-Worth, and Humiliation: A Comparative Legal-Psychological Approach, Psychology Public Policy and Law 18(1) (2012), pp. 105 – 143. 37 Shultziner/Rabinovici, op. cit. (fn. 36), p. 109. 38 Procunier v. Martinez (1974). 39 Procunier v. Martinez, 416 U.S. 396, 428 (1974) cited in Gutterman, op. cit. (fn. 30), p. 150. 40 Bruce J. Winick, The Side-Effects of Incompetency Labeling and the Implications for Mental-Health Law, Psychology Public Policy and Law 1(1) (1995), pp. 6 – 42.

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cial-psychological relations between prison wardens and prisoners, between prisoners themselves, and from the internalization of inferiority labels by the prisoners.41 Unsanitary conditions and facilities can cause disease, mental dysfunction and even death. Crowding in prisons causes stress and violence. Arbitrary intrusion into inmate’s basic privacy, such as watching the prisoner giving a urine sample on a daily basis, can cause humiliation and depression. Ongoing abuse of prisoners, intentional or unintentional, can cause internalization of inferiority labels such as incompetence or severe depression-related problems. The overall destructive potential of prisons over prisoners is not an unavoidable outcome of such total institutions.42 The idea of human dignity is to protect human beings from suffering and to help them free themselves from situations of misery. The minimal or “thin meaning”43 of human dignity is to protect prisoners from humiliation, intentional or unintentional. Humiliation cannot be justified inside or outside of prison and it is non-derogable and cannot be balanced with other interests. Humiliation is an illegal and unconstitutional punishment; it is not a legitimate means to break prisoners’ spirit and to control them.44 There are shared characteristics of humiliation: diminishing and lowering a person physically, psychologically, symbolically, publicly, individually, or collectively.45 In the context of prisons, the protection of human dignity can be operatively characterized by several general principles that focus on well-being, instead of excessive domination that amounts to humiliation and degradation, unhealthy confinement conditions, unnecessary invasions into privacy, and unnecessary dominance and invasion into personal standing issues. Accordingly, assaults on human dignity in prisons include the following: • Rules and practices that are guided by considerations of subordination and humiliation of prisoners rather than their well-being. • Rules and practices that are guided by purposeful domination or control beyond what is needed, ill treatment, cruelness, inhuman or excessive forced control, and injuries to the body and mind.46 41 Ben Crew/Jason Warr/Peter Bennett/Alan Smith, The emotional geography of prison life, Theoretical Criminology 18(1) (2014), p. 57. 42 See also Shlomo Giora Shoham/Gavriel Shavitt/Gabriel Cavaglion/Tomer Einat, Crimes and Punishment: An Introduction to penology and Criminal Justice, [in Hebrew] (2009), p. 227; for a similar argument in the context of mental health institutions. 43 Shultziner, op. cit. (fn. 34). 44 See also Gutterman, op. cit. (fn. 30), pp. 180 – 183. 45 Shultziner/Rabinovici, op. cit. (fn. 36), p. 111. 46 See also, “Liberty of person concerns freedom from confinement of the body, not a general freedom of action. Security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity […] Article 9 guarantees those rights to everyone”, General Comment No. 35, Liberty and Security of Person (Article 9), CCPR/C/GC/35 16. 12. 2014, para. 3.

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• Harmful conditions of imprisonment such as unsanitary, dangerous, crowded or other unhealthy custody conditions. • Invasion into prisoners’ privacy beyond what is needed for safety or for purposes of control and domination. • Prison domination of individual’s personal standing issues such as marriage, divorce, as well as prevention of sexual contact with the prisoner’s spouse or the outside world for purposes of control or subordination. This approach is consistent with the international doctrine that the punishment of prisoners is their imprisonment period and that their time in prison should be spent in rehabilitation, not in inflicting additional punishments or suffering on them. Society has an interest in rehabilitating prisoners because most of them return to society. It is also the state’s duty under national and international laws to take care of people who are in its total custody.47 This approach is consistent with the idea that human dignity is non-derogable and should not be balanced with considerations of utility such as running a disciplined prison, deterrence and most so-called security considerations. This protection-from-humiliation approach is very close to that of Penal Reform International, the most effective non-governmental organization and global network that advances national, regional and international reforms in penal law.48

IV. The Legal Status of Prisoners’ Rights in Israel That notion that prisoners do not lose their dignity is not new in Israel. In 1979 the Supreme Court of Israel struck down the practice of conducting enemas without con47

As Coyle puts it, “When a state deprives a person of their liberty, it incurs a duty of care to ensure that the dignity of that person is respected. States must also ensure that prisons are safe and secure for detainees, staff, visitors and the outside community. These two obligations are not contradictory, but go hand in hand, as security can be best ensured in a well ordered and justly administered system, which treats prisoners with humanity and fairness”, Andrew Coyle, A Human Rights Approach to Prison Management: Handbook for Prison Staff (International Centre for Prison Studies (2009)), p. 58. 48 We however do not think that dignity should be defined as a human right, but as a justification to all rights. See, “While its most fundamental component is the absolute prohibition of torture, the right to dignity includes the provision of adequate material conditions, including sufficient food, water and access to healthcare. De-humanizing or humiliating prison routines can also infringe on the dignity of prisoners, such as particularly uncomfortable prison uniforms. […] The right to dignity also includes operating fair and just rules and procedures, which do not discriminate, and promoting respectful relations between staff and detainees. Attitudes, behaviours, public exposure or abusive language can equally infringe experience as humiliating or debasing. The responsibility of the state goes beyond preventing active abuse against prisoners: it includes refraining from humiliating routines that infringe on human dignity and serve no security or other purpose, and ensuring that the suffering involved in places of detention does not exceed the level inherent in the deprivation of liberty”; Andrea Huber/Barbara Bernat/Rob Allen/Edouard Delaplace, Balancing Security and Dignity in Prisons: A Framework for Preventive Monitoring, Penal Reform International (2013), p. 3.

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sent as a means to discover concealed drugs in prisoners returning to prison after leave. The newly-nominated Justice Barak wrote that “the right to physical integrity and human dignity is also the right of the detainee and the prisoner. The prison walls do not separate between the detainee and human dignity.”49 In 1984, Justice Elon reasoned that prisoners have the right to vote in national elections because “the rights and dignity of the prisoner as a human being are guarded and maintained in prison” and they should be upheld according to the Jewish Law (Halakah) principle that the prisoner is “your brother and your friend.”50 In 1994, the Supreme Court advanced the free speech of prisoners by allowing a prisoner to write newspaper columns on life in prison as a protection of their right to human dignity.51 In 2002, the Supreme Court annulled a regulation that authorized prison authorities to prevent a meeting between a prisoner and his or her lawyer.52 In 2004, the Supreme Court stipulated that prison authorities must provide individual beds for every prisoner and that deviation from this rule could only be granted in rare situations of clear and imminent danger.53 In 2009, the Supreme Court annulled a law establishing a private prison in Israel reasoning that the principle of human dignity does not allow treating prisoners as a means for a private company to make profit.54 Considerations and arguments on the basis of human dignity also guided the Supreme Court in determining that the assassin of Prime Minister Yitzhak Rabin had a right to have children, allowing him to pass his sperm to his wife outside the prison for artificial insemination purposes,55 as well as to annul two laws that allowed the incarceration of illegal refugees in special detention facilities.56 These rulings were indeed important declaratory rulings for the improvement of prisoners’ rights and conditions. Yet the situation of prisons in Israel remains highly problematic and in many respects it is backwards in relation to other countries and to 49 Section 5 to Justice Barak’s decision in H.C.J. 355/79 Arye Ben-Nenyamin Katalan and others v. Israel Prison Service and others. Barak echoes Justice Marshall quote above from Procunier v. Martinez (1974). 50 Section 4 to Justice Elon’s ruling in H.C.J. 337/84 Rami Hokma and others v. Minister of Interior and others. 51 P.P.A 4463/94 Avi Hanania Golan v. Israeli Prison Service. However, the decision remained declaratory because prison authorities prevented the publication by using other administrative and regulatory restrictions. 52 H.C.J. 1437/02 The Association for Civil Rights in Israel v. The Minister of Public Security. 53 H.C.J. 4634/04 Physicians for Human Rights v. The Minister of Public Security. 54 “When the state transfers power to manage a prison, with the invasive powers that go with it, to a private profit-making corporation, it violates the human dignity of the inmates of that prison. Since the public purposes that give imprisonment legitimacy are undermined and the inmates become a means for the private corporation to make profits” H.C.J. 2605/05 The Academic Center for Law and Business v. Minister of Finance. 55 H.C.J. 2245/06 M.K. Neta Dobrin v. The Israel Prison Service. 56 H.C.J 7146/12 Adamand Others v. The Knesset and Others (2013); H.C.J. 7385/13 Eitan – Israeli Immigration Policy Center and Others v. The Israeli Government and Others (2014).

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the requirements set out in international covenants concerning prisoners.57 As Sebba and Er’el58 argue, the backwardness of the Israeli prison system and the remaining assaults on human dignity are due to the limited status of international covenants in Israeli law and to the legal immunity of the prison authority law in respect of Basic Law: Human Dignity and Liberty of 1992. In terms of international law, the State of Israel has signed the seven main United Nations’ covenants on human rights.59 The official position of Israeli officials before international tribunals and the world more generally is that Israel respects and protects prisoners’ human rights, including overview and accountability mechanisms over all detention facilities according to the standards of liberal democratic countries.60 However, those international covenants are not part of Israeli law as long as they have not been implemented by the legislature into domestic law.61 This essentially means that a prisoner in Israel cannot base claims on international standards and covenants. In terms of domestic constitutional law, Israel experienced a “constitutional revolution” in 1992 with the enactment of Basic Law: Human Dignity and Liberty, and Basic Law: Freedom of Occupation. However, the legal applicability of the former to the previously enacted law on prisons has been limited. ‘Basic Law: Human Dignity and Liberty’ does not enable a direct reevaluation or annulment of the Prison Ordinance of [New Version] 5732 – 1971 [henceforth ‘Prison Ordinance’] because this basic law is only applicable to laws enacted after 1992. It therefore has no retrospective effect.62 The Supreme Court interpreted this limitation to mean that the court can57 Our analysis is quite at odd with the position of the Israeli Ministry of Justice (2014) that recently issued a Compendium of Sources – Human Right and the Israeli Prison Service, February 2014. As the following discussion will show, we find both the legal situation as well as the rules and practices detrimental to human dignity. 58 Sebba & Er’el, Imprisonment in Freestyle: The Implementation of international Human rights Norms in Israeli Prison System, ‘Hukim’ – Law Journal on Legislation, [in Hebrew] (2017). 59 These include: International Convention on the Elimination of All Forms of Racial Discrimination, 1965; International Covenant on Civil and Political Rights, 1966; International Covenant on Economic, Social and Cultural Rights, 1966; Convention on the Elimination of Discrimination Against Women, 1979; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984; Convention on the Rights of the Child, 1989; Convention on the Rights of Persons with Disabilities, 2006. 60 Israeli Ministry of Justice, Compendium of Sources – Human Right and the Israeli Prison Service 2014, at http://index.justice.gov.il/Units/InternationalAgreements/International Relations/Pages/AnswersInquiries.aspx. 61 As former President of the Supreme Court Shamgar wrote, “the international law rules are not automatically implanted and become part of the law in Israel, as long as they have not been adopted or merged by way of legislation and have become part of the law that applies in Israel through the instructions of the written letter of the law […]”. H.C.J. 69/81 Abu Ita v. Commander of Judea and Samaria, P.D., Vol 37(2) 197, 234 (1983). 62 Section 10 of ‘Basic Law: Human Dignity and Liberty’ says, “This Basic Law cannot undermine a law that existed before the enactment of this basic law”.

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not easily annul a law that existed prior to the Basic Laws of 1992. In many ways this characterizes the courts’ approach regarding many problematic articles of the Prison Ordinance which conflict with human dignity.63 This creates a legal situation whereby the development of human rights protections by the courts ignores prisoners, and the Prison Ordinance is shielded from human rights protections contained in the Basic Law. The Prison Ordinance is an outdated legal relic from the time of the Palestine Mandate that was translated from English into Hebrew. As such, and despite its many amendments over the years, the law does not reflect developments in the area of prisoners’ rights in either national or international law. As Sebba and Er’el (2017) have described it, this law is based on a “rights as benefits” doctrine that contradicts the commonly held international approach of prisoners’ rights. Similarly, the Prison Regulations, 5738 – 1978 that give concrete expression to the 1971 law are also shielded from the basic law on human dignity. Even though the Prison Ordinance was amended in 2012 to include stipulations for decent prison conditions,64 education, leisure, and rehabilitation of prisoners,65 the “rights as benefits” doctrine remains intact. The provision of the rights enumerated in the law remains predominantly under prison administrative discretion, and under the limitations of such discretion, and are not subject to the limitation clauses of the Basic Law on Human Dignity and Liberty.66 In general, Israel lacks an advanced legal system for imprisonment. The laws are outdated and the legislature shows little interest in this topic. The Supreme Court closed its gates to prisoners in the 1980s and appeals are dealt with in the district courts.67 The relevant legal rules are those of administrative law, and the predominant considerations are whether prison managers have the legal authority to use the administrative means they employ and whether they reasonably considered all aspects of the question. In a crucial number of cases the District Courts answer these questions in the affirmative and do not intervene in the running of prisons. This led to a de-facto hands-off doctrine, similar to the one prevalent in the United States.68 Justice Zamir 63 See P.P.A 6956/09 Maher Yunes and other v. Israeli Prison Service (given on 7. 10. 2010). In another petition (P.P.A 1475/10 Moshe Cohen v. General Attorney) involving children of prisoners who asked to be allowed to spend with them 15 minutes in physical contact, Justice Rubinstein noted that the right way to address this issue is by raising it with the Prison Commissioner and not with the courts that cannot give constitutional relief. 64 Article 11b of the Prison Ordinance states that “a prison will be kept in appropriate conditions that shall not injure his health and dignity”. 65 See sections 11c, 11d of the Prison Ordinance. 66 Sebba/Er’el, op. cit. (fn. 58). 67 Justice David Cheshin and Justice David Rosen, ‘report of the commission to the investigation of the appropriate measures for adjudicating prisoners’ appeals’, formed by Justice Dorit Beinish, President of the Israeli Supreme Court, September 2011, pp. 4 – 5, http://elyon1. court.gov.il/heb/haba/Prisoners%20Petitions.pdf. 68 Er’el/Sebba, op. cit. (fn. 5), p. 563.

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has summarized this approach which essentially subjugates the human rights of prisoners to the total discretion of prison managers: Managing prisons is different than managing a regular administrative unit […] Due to the type of population in prisons, and the needs and problems that are involved in keeping total control over the daily lives of prisoners, the Israel Prison Service Commissioner is necessarily granted a relatively wide scope of reasonableness and proportionality […] Inside this scope the Commissioner should be allowed to operate the prisoners, while taking into account the rights of prisoners, according to this discretion. 69

V. The Prison Authorities Regulations: Rules, Practices and Human Dignity The Israeli prison system is operated by the Prison Authorities – known in Hebrew as the Israeli Prisons Service – which is under the authority of the Ministry of Public Security. As of April 2015, and according to the prison authorities’ website, there are 20,245 people held in 33 detention facilities: 12,232 for criminal offenses (60.4 %), 5,796 for security offenses (28.6 %), and 2,217 non-Israeli citizens who illegally crossed the border (11 %).70 The formal prison capacity is 18,026 people.71 According to the International Center for Prison Studies, the imprisonment rate in Israel is 250 prisoners for every 100,000 people, and there has been a trend towards prison population growth since 2006.72 The stated purpose of imprisonment, according to the Israeli Prison Service’s official website, is “keeping prisoners under safe and appropriate custody, while preserving their dignity, providing their basic needs and allowing corrective measures to all prisoners suitable to correction, in order to help them get back into society successfully once released”.73 Moreover, article 11b of the Prison Ordinance, entitled ‘fitting imprisonment conditions’, states that the “prisoner shall be kept in befitting conditions that would not cause injury to his or her health and dignity”. In what follows we aim to demonstrate that the actual practices that exist in Israeli prisons, sup69

Justice Zamir in P.P.A 6561/97 State of Israel v. Mendelson. See http://ips.gov.il/Web/He/Research/Statistics/Prisoners/Default.aspx. There are 170 women prisoners and 150 who are juveniles. 71 The numbers are true as of 18. 11. 2014. The average living space in the facilities of the Israeli prison authorities is 3.16 sqm. per prisoner including toilets and shower space inside the cell. 72 See http://www.prisonstudies.org/country/israel however, the Israeli prison authorities report lower rates of 149 prisoners for every 100,000 people. The number of detainees has doubled between 2000 – 2015 due to the transfer of responsibility over security detainees from the Israeli Defense Force and detainees of the Israel Police. See statistics in http://ips.gov.il/ Web/He/Research/Statistics/Prisoners/Default.aspx. 73 Israel Prison Service website (accessed on 10. 7. 2015) http://www.ips.gov.il/Web/En/ About/Default.aspx. 70

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ported by the letter of the law, violate human dignity under the basic principles outlined above. Rules and practices that are guided by considerations of subordination and humiliation of prisoners rather than their well-being. Despite the stated purpose of the law of rehabilitating prisoners, which emphasizes the protection of prisoners’ human dignity, there are legal rules and common practices that conflict with these goals. Most broadly, the administration and provision of rights in Israeli prisons is guided by the ‘benefits doctrine’74 which turns them into a means of control. According to Section 19 (Discipline) of the Prison Ordinance entitled ‘Benefits’, “The Prison Director may, according to the rules of the commissioner, grant all prisoners or a groups of prisoners or a particular prisoner benefits that are beyond the rights which they are entitled to by law such as: visits, letters, vacations, purchasing food, listening to media broadcasts or watching them. These benefits are conditioned on the good behavior of the particular prisoner or the type of prison or the prison section in which the prisoner is kept or the prison condition.” This section essentially deprives prisoners of their rights, not solely due to negative or harmful behavior, but due to very broad considerations. The scope of discretion can encompass almost every reason that a prison manager sees fit. Put simply, the provision of basic means of living and rights are granted or withheld according to discretion of prison managers. For example, in terms of accommodation, “the commissioner, with the confirmation of the minister, may instruct giving shelter and safe custody in a temporary prison to prisoners who, according to the commissioner’s opinion, should not be accommodated in comfortable accommodations in an existing prison or that due to a contagious disease or some other reason should be accommodated in a temporary prison” (section 70 of the Prison Ordinance). Such a clause in a statute affords unreasonable power and discretion to the prison managers. More importantly, it enables prison managers to use accommodation facilities not as a means of rehabilitation to improve prisoners’ sense of well-being but rather as means of control by making the right to decent prison accommodation into a benefit that the prison authorities may give or withhold based on considerations of subordination, undefined public safety or due to financial constraints. The Prison Ordinance also stipulates that “it is not obligatory to make the prison service regulations public, and they shall be published in a way that the commissioner decides” (section 80b (a)). That means that prisoners do not have an explicit right to have access to the system of regulations that regulate every aspect of their lives, from basic needs to contact with the outside world. This regulation serves no purpose other than as a means of control and it is the exact opposite of what we would expect if prisoners’ welfare and well-being were the prime goal of incarceration.

74

Sebba/Er’el, op. cit. (fn. 58).

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According to the Prison Regulations, 5738 – 1978 [henceforth ‘Regulations’ for short], “a prison manager is authorized to instruct on applying restraint measures that the commissioner has set against a prisoner in every case that this is necessary and to prevent him or her from going out of control, harming himself or others, or causing damage to property” (Regulation 22). The means of restraint that the commissioner has at his disposal are detailed in the Commissioner’s Regulations75 and they include, among other means, restraining a prisoner to his or her bed with steel handcuffs on both hands and legs for an unlimited period of time. The Regulations also stipulate that a prisoner who goes out of the prison on work release (rehabilitation work) shall not socialize with “people of doubtful character” and shall give a report on his income and expenses whenever the prison manager demands, and the prisoner must deposit his income in the prison office (Regulation 54). Similarly, the Regulations state that expenses for a prisoner’s rehabilitation work outside prison, such as travel, food and clothing, shall be calculated as a debt that the prisoner owes to the prison (Regulation 59). The Supreme Court has rejected appeals in which prisoners had lodged to get the same minimum salary as others would receive in the regular labor market. Similarly the court rejected applying the same labor laws to prisoners as are generally applied to workers. More recently the state has limited the number and length of family visits for Palestinian security inmates, as well as denying them the opportunity to study for a bachelor’s degree at the Israeli Open University. These prisoners’ appeals were denied by the Supreme Court.76 These regulations and practices are clearly not guided by considerations of the prisoners’ well-being and rehabilitation. Rather, they consist of practices that remind prisoners of their subordination and total loss of control over their lives. In addition they generate a sense of humiliation and loss of self-esteem which are contrary to the purpose of rehabilitation and general well-being. Rules and practices that are guided by purposeful domination or control, ill treatment, excessive forced control and injuries to the body and mind. The Regulations include provisions that reflect repressive means whose purpose is pure control and domination of prisoners rather than their rehabilitation. They are excessive means of domination and control that contradict the purpose of the prison service and they can cause injuries to prisoners’ bodies and minds. A number of regulations demonstrate how these rules and practices go beyond what is needed for the safety of prisoners and their rehabilitation. Regulation 4 states that “every prisoner must be medically checked, wash his or her body, and receive a vaccination” and “should the prisoner refuse to one of those, it is allowed to use the necessary degree of force to execute it” (emphasis added). Similarly, regulation 10b 75

Commissioner’s Regulations (number 04.15.00). On minimal labor wage see H.C.J. 1163/98 Ofer Sadot and Others v. Israeli Prison Service; on family visits for Palestinian prisoners held for security offenses see P.P.A 6956/09 Mahar Yunes v. Israel Prison Service; on the prevention of learning for a B.A. in Israeli prisons see Ad. H. H.C.J. 204/13 Saeed Saleh v. Israel Prison Service, 2015. 76

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states that “should a doctor determine that the health or life of a prisoner is in danger, and the prisoner refuses to receive the doctor’s treatment, it [the prison] is allowed to use the necessary degree of force to execute the doctor’s orders” (emphasis added). Needless to say that these orders are violations of modern medical ethics whereby a person has autonomy over one’s body, and the body is shielded from medical treatment without prior consent.77 It is equally clear that this approach has been made lawful in the context of Israeli prisons because a prisoner loses autonomy over his or her body. This excessive use of force over a prisoner’s body has direct implications for the individual’s physical and psychological well-being. People who lose control over their bodies in such a way, and are subjected to forced intervention in such intimate aspects of their body, may lose their sense of self-control and autonomy, lose their self-esteem, and may suffer various negative psychological (and also physical) injuries while being coerced into treatments and practices of this sort. In this context it should also be noted that the Prison Ordinance allows two practices which have been recognized in international law as amounting to torture. The first is the practice of holding a prisoner in solitary confinement for 24 hours a day for an unlimited period of time, causing deprivation of the physical senses, as well as psychological and social needs. A prisoner in solitary confinement has no access to rehabilitation, education, employment, religious and other services.78 In Israel there are prisoners who are kept in solitary confinement for many years while the practice is disguised by renaming the sections of the regulations. Yet the conditions in those re-named sections are essentially those of solitary confinement.79 The second practice is force feeding of prisoners who are on hunger strike. Recently, the Israeli Knesset has passed amendment 48 to the Prison Ordinance that allows force-feeding of a prisoner who is hunger striking, allowing the use of physical force. The doctors and the prison staff who are performing the act are granted legal immunity against civil claims for damages.80 The excessive means of control, for the sake of control and not rehabilitation, is also apparent from regulations concerning discipline and punishments within prisons. According to section 58 of the Prison Ordinance, disciplinary punishment is very wide and it does not preclude criminal prosecution for the same act in parallel 77 Yechiel Micheal Barilan, Human Dignity, Human Rights, and Responsibility: The New Language of Global Bioethics and Biolaw, Basic bioethics (2012). 78 See Section 19 of the Prison Ordinance; Ordinance of the IPS Commissioner 4. 3. 2000. See also Er’el/Sebba, op. cit. (fn. 5). 79 Some sections in the Israeli prisons are defined as “secured sections” and in this way prisoners are kept in conditions of solitary confinement and without judicial overview. See also the report of the Ministry of Justice, the Public Defense, “Conditions of Detention and Imprisonment in the IPS facilities between 2013 – 2014”, July 2015, p. 6. 80 The law of amending the Prison Ordinance (number 48), was accepted by the parliament on 30. 7. 2015.

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to the disciplinary punishments.81 The disciplinary arsenal is wide: warning, serious warning, fines, solitary confinement for 14 days, delaying release from the due date for up to 21 additional days, fines, and additional imprisonment by the court for up to 6 months due to disciplinary violations in prison. At the same time, a disciplinary violation can also be tried as a criminal charge involving an additional criminal prosecution and the imposition of further penalties. Yet more serious is the wide scope of violations for which a prisoner can be punished. These violations are detailed in sub-sections of article 56 of the Prison Ordinance. They include: a prisoner’s “complaints without justification”; “written, oral or other form of communication with a person outside prison or a prisoner inside prison while breaking prison regulations”; “abstaining or refusing to walk as requested in a prison march or walking to or back from work”; “eating or taking food which is not the prisoner’s, or taking from the food portions of other prisoners or adding to their portions”; the prisoner “abstained or refused to keep his or her body clean or violated an order about hair-cut or shaving”; the prisoner “abstained or refused to keep his or her clothes, blankets, or bed linen clean, or violated an order about their order and placement”; the prisoner “caused oneself illness, wound, or incapacity”; the prisoner “behaved impolitely to a guard, prison worker, visitor, or any person who is employed in the interest of the prison”; the prisoner “refused to work, got lazy, neglected or has been negligent in his or her work”; the prisoner “made unnecessary noise or cursed”; the prisoner “behaved unruly, obscenely or immorally”; or “any act, behavior, disorder or negligence that harms the good order or discipline, even if they are not detailed above”. Although these regulations and common prison rules involve serious punitive measures, they are exempt from the requirement that they be published. These regulations are expressions of excessive legal power and legal discretion. This power was conferred by the legislature on law enforcement officers who become the main interpreters and executers of the law.82 Such excessive conferral of power without appropriate primary legislation and supervision may be seen as unconstitutional in itself. Harmful conditions of imprisonment such as unsanitary, dangerous, crowded or other unhealthy custody conditions. Another aspect of how the prison rules and practices conflict with human dignity concerns the conditions in which prisoners are kept. The Prison Ordinance stipulates that a “prisoner shall be kept in befitting conditions that would not cause injury to his or her health and dignity” (article 11b). However, 81 This means that the law violates the principle of double jeopardy. See also Kfar Saba Magistrate Court, Cr. A.. 2618/10/11 State of Israel v. Mosli (detainee (22. 12. 2011)). 82 This excessive delegation of power from the legislator to prison managers finds its expression in section 81 of the Prison Ordinance: “The prison manager will oversee and control every aspect that concerns the prison in his charge, and shall be responsible before the commissioner on the behavior of the prisoners and the prison wardens under his jurisdiction, to their handling, and to ensure that they properly perform the instructions of this law and any instruction and regulation that were issued according to it”.

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fulfillment of this ideal is once more conditioned and limited by rules and qualifications that delegate excessive power to prison managers. For example, prisoners are entitled to “proper sanitary conditions […] according to the demand of the prison authorities doctor” (section 11b (1)); to “bed, mattress and blankets for personal use, and personal possessions as established in regulations” (section 11b (2)); “clothes, personal hygiene products, and linen in the quantity and conditions set in the service rules” (section 11b (4)); “reasonable lightening and ventilation in the cell” (section 11b (5)); “daily walk in the open air in conditions and schedule set in the regulations” and “this right can be limited for considerations of the prisoner’s safety” (section 11b (6) – all emphases added). The excessive discretion accorded to prisons in determining what reasonable conditions and considerations are, can lead to the existence of prison cells that are unsanitary, dangerous, and crowded, as well as other conditions that are detrimental to the well-being of prisoners.83 For example, in over 3,000 prison cells, toilets consist of holes in floor and the shower is placed above them, a situation that causes hygiene problems and a very bad smell.84 Some prisoners are kept in cells that have no window or natural light at all. Prisoners call these cells “the graves” to convey the psychological sense that one is buried alive. Fleas and the scabies, a skin disease, are common problems in Israeli prisons. There is also a serious problem of overcrowding in prisons in which the average space per person across all prisons is 3.1 square meters and in some prisons it is only 1.5 square meters per person.85 These conditions are inconsistent with the purpose of keeping prisoners in “befitting conditions that would not cause injury to his or her health and dignity”. In fact they contradict the basic parameters of the psychological meaning of human dignity, let alone rehabilitation. After this chapter had been accepted to print, the Israeli Supreme Court issued a precedentsetting ruling on the living space of prisoners and the problem of overcrowding in Israeli prisons (HCJ 1892/14 Association for Civil Rights in Israel and others v. Minister of Public Security and others). The court ruled that within 18 months the State should allocate a living space of at least 4.5 square meters to each prisoner, including toilet and shower, or 4 square meters not including toilet and shower. This important ruling was based, among other things, on the prisoner’s right to dignity. It may mark a turning point in the approach to inmates in Israel. Invasion into prisoners’ privacy beyond what is needed for safety or for purposes of control and domination. Privacy is violated by the very nature of the prison system 83 The fact that the execution of the Regulations is under the discretion of prison authorities is further complicated by the fact that the scope of discretion is not actually detailed or written in regulations and hence remain wide open to the extent that it empties the purpose of the Regulations. 84 See P.P 20122 – 07 – 11 Ben Abu v. Israel Police and Israel Prison Service (09. 11. 2011). See also interview with the Chief Public Defense Attorney http://www.themarker.com/mar kerweek/1.2479127. 85 Ministry of Justice, Public Defense report, “Conditions of Detention and Imprisonment in the IPS facilities between 2013 – 2014”, July 2015.

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in which the person is monitored and evaluated for reasons of safety. Yet invasions into prisoners’ privacy easily go far beyond what is actually needed for those purposes alone. The clearest example of invasions of the privacy of prisoners are body inspections by jail warders. According to the Prison Ordinance, a guard, under certain conditions, has authority to search the body of a prisoner, inside and outside, including the visual inspection of the naked body without the prisoner’s consent. The warder has authority to use reasonable force to conduct that search. This includes authorization to conduct such a search on a prisoner who returns to prison after an authorized vacation, even if there is no suspicion that he or she committed any legal infraction.86 The collection of urine samples is also an example of an invasion of privacy which is both excessive and humiliating. Prisoners who want to be eligible for rehabilitation, and accordingly are housed in a drug-free prison section, must produce a urine sample as many times as they are requested, even without the suspicion that they have committed a drug-related offence (section 95 (i)). In practice this means that prisoners are required to give a urine sample every morning in the presence of guards who watch the prisoner urinate into a cup, which the prisoner then hands over to the guard. Many prisoners find this experience highly frustrating, stressful and humiliating. Some are unable to produce the urine sample in the presence of the guards and are subsequently punished for it and may therefore be denied rehabilitation provisions. It is easy to justify various excessive and humiliating intrusions as being necessary for reasons of public safety. These were the considerations used to conduct forced enemas on prisoners who returned to prison from authorized vacations, an effective practice which was once seen as a necessary means of security for keeping the prisons free of drugs and to prevent other abuses. However, the Supreme Court of Israel abolished this practice because it entailed excessive force, humiliation and violation of prisoners’ human dignity. Nevertheless, many similar humiliating practices are legally sanctioned under the law. Privacy is invaded far beyond what is required for prison security. The motivations often appear to be guided by reasons of control or domination that directly contradict considerations of rehabilitation. Domination of prisoner’s personal standing issues such as marriage, divorce, as well as prevention of sexual contact with the prisoner’s spouse or the outside world for purposes of control or subordination. The excessive control over prisoners’ lives is also clearly seen in the area of personal standing issues and sexual contact with spouses. Marriage is considered a ‘benefit’ that prison authorities may grant a prisoner at their discretion. The right to marry is not enumerated in the Prison Ordinance and is therefore conditioned on the approval of the prison authorities.87 Among the considerations for granting the right to marriage to a prisoner are the prisoner’s crime 86 See sections 95d and 95 f of the Prison Ordinance (1971), as well as Ordinance number 3. 6. 2000 of the IPS Commissioner “conducting searches on a person and in a car”. 87 Ordinance number 04.21.00 of the IPS Commissioner.

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category, his or her behavior in prison, and intelligence and security reasons. Similarly, the intimate sexual relations of prisoners with their spouses for the purpose of procreation are considered a benefit granted by prison authorities.88 The dominance over prisoners’ personal standing issues, and social contact more broadly is seen in the fact that family visits are also a benefit granted by the prison authorities. Moreover, the Ordinance of the IPS Commissioner concerning family visits limits such visits to once every two months, for no more than 30 minutes. No more than three adults are allowed to visit, in addition to the prisoner’s children who are not older than 18 years. Generally prison rules do not allow any direct contact between the prisoner and his family. They see each other through a glass or wire-net partition and talk by means of an installed phone. The situation is even worse with regard to contact with non-family members. According to article 51 of the Prison Ordinance, “a person [i. e., regular citizen] must not make contact with a prisoner unless through the rules and instructions that regulate such communication.” Every aspect of prison can be justified by some consideration of safety and security, just as forced enemas to prisoners were once justified. Yet the restrictions on prisoners’ ability to marry, to have sexual contact with their spouses, to have meaningful contact with their families, and the turning of those basic human needs and rights into benefits granted by prison managers – are in all likelihood remnants of an archaic punishment-oriented system that introduced these practices to punish prisoners and make them suffer. Today these rules and practices conflict with the stated purpose of rehabilitation, and they contradict basic notions of human dignity, chiefly that human dignity is widely understood as a normative value that protects all people from humiliation and degradation. Such practices and rules instill negative selfworth in prisoners and are aimed at maximum control. They are not maximum conditions for rehabilitation. Overall there are clearly rules, practices and conditions in prisons in Israel that violate the basic principle of protecting the human dignity of prisoners. These violations are not merely the denial of the civil rights and social benefits enjoyed by nonprisoners. They are often violations that amount to humiliation and degradation of human dignity. They tend to humiliate the prisoners through excessive and unnecessary practices of control and domination. These practices degrade human dignity because they consist of practices that human beings should not be subjected to, regardless of whether subjective humiliation is involved. The legal legitimacy of such practices degrades the value and worth of human life, not just the prisoners’ lives.

88 According to the language of Ordinance number 04.47.00 it appears that it precludes same-sex relations.

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VI. Prisoners as Helpless People and the Right to Rehabilitation The foregoing discussion illustrates the crucial point that, contrary to popular perceptions, prisoners could be classified as helpless people. Prisoners have done something wrong and they pay the price for their actions through the limitation of their basic right of freedom. They are expected to spend their time in prison in rehabilitation and preparation for the time they will return to society.89 During their incarceration, prisoners are in a similar situation to that of people in locked wards of hospitals for the mentally ill.90 Both groups are under state custody. Both groups depend completely upon the state for their most basic human needs, and indeed their very lives. Their physical and psychological well-being is determined by state laws and regulations. State employees determine and regulate nearly every aspect of their lives. Yet the laws and ethics governing the lives of mental health patients are far more developed than those of prisoners. The reason is obvious. Mental health patients are not blamed for their confinement in closed mental health institutions, whereas prisoners are held responsible for their incarceration. This major difference in attitude leads to laws and practices that ignore the fact that prisoners are in fact helpless people in state custody. Instead of receiving heightened protection of their human dignity due to their precarious situation, they are in fact still held responsible for every rule, practice and sanction that reduces or threatens their dignity. The situation of forsaking the human dignity and basic human rights of prisoners is also complicated by the legitimate interest of society in public safety inside and outside of prisons. The valuable protection of human dignity and human rights should obviously not become a means for those who want to continue breaking the law or harming others. Yet experience has shown that once prisoners’ freedom has been taken away by incarceration, considerations of security, public safety and public order in prisons easily prevail over the basic protections of human dignity. This problem is aggravated by the “primacy for drama” given by some media outlets to crim-

89

For different models of rehabilitation see Ward and Brown (2004). The Human Rights Committee that acts in accordance of the ICCPR, and is the authorized interpreter of the covenant, has made the equivalence between the two groups in two statements: “[…] to any one deprived of liberty under the laws and authority of the state who is held in prisons, hospitals – particularly psychiatric hospitals – detention camps or correctional institutions or elsewhere. States parties should ensure that the principle stipulated therein is observed in all institutions and establishments within their jurisdiction were persons are being held”. HRC, Forty-fourth session, General comment No. 21, Human treatment of persons deprived of their liberty, (Art. 10), 19. 3. 1993; “Ultimate responsibility for the observance of this principle rests with the State as regards all institutions where persons are lawfully held against their will, not only in prisons but also, for example, hospitals, detention camps or correctional institutions”. HRC, Sixteenth session, General Comment No. 9, Humane Treatment of Persons deprived of liberty (Art. 10), 30. 7. 1982 (statement number 9, 1982). 90

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inals who have committed heinous crimes, and are a reaction to popular pressure and political populism to get tougher and rougher on crime and to make prisoners suffer.91 The outcome of the negative stigma surrounding prisoners, coupled with their actual situation as helpless people under state custody, is a system that is prone to inflict harm on prisoners. As Penal Reform International report puts it, “[p]ersons deprived of their liberty are in a situation of power imbalance and particularly vulnerable to abuse. In many ways security ”trumps” dignity […]”.92 There are several reasons or causes why prisoners’ dignity is hindered in prisoners: the “assumption that persons deprived of their liberty are dangerous or violent can lead to an over-reliance on security measures”; “security measures are sometimes increased to compensate for a shortage of human resources”; “prison staff want to avoid being criticized for ‘lax security’ and therefore may opt for more severe security options”; “insufficient training can mean that staff employ security measures that are unnecessary or disproportionate.”93 Instead of treating prisoners as helpless people who are completely dependent upon the state for resocialization and rehabilitation, prisoners are seen as a constant security threat, on the one hand, and as objects of retaliation, on the other. This situation turns human dignity from a non-derogable principle to a value which is balanced against other interests and frequently must give way to those interests. In our view, the recognition that prisoners have the characteristics of helpless people, who are in the legal custody of the state, entails a positive obligation by the state to give special protection to prisoners. The nature of prisons as total institutions, the known pains of imprisonment, the high risks to prisoners’ physical and psychological well-being, and the tendency to see prisoners’ needs through security lenses make such an approach necessary. The state is thus accountable for the well-being of the people it incarcerates.94 Aside from the basic protection of prisoners’ human dig91

“Security measures that are excessive or conducted in a systematic way can infringe on the dignity of detainees, for example through unnecessary restrictions on movement, possessions or activities, routine body searching or the disproportionate or prolonged use of solitary confinement. While individual security measures may not reach this threshold, collectively they may amount to inhuman or degrading treatment. This risk is greater when there is political or media pressure for tighter security and tougher responses to crime. This trend has been observed in many countries over the last decade including as a response to an upsurge – or perceived upsurge – in organized crime, social violence and the threat of terrorism related offences”, Huber/Bernath/Allen/Delaplace, op. cit. (fn. 48), p. 2. 92 Ibid. 93 Ibid., p. 2. 94 This is consistent with the Israeli law that has recognized the status of prisoners who are under state custody as people are in a situation in which they cannot take care of themselves and hence it is the state’s duty and responsibility to cater for them (Sebba/Er’el, op. cit. (fn. 58), p. 567). Article 322 of the Israeli Penal Law, 1977, determines: “whoever is responsible for a person that because of his or her age, sickness, mental deficiency, arrest or any other reason […] must supply his means of life and cater for his health. He shall be seen as the person who caused the consequences that befell on the life or health of that person for not having fulfilled this said obligation.”.

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nity, the state should take its role as the custodian of prisoners seriously and provide for laws, rules and practices that are most conducive to the purposes of imprisonment: resocialization and rehabilitation. This would also mean an explicit and substantive right to rehabilitation which is not merely declaratory or easily balanced against competing interests.95 The right to “reformation and social rehabilitation” of prisoners as a positive state duty toward prisoners has been acknowledged in section 10.3 of the ICCPR. As the Human Rights Committee of the ICCPR has put it, “[n]o penitentiary system should be only retributory; it should essentially seek the reformation and social rehabilitation of the prisoner. States parties are invited to specify whether they have a system to provide assistance after and to give information as to its success.”96 Moreover, as Amanda Ploch argues, “human dignity should be the primary justification for prisoner rehabilitation; this is because the concept of ‘human dignity’ has the strongest ability to promote a concrete, immutable right to rehabilitation for prisoners, rather than merely having vacillating rehabilitative services”.97 Moreover, we agree with her that “[p]risoner rehabilitation grounded in recognition of human dignity is more focused on the individual prisoner as recipient, rather than on how larger society benefits from rehabilitation” and this conceptualization can affect the way the right to rehabilitation will be carried out in practice.98

VII. Prisoners’ Rights in Germany In comparison to Israel, the German prison system and its governing laws are quite advanced.99 Although it is not without its legal difficulties and problems of imple95

This legal approach is consistent with the resolutions of the ICCPR Human Rights Committee on persons in closed institutions such as hospitals, mental health institutions, detention facilities and prisons. As the committee noted, such persons should be protected from “any hardship or constraint other than that resulting from the deprivation of liberty; respect for the dignity of such persons must be guaranteed under the same conditions as for that of free persons. Persons deprived of their liberty enjoy all the rights set forth in the Covenant, subject to the restrictions that are unavoidable in a closed environment” HRC, Forty-fourth session (1992), General comment No. 21: Article 10 (Humane treatment of persons deprived of their liberty) 13. 5. 1993 at Section 3. See also Section 113 of the InterAmerican Commission on Human Rights, Special Report on the Human Rights Situation at the Challapalca Prison, Department of Tacna, Republic of Peru, 27. 2. 2004. 96 General Comment number 21 in section 10. 97 Amanda Ploch, Why Dignity matters: Dignity and the Right (or not) to Rehabilitation from International and National Perspectives, International Law and Politics 44 (2012), p. 890. 98 Ibid. 99 Germany has a federal prison system known as the Prison Administrations of the 16 states (Länder). It is under the responsibility of the Minister of Justice. According to the data reported in the ICPS, as of November 2014 the number of detained persons was 61,872 of whom 18.6 % detainees, 5.7 % women, 2.9 % juveniles, 27.1 % non-German citizens. There are 185 detention facilities containing 75,793 cells of which only 81.6 % are occupied. There

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mentation,100 the German correctional system with its extensive protection of prisoners’ rights is currently one of the most developed around the world.101 In fact, Germany’s legal norms and practices on imprisonment and rehabilitation are exemplary.102 Van Zyl Smit goes as far as to argue that the German correctional system constituted an important evolutionary step in prisoners’ rights in international law because it developed a positive (rather than negative) human rights approach that focused on prisoners’ rehabilitation and the derivative rights to “public care and assistance”.103 According to a Vera Institute of Justice report, the uniqueness Germany is in a political philosophy towards, as well as practical approach to incarceration which emphasizes the goals of resocialization and rehabilitation.104 It is different from the American approach that emphasizes retribution.105 In practice, the imprisonment conditions in Germany are more humane, less punitive, and oriented toward rehabilitation (Ibid: 9). Fines are preferred over imprisonment, solitary confinement is a rare and limited practice, and 92 % of custodial sentences are for periods of less than two years.106 Germany is also leading in the application of human dignity in relation to prisoners’ rights. Human dignity has a prominent role in the German Federal Constitution (Grundgesetz; literal translation is “Basic Law”) of 1949 which opens by declaring that “[h]uman dignity shall be inviolable. To respect and protect it shall be the duty of all state authority” (Article 1). As Lazarus notes, “[t]he FCC [BVerfG] had inextricably linked prisoners’ rights to the resocialization purpose of imprisonment, arguing

are 76 prisoners for every 100,000 citizens with a reduction tendency since 2000. See http:// www.prisonstudies.org/country/germany. 100 Axel Boetticher/Johannes Feest, German Criminal and Prison Policy, at Prison Policy and Prisoners’ Rights, Proceedings of the Colloquium of IPPF, Stavern Norway, 25. – 28. 6. 2008 (2008), pp. 361 – 390. 101 Liora Lazarus, Contrasting Prisoners’ Rights: A comparative examination of England and Germany, Oxford Monographs on Criminal Law and Justice, Oxford University Press (2004), p. 124. 102 Edward J. Eberle, Human Dignity, Privacy, and Personality in German and American Constitutional Law, Utah Law Review (1997), p. 963; Lazarus, op. cit. (fn. 101). 103 Van Zyl Smit, op. cit. (fn. 8), p 408. 104 Ram Subramanian/Alison Shames, Sentencing and Prison Practices in Germany and the Netherlands: Implications for the United States, Vera Institute of Justice, Center on Sentencing and Correction (2013), http://www.vera.org/sites/default/files/resources/downloads/europeanamerican-prison-report-v3.pdf. 105 James P. Lynch, A Comparison of Prison use in England, Canada, West Germany, and the United States: A Limited Test on the Punitive Hypothesis, The Journal of Criminal Law & Criminology 79(1) (1988), p. 198: Germany is recognized for many years as leading in low imprisonment rates relative to the United States and other Western Countries. 106 Ibid., pp. 9 – 11. Seventy five percent of all verdicts are on parole basis.

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that the basic rights to personality and human dignity, with the Social State principle, gave raise to this purpose of imprisonment and prison administration”.107 The German Federal Constitutional Court (Bundesverfassungsgericht, abbreviated BVerfG) has applied the concept of human dignity in several cases that gave meanings to the term in relation to prisoners’ rights issues. The BVerfG, together with academics and politicians, led prison reform in Germany in the 1970s. In 1972, the BVerfG determined that “prisoners were to be protected in the same way as all citizens under the Basic Law”108 and ruled that the existing legal framework governing prisoners was unconstitutional. The court set up a time-frame and normative guidelines for new legislation.109 In 1973, the BVerfG clarified that the purpose of incarceration is resocialization and that it is the obligation of the state to rehabilitate prisoners and offer them opportunities to do so. As the court put it, […] from the point of view of offender, thus interest in resocialization develops out of his constitutional rights in terms of Article 2 (1) in conjunction with Article 1 of the Basic Law [i. e. the right to develop one’s personality freely in conjunction with the protection of human dignity]. Viewed from the perspective of the community, the constitutional principle of the Sozialstaat requires public care and assistance for those groups in the community whom, because of personal weakness or fault, incapacity or social disadvantage were retarded in their social development: prisoners and ex-prisoners also belong to this group.110

These actors and several rulings of the BVerfG bore fruit in the 1976 Prison Act. This was a revolution in both the legal approach and actual practices toward prisoners and imprisonment.111 As Boetticher and Feest note, three overarching principles are set out in section 3 of the Prison Act and they serve as interpretive guidelines for the entire law and practices effecting prisoners: “the principle of normalization – life in prison institutions shall as much as possible resemble general living conditions outside prisons; the principle of damage reduction – damaging consequences of imprisonment shall be counteracted; the principle of integration – life in prison shall be organized in such a way as to help prisoners to integrate themselves into a free life”.112 Following the Prison Act, between 1976 and 2004, the BVerfG handed down 102 decisions that involved prisoners’ rights in Germany.113 The recognition of prisoners’ positive rights, and the state’s parallel duty toward prisoners, is reflected in this line of court decisions. In 1993, for example, the BVerfG ruled that a prisoner has the right to be consulted with and heard in the preparation of his rehabilitation plan, and that the plan itself may be challenged in court by the prisoner.114 The BVerfG also held that 107

Lazarus, op. cit. (fn. 101), p. 48. Ibid., p. 35. 109 Ibid., pp. 38 – 40. 110 BVerfGE 5. 6. 1973, p. 236 – quoted in van Zyl Smit, op. cit. (fn. 8), p. 408. 111 Lazarus, op. cit. (fn. 101), pp. 3 – 4. 112 Boetticher/Feest, op. cit. (fn. 100), p. 371. 113 Lazarus, op. cit. (fn. 38), p. 74. 114 Ibid., pp. 110 – 111. 108

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prisoners had the positive rights of having the conditions of their imprisonment relaxed as well as the grant of leave from prison based on their rights to resocialization and personal liberty.115 Similarly, the BVerfG granted the appeal of a prisoner who asked to receive psychiatric treatment outside the prison walls.116 In the 1998 BVerfG made an important decision concerning the terms of prisoners’ employment and remuneration for that work.117 The court ruled that prisoners’ labor is “as an effective means of resocialization” only when prisoners received fair and adequate pay. Furthermore, the prison system “must provide sufficient acknowledgement of the work done so as to reinforce the value of work to the prisoner as a means of forming an independent and crime-free life in the future.” Following this ruling, the law was amended, prisoners’ wages rose by 80 % and new rewards were introduced “such as reduction in the sentence term and relaxation of the prison regime, as payment for prison work”.118 The BVerfG has also been very clear in stipulating the conditions under which prisoners are kept and accommodated. For example, a 1993 ruling determined that even the temporary confinement of a prisoner in a cell with a broken toilet which leaked onto the floor was a serious violation of the right to human dignity. The court noted that the protection of the prisoner’s dignity imposed a duty on the state to maintain the “basic preconditions of individual and social existence” and if this could not be done in the cell the prisoner was accommodated in, then the prisoner had to be immediately transferred to different cell or prison.119 In two other decisions, the BVerfG ruled that the temporary confinement of two prisoners in a singleoccupant cell violated the dignity of the prisoners under the Article 1 of the German Federal Constitution.120 The BVerfG also provided prisoners with important legal rights for cases where prison authorities impose punitive measures.121 Namely, prison authorities cannot impose punitive sanctions against prisoners without permitting the prisoner to chal115 BVerfG Beschl., Neue Zeitschrift für Strafrecht (1998), p. 430; Zeitschrift für Strafvollzug und Straffälligenhilfe (1998), p. 180. 116 BVerfG Beschl., Neue Zeitschrift für Strafrecht (1996), p. 614. 117 BVerfGE 98, 169. 118 Lazarus, op. cit. (fn. 38), p. 109. 119 BVerfG Beschl., Strafverteidiger (1993), p. 487. 120 BVerfG Beschl., Neue Juristische Wochenzeitschrift (2002), pp. 2699 et.seq. In the first case two prisoners who were supposed to be transferred to a different prison were held in a 7.6 square meters cell for five days. The toilets in the cell were without a partition and privacy and they were allowed to come out of the cell for one hour each day. In the second case, two prisoners were temporarily held in a 8 square meter cell for 3 months due to overcrowding in prison. In this case too, the toilets were without partition of privacy. 121 BVerfG Beschl., Strafverteidiger (1993), p. 482; Zeitschrift für Strafvollzug und Straffälligenhilfe (1995), p. 372; 3 Blätter für Strafvollzugskunde (1994), pp. 6 – 7; Zeitschrift für Strafvollzug und Straffälligenhilfe (1994), p. 245; Neue Juristische Wochenzeitschrift (1994), p. 3089; Neue Juristische Wochenzeitschrift (2001), p. 3770.

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lenge those measures and allowing the courts to review them.122 The BVerfG has also criticized the German Prison Courts appellate as taking a too formalistic approach to prisoners’ appeals, ordering them to “interpret the Prison Act’s procedural provisions generously, and seek to remedy the prisoner’s procedural mistakes so as to fulfil the prisoner’s right to effective legal protection”.123 The BVerfG determined that prisoners do not have to wear prison uniforms when they are brought before the court.124 In terms of visits, prisoners have the right to have real face-to-face contact. A glass partition is only allowed when there is “concrete evidence of a real threat to security and order in the prison” and this consideration is also balanced against the basic right of the prisoner to family contact and resocialization, and “free exercise of the personality”.125 A prisoners also has the right to expect to remain in the prison in which he or she has been held for over two years.126 Finally, the protection of human dignity in Germany is non-derogable, inside and outside of prison. This means that human dignity cannot be balanced or limited by other considerations and interests. For example, a prisoner cannot be forced to undergo medical treatment or rehabilitation. This would be tantamount to treating the prisoner as means or an object to be used without recognition of his or her autonomy.127 In summary, the German prison system is one of the more advanced systems currently in place. It is certainly far more developed than the Israeli imprisonment regime that we described above. The focus on the prisoner as a human being and full citizen whose human dignity needs to be carefully considered and protected can be achieved more easily in the German system than in its Israeli counterpart. The difference can be seen in the legal protections and mechanisms that are in place in Germany such as an active Supreme Court that takes the human dignity of prisoners seriously, as well as in the right to have opportunities for resocialization and rehabilitation.

VIII. Conclusion Prisoners are people who broke the law and harmed society. Their crimes justified their imprisonment in order to protect society and to set a time in which they are sent for resocialization and rehabilitation so that they can at some point in the future return to society as better citizens and better persons. The restriction of liberty is the punishment that those citizens receive and the goal of their incarceration is reform and rehabilitation. This is often forgotten and in popular sentiments it is sometimes thought 122

Lazarus, op. cit. (fn. 101), p. 114. Ibid., pp. 114 – 115. 124 BVerf Beschl., Neue Zeitschrift für Strafrecht (2000), p. 166. 125 BVerfGE 89, 315. 126 BVerfG Beschl., Neue Zeitschrift für Strafrecht (1993), p. 300. 127 Lazarus, op. cit. (fn. 101), p. 46. 123

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that prisoners are sent to prisons in order to be further punished and to suffer. This is no longer the premise and moral justification for imprisonment. Prisoners should not lose their human dignity in prisons. Given the nature of prisons as total institutions with security concerns, and the status of prisoners as helpless people under complete control of the state, prisoners’ dignity should receive extra protection rather than less protection. Human dignity can be easily denied or violated in prisons due to security considerations and administrative stubbornness or toughness. In this reality, human dignity turns from a non-derogable principle that is supposed to shield the person from humiliation and degradation into just another interest which is balanced against, easily giving way to various other concerns. Prisoners have all the characteristics of a helpless group, despite popular conceptions and the Hollywood movies depicting tough headstrong men who spend their time in prison body-building while at the same time continuing their nefarious criminal activities from their prison cells. Many prisoners suffer from physical, psychological and social problems. The fulfillment of all their human needs and indeed their futures, lies within the hands of the state. The state has the obligation to help them elevate themselves from suffering and misery and to protect them from humiliation and degradation. This is what the basic principle of human dignity requires of the state as the prisoners’ custodian. It is the state’s duty to establish effective protections to guarantee that prisoners’ human dignity is not infringed in prison. This means that the state should ensure that prisoners are not humiliated by practices that are meant to achieve control and domination over prisoners by breaking them psychologically, taking away the prisoners’ self-esteem and self-worth. All means of control should be reevaluated according to their impact on the physical and psychological well-being of prisoners, and the actual purpose of existing control mechanisms. This reevaluation should include an independent monitoring body to handle real-time appeals of prisoners (i. e., before they are subjected to punishments and potentially abusive measures). In addition, as in the case of Israel, it is clear that there is need for a new legislation that keeps pace with European and international development in the area of prison administration. For instance, alternatives to incarceration should be considered (e. g. fines, community service, and conditional imprisonment) as well as the alternatives of parole and administrative forms of release. The Supreme Court should also reassume its role of reviewing of prison rules and practices (mostly post-facto). The courts should supervise and guide the implementation such as new laws, as is the case in Germany. Finally, the resocialization and rehabilitation should be recognized as the goals of imprisonment. Prisoners remain citizens and humans. It is one of the biggest challenges of democratic societies to see and treat them as such, despite the crimes they have committed and the harsh feelings members of society may harbor toward some of them. A prisoner who has managed to successfully resocialize and rehabilitate himself or herself is not the same person who committed the crime for which he or she was sent to prison. Cognitively, ideologically and emotionally that person may

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be a quite different and better person.128 Personality is not fixed and can be developed in every person. A prisoner should not be deterministically shackled by his or her wrongdoings of the past. That is why life sentences without parole, which generate a sense of helplessness in prisoners, conflict with human dignity.129 The rehabilitation of prisoners is not merely a social and political interest, or a utilitarian consideration. It is a moral duty and a basic human rights issue. Prisoners should spend their time in prisons being resocialized into the general norms of society: fairness, decency, trust, respect of the law, respect to others bodies, property and identities. They should be allowed opportunities to rebuild their personal and social capacities and their human capital so that they will have a better chance of reentering society. It is in society’s interest that prisoners should succeed. At the same time society has a moral duty to help them elevate themselves from their suffering.

128

Prison authorities and parole committees already evaluate and take into consideration how far and willing a prison is to participate in rehabilitation programs and the type of personality development he or she have experienced. 129 David Luban, Treatment of Prisoners and Torture, in: Marcus Düwell/Jens Braarvig/ Roger Brownsword/Dietmar Mieth (eds.), The Cambridge Handbook of Human Dignity: Interdisciplinary Perspectives (2014), p. 477.

List of Authors Susanne Beck studied Law at the University of Würzburg. The title of her doctoral dissertation, at the University of Würzburg and Tübingen, was “Stem Cell Research and Criminal Law – a Concurrent Assessment of the Use of Criminal Law in Biotechnology”. She was research associate from 2003 to 2008, and from 2008 to 2012 she was assistant professor at Professor Dr. Dr. Hilgendorf‘s Chair in Criminal Law, Criminal Procedure Law, Legal Theory, Information Law and Computer Science Law at the Faculty of Law, University of Würzburg. Frau Beck received an LLM from the London School of Economics (2006 – 2007) and held an assistant professorship in Hong Kong Business Law (2007 – 2008) at the United International College, Zuhai, PRC. Frau Beck finished her post-doctoral dissertation at the University of Würzburg and has held the Chair in Criminal Law, Criminal Procedure Law, Comparative Law and Legal Philosophy at the University of Hanover since 2013. Justice Yoram Danziger was appointed to the Supreme Court of Israel in November 2007. Between 2004 and 2007 he served as Chairman of the Israel Bar Association’s Institute of Continuing Legal Education. Dr. Danziger has been a member of the Israel Bar Association since 1980. He received his LL.B. (1980) and LL.M. (1981) degrees from the Tel-Aviv University Faculty of Law and in 1983 earned his Ph.D. in law from the London School of Economic and Political Science, University of London. Dr. Danziger has been a member of staff of the TelAviv University Faculty of Law and other Law Faculties since 1983. Justice (Ret.) Yizhak Englard is Bora Laskin Emeritus Professor of Law and former Dean of the Hebrew University Faculty of Law. He is a member of the Israel Academy of Sciences and Humanities and titular Member of the International Academy of Comparative Law. In 1997 he won the Israel Prize in Law and from 1997 to 2003 he was Justice of the Israel Supreme Court. He is an author of many books and articles on Tort Law, Contract Law, Jewish Law, State and Religion, Jurisprudence, Legal History and Comparative Law. Rachela Er’el, Adv., is a Ph.D. candidate at the Faculty of Law and a Teaching Fellow at the Institute of Criminology, both at the Hebrew University of Jerusalem. Her work as a prisoners’ rights activist is reflected in her research focus, policy advocacy, legal practice and civic activities. Previously, she worked as a lawyer at the Public Committee Against Torture in Israel. She established and managed the Prisoners’ and Detainees’ Rights Law-Clinic at the Academic Center for Law and Business in Ramat-Gan. She acted as a prisoners’ affairs consultant to the Internal Affairs Committee of the Knesset and for a decade she volunteered as Official Inspector in Israel’s prison and detention facilities on behalf of the Israeli Bar Association, and by appointment of the Minister of Public Security. Miriam Gur-Arye is Judge Basil Wunsh Professor of Criminal Law at the Faculty of Law, Hebrew University of Jerusalem. She was involved in a joint research project with a group of Israeli and German scholars, funded by the German-Israel Foundation, examining the constitutional concept of human dignity and its impact on the criminal law (2006 – 2009). She was twice invited to join international research groups at the Israel Institute for Advanced Studies, once to organize a group on the migration of criminal law principles from national

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to international law (2011/2012), and once to participate in a group on the legitimization of modern criminal law (spring 2006). She served as a Vice-Rector of the Hebrew University 2006 – 2009. She was a visiting scholar at Oxford University (1984/5); a visiting professor at the University of California, Berkeley (2001/3); a visiting scholar at New York University (summers of 2008 – 2010). In her research she deals with various aspects of the theory of criminal law, such as the philosophical foundations of criminal law defences, comparative perspectives of both domestic criminal law and international criminal law, human dignity of offenders, the overuse of the criminal law in time of crisis, and the impact of moral panic on the criminal justice system. Eric Hilgendorf studied Philosophy, Modern History und Law in Tübingen. He earned doctoral degrees in Philosophy and Law, and became Professor of Criminal Law, Criminal Procedure Law and Legal Philosophy in 1996. Since 2001, he has held the Chair in Criminal Law, Criminal Procedure Law, Legal Theory, Information Law and Computer Science Law at the Faculty of Law, University of Würzburg. His research focus lies in the areas of Medical Criminal Law, Bioethics and Criminal Media Law. He has also worked enthusiastically in the fields of Robotics, Computer and Internet Criminal Law, History of Law and Legal Philosophy. Mordechai Kremnitzer, is Bruce W. Wayne Emeritus Chair Professor in International Law and former Dean of the Faculty of Law, Hebrew University of Jerusalem. He is a director of the Israeli Press Council. He has served on several government committees, including the Committee to Examine the Use of Force by the Police, the Committee on Civic Education in Israel, the Committee on Discipline in the Civil Service, the Committee on Conviction on the Basis of Confession and Retrial, and the Public Committee to Examine Penal Policy and the Treatment of Prisoners. Kremnitzer led the 2007 Israel Minister of Justice team to examine the Homicide Offenses Law. Barak Medina holds the Justice Haim Cohen Chair in Human Rights at the Faculty of Law, Hebrew University of Jerusalem. He is a former Dean of the Faculty of Law, and currently the academic director of the Fried-Gal Program on Transitional Justice at the Law Faculty. He is a graduate of Tel-Aviv University (LLB, BA and MA), Harvard Law School (LLM), and the Hebrew University (PhD), and was Visiting Professor at Columbia University, and the University of California, Berkeley. Stefanie Schmahl has been Professor of German and Foreign Public Law, Public International Law and European Law at the University of Würzburg since 2007. In the summer semester 2015, she was a Visiting Fellow at the Lauterpacht Center for International Law, University of Cambridge. Stefanie Schmahl also served as a Council of Europe expert on “Child-friendly Justice” (2008 – 2010), as a Member of the Independent Commission on Questions of Law of MPs at the German Federal Parliament (2011 – 13), and as an Alternate Member of the Management Board of the European Union Agency for Fundamental Rights (2012 – 2017). She is currently a member of the following institutions: Advisory Council, International Nuremberg Principles Academy; Scientific Advisory Board, Institute for European Policy; the Independent Commission on Retirement Provisions for Deputies, State Parliament of Baden-Württemberg. Her most recent publications include a commentary on German Law on MPs (Kommentar zum Abgeordnetengesetz, Baden-Baden, 2016, edited together with P. Austermann), a handbook entitled The Council of Europe: Its Law and Policies (Oxford University Press, 2017, edited together with M. Breuer), and a commentary on the UN Convention on the Rights of the Child with Additional Protocols (Handkommentar zur Kinderrechtskonvention mit Zusatzprotokollen, Baden-Baden, 2nd edition 2017).

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Frank Peter Schuster has been full professor and holder of the Chair of International Criminal Law at the University of Würzburg since April 2011. After studies in Mainz and Bristol, and his legal clerkship (Referendariat) at the Higher Regional Court Koblenz, he completed his doctoral dissertation on the “Admissibility of evidence obtained from Abroad in German Criminal Proceedings” in 2005 and his post-doctoral dissertation (Habilitation) on economic criminal law in 2010 at the University of Mainz. His main academic interests lie in the general part of substantive criminal law, economic and tax criminal law, European and international criminal law, and the law of criminal procedure. He has various publications in these areas. He is a co-author of Schönke/Schröder, a leading commentary on the German Criminal Code. Kyrill-A. Schwarz was academic research assistant at the German Federal Constitutional Court from 2004 until 2006. From 2008 to 2010 he was head of division of the Department of Constitutional Law, at the Chancellery of the State of North Rhine-Westphalia. Since 2010 he has been Professor at the Faculty of Law, University of Würzburg. Doron Shultziner is Associate Professor at the Politics & Communications Department of Hadassah Academic College, Jerusalem. He has conducted research the topic of human dignity since his Master’s degree at the Hebrew University of Jerusalem. His thesis entitled “Human Dignity in Israel – Functions and Meanings” won the best M.A. Thesis Award at the Israeli Political Science Association (2004) and his paper entitled “A Jewish Conception of Human Dignity” won the Mark and Ruth Luckens International Prize in Jewish Thought (2005). He has published several papers on human dignity and its philosophical aspects, examining national constitutions, psychological aspects of dignity, and principles of legal interpretation. He has taught a course entitled “Human Dignity in Comparative Perspective” at the Law Faculty of the Hebrew University of Jerusalem since 2010.