Abstract
When the West German authorities responded to the threat posed by the Red Army Faction during the 1970s, they also faced criticism from increasingly internationalized civil society initiatives in defence of human rights. West German activist intellectuals sought to publicize inhumane prison conditions like solitary confinement, as well as wider-reaching measures like the 1972 Anti-Radical Decree which excluded those deemed to hold ‘anti-constitutional views’ from the civil service. Although dismissed by their domestic political opponents as pro-terrorist posturing, the rising currency of human rights in this decade made criticism of prison conditions a more potent issue on an international scale. Criticism of West German conditions in terms of ‘human rights’ was, however, a double-edged sword. It afforded domestic issues considerable international resonance. But it also sparked an official response that focused more on repairing West Germany's international image through counterpublicity campaigns than on investigating the veracity – or otherwise – of the Left's criticism of domestic conditions. Government officials saw the language of human rights as too important to hand over to left-wing opponents. To them, it was an opportunity for the Federal Republic to signal its rehabilitation as a liberal democracy and criticism of domestic conditions threatened to undermine this project.
On 30 May 1975, the European Commission of Human Rights rejected a petition submitted by Andreas Baader, Ulrike Meinhof, Holger Meins, and a lesser-known member of the Red Army Faction (RAF) Wolfgang Grundmann. They claimed that their human rights were being violated by the conditions of their pretrial detention and those imposed on their legal defence. 1 These included restrictions on visitors, correspondence, and newspaper access, as well as isolation from other prisoners at their respective locations. In its statement of facts, the European Commission of Human Rights rejected the plaintiffs’ self-description as ‘political prisoners’; they were charged – according to section 129 of the (West) German Criminal Code – with belonging to a criminal association. They were not, so the report reasoned, being held on account of their political views, but rather in connection with crimes including theft, murder, and bombings. 2 The Commission rejected the idea that their human rights were being violated under Article 3 of the European Convention of Human Rights (prohibition of torture) in the strongest of terms. These claims were ‘not only inadmissible but also manifestly ill-founded’. 3
The RAF was a militant left-wing group that represented one of the violent political trajectories to emerge from the multifaceted West German ‘68 movement. Founded in 1970, the RAF situated its call for class justice within an internationalist framework while departing from the majority of its left-wing contemporaries in its use of political violence against people and institutions deemed to be representative of either US-led imperialism or the Federal Republic's recent fascist past.
The official response to the RAF was of concern to the Left in general because it was deemed to epitomize a broader wave of political repression throughout the 1970s. As a journalist and public figure, Meinhof was a particular source of identification for left-wing intellectuals. In January 1972, Heinrich Böll famously articulated his concern that BILD newspaper had prematurely declared Meinhof guilty of participating in a recent bank robbery; this incident ought not to allow trial by media to become established in a liberal democracy. 4 The nuance of his position was overlooked, however, and he was instead cast as a terrorist ‘sympathiser’ by the Springer press and the conservative opposition parties. 5
Prison activism was a focal point for public intellectuals, and it was transnational too; Foucault's famous Discipline and Punish (1975) was accompanied by on-the-ground activism in France including the Prisons Information Group (GIP) that he co-founded in 1971 (this disbanded the following year to form the Prisoners Action Committee (CAP)). A legacy of the 1968 movement in France, it also forged international links, including with the US Black Panther Party and the Italian Lotta Continua. 6
For these liberal democracies, the 1970s represented a decade of exponential growth in left-wing prison activism. In the West German context, it is impossible to extricate this expansion in prison activism from the wider wave of repression perceived by the Left which, in a narrative widely attributed to Gudrun Ensslin, had begun with the arrests of protestors against the Shah of Iran in 1967 and the killing of the peaceful demonstrator Benno Ohnesorg. Ensslin had not been alone in interpreting these events as an expression of the inherent violence of a ‘fascist’ state run by the ‘Auschwitz generation’. 7 At a grassroots level too, Rote Hilfe (‘Red Aid’) groups – whose remit included but was not limited to demonstrating solidarity with prisoners – began to reappear around 1969/70 in West Berlin (the very first groups had existed during the Weimar Republic), and soon spread across the Federal Republic too. 8 They represented overlapping and opposing values, particularly regarding the question of whether they saw themselves as part of a militant struggle or an effort to build a communist political party rooted in the working class, as well as whether to make a distinction between ‘political’, ‘social’ and ‘criminal’ prisoners. 9
The RAF's conceptualization of prison existed in symbiosis with wider left-wing (prison) movements, although it also advanced its cause under its own idiom. For the RAF, the body itself became a locus for its political message. Criticism of the West German state was now articulated, among other methods, through self-starvation. As Passmore argues, this ‘became a part of the effort among the RAF prisoners to embody the victimhoods of their rhetoric. Self-starvation allowed the prisoners to align their bodies with images of Nazi concentration camp victims’, and terms like Vernichtungshaft (incarceration with intent to exterminate) compounded the false equivalence that members of the RAF attempted to construct between their own experiences in prison and those of the victims of the Shoah. 10
Whereas Vernichtungshaft alluded to the past, the term Isolationsfolter – literally ‘isolation torture’ – offered a foothold in the human rights discourse of the present. Isolationsfolter was not, however, widely accepted as a legal definition. Referring to both social isolation and sensory deprivation, Isolationsfolter was the basis for the RAF's petition to the European Commission of Human Rights. When the Commission refused to recognize the prison conditions of Baader, Meinhof, Meins, and Grundmann as violating their human rights, it was not technically passing judgement on the veracity of their reported experiences. The Commission merely indicated that Isolationsfolter did not fall under its definition of torture: The applicants are wrong in relying on the prohibition of torture. They misconceive the term torture. It means the infliction of bodily or mental pain to compel a person to make statements or confessions.
This report further detailed that torture was in any case illegal according to the Federal Republic's constitution and Code of Criminal Procedure. The RAF's definition of torture as including social isolation and sensory deprivation was, to the Commission, ‘not made for any valid legal reason but only for the purpose of arousing public opinion, which must be emphatically rejected’. 11
An independent, internationally recognized body had declared that torture was categorically not taking place in West German prisons. And yet, the Commission's official ruling did little to stem public controversy within and beyond West Germany. This is because ‘human rights’ are a concept with dual application. On the one hand, they refer to an official set of definitions designed to prevent people from ill treatment by states across the globe, but in everyday speech and political campaigns, human rights function as a moral imperative, unbound by specific legal definition. 12
This dynamic increased in the 1970s when human rights and the nation-state became ever more decoupled in the rhetoric of Western human rights activists. 13 Indeed, human rights have always tended to be employed more as relational concepts rather than as fixed values in political discourse. 14 The internationalization of human rights campaigning engendered optimism – here was an idealistic message to be spread far and wide – but it did skirt the issue of how states were best placed to address issues within their own domestic spheres of influence; some US Amnesty activists felt unease and feared accusations of hypocrisy, for example, in campaigning against the death penalty abroad, while the dictatorships in Chile and Argentina in the 1970s rejected transnational criticism of their human rights record, responding with ‘counterpropaganda’ which by nature did not engage with actual conditions on the ground. 15
The contradictory reality of ‘human rights’ is also illustrated by the controversy and discourse relating to left-wing terrorism in 1970s West Germany. The language of human rights gave domestic issues international resonance and invited scrutiny of the Federal Republic's global standing. This article focuses on the counterpublicity campaigns launched by the Federal Foreign Office in response to the RAF's allegations of torture to illustrate how human rights became a diplomatic issue in this decade. The legitimacy of nation states’ membership in international institutions was increasingly governed by the concept of human rights, but external institutions and grassroots activists could not automatically improve prison conditions by invoking it. Indeed, when issues like conditions for politically motivated prisoners were framed as human rights violations within the Federal Republic, the authorities were less inclined to investigate the actual circumstances. To accept this framing risked undermining the Federal Republic's international standing. The ability to hold the monopoly of violence, unlike the Weimar Republic, and to do so in full respect of human dignity, unlike Nazi Germany and communist East Germany, was a founding ideal and a crucial component of the West German reason of state (Staatsräson). 16
The Federal Republic demonstrated its commitment to human rights by recognizing the UN Year of Human Rights in 1968 and adopting the Helsinki Accords in 1975. But during the 1970s, its treatment of suspected and confirmed members of left-wing terrorist groups drew uncomfortable international scrutiny. The European Commission of Human Rights and Amnesty International may have refused to view members of the RAF as prisoners of conscience or political prisoners. 17 But the RAF's unusual access to publicity meant that – for the first time – conditions inside prisons in West Berlin and West Germany could tarnish the image that the Federal Republic aimed to export. 18
In a radio discussion on 1 August 1975 alongside journalists from the Netherlands and Switzerland, and Otto Theisen, the Minister of Justice for Rheinland-Pfalz, the Federal Minister of Justice Hans-Jochen Vogel accused the Federal Republic's western European neighbours of hypocrisy: We are accused of imposing awful laws on these poor terrorists. But I've got a list on me. […] Belgium is reintroducing the death penalty […]. In England, they can be detained for up to a week without an arrest warrant merely on suspicion of having come into contact with the IRA. In Italy, there's legislation that far surpasses anything that the fiercest supporters of law and order could ever envisage here.
19
This radio discussion happened to be held on the same day that the Helsinki Accords were signed, a set of agreements containing two somewhat contradictory provisions. On the one hand, the signatories pledged to protect human rights, while on the other, they reaffirmed the principle of non-intervention in other states’ internal affairs. The Helsinki Accords officially made human rights a domestic issue. Though governed by international law, compliance was to be determined by each country or state on an individual basis. Nevertheless, human rights would never stop being a thorny diplomatic issue. It is notable that Vogel struck out against other Western European states rather than the Soviet Bloc or what was then known as the Third World. Although citing bad practices in comparable countries did not constitute a positive case for human rights in Western Europe, Vogel's perspective indicates that a primary diplomatic concern for the Federal Republic was defending its status as just another Western liberal democracy.
Human rights are popularly understood as a self-evident and universal set of protections for the individual against torture and false imprisonment. High-profile organizations like Amnesty International have helped cement the idea that advancing human rights is a universal desire. In its first annual report, Amnesty International presented itself as a movement ‘composed of peoples of all nationalities, politics, religions and social views who are determined to work together in defence of freedom of the mind’. It aimed ‘to mobilise public opinion in defence of those men and women who are imprisoned because their ideas are unacceptable to their governments’ in order to ‘secure world wide [sic] recognition of Articles 18 [freedom of thought] and 19 [freedom of opinion and expression] of the Universal Declaration of Human Rights’. 20
Yet, as Samuel Moyn has argued, Amnesty International's mission found little resonance as a focal point for grassroots political movements throughout the 1960s. The UN declared 1968 the International Year of Human Rights (to celebrate the anniversary of the 1948 Universal Declaration of Human Rights), but even then, such rights remained peripheral as an organizing concept and almost non-existent as a movement. […] no one in the global disruption of 1968 thought of the better world they demanded as a world to be governed by ‘human rights’.
21
While contemporary grassroots political movements were fighting for cognate values like anti-colonial liberation and global justice, human rights initially featured more in international diplomacy than as an organizing concept for civil society.
States also had context-dependent interpretations of what human rights meant in practice, especially within the context of the Cold War. As Ned Richardson-Little argues, ‘the International Year served as a crucial moment when human rights became part of the mainstream of state socialist ideology and diplomacy’ within the Eastern Bloc. These rights were understood in relational terms, as ‘state socialist elites […] claimed to stand for a superior kind of “socialist human rights” at home where capitalist exploitation had been abolished’. 22
Contrary to popular assumptions in the post-1990 world, prisoner rights in the Soviet Union were not a particular priority within UN discourse either; in 1968 the predominant focus was on South Africa, Rhodesia, Israel, and Spain. 23 The 1970s saw the rapid ascent of human rights discourse, culminating in Amnesty International receiving the Nobel Peace Prize in 1977. 24 This explosion in interest in human rights also destabilized concepts like liberal democracy; human rights discourse helped to flatten hierarchies imposed by the Cold War order, enabling states to articulate criticism of one another in a way that disrupted the complacency of Western democracies towards their own citizens’ civil liberties. The Federal Republic was arguably the most susceptible to such international criticism not just because of a perceived need to prove itself in view of its Nazi past, but also because of the continued convergence of terrorism and human rights issues: 1977 was declared by Amnesty International to be the ‘Prisoners of Conscience Year’ and would also turn out to be the apex of left-wing terrorism in the Federal Republic. 25
Amnesty International presented a diplomatically useful – yet risky – opportunity for the Federal Republic. The Federal Foreign Office had dismissed requests for help from activists affiliated with West German Amnesty on diplomatic grounds in the 1960s. 26 But during the 1970s, the Federal Republic increasingly saw the merit of supporting a non-governmental organization which could criticize human rights abuses across the world without risking accusations of reneging on the diplomatic principle of non-intervention, as might be anticipated if it were to speak out against another state directly. 27
In 1972, the Federal Foreign Office issued an internal memo indicating a limited willingness to work with Amnesty International, offering to act in an advisory capacity in cases that irrefutably involved non-violent prisoners of conscience. 28 But the case of the RAF would put this relationship under considerable strain. The Federal Republic featured in Amnesty International's annual reports from 1974 onwards, when its Secretary General Martin Ennals wrote to the Ministers of Justice of the various federal states where members of the RAF were imprisoned to express concern at their conditions, especially the extended length of their pretrial detention. 29 Despite Amnesty's core value being to support (political) prisoners, it is striking that it proved impossible to maintain such a narrow focus. Not only did Amnesty International continue to voice concern over the treatment of the militant Left in West German prisons – none of whom were officially adopted as prisoners of conscience – but it also cited the potential negative repercussions of various laws designed to prevent political extremism for civil society in general and the non-violent Left in particular. 30 Section 88a of the German Criminal Code, introduced in early 1976, entailed up to three years’ imprisonment or a fine for producing and/or distributing written materials deemed anti-constitutional or to incite crime. According to Amnesty International, this law had predominantly been used to justify police raids on left-wing bookshops and printing presses. Likewise, sections 131 and 140 (outlawing the glorification of violence and the condonement of criminal acts respectively) were concerning because they could be interpreted subjectively and risk ‘the imprisonment of authors or publishers for exercising their right to freedom of expression without advocating violence’. 31
Amnesty International stood apart from other examples of civil society activism in its veto on national sections protesting against domestic conditions; it focused exclusively on ‘prisoners of conscience’, examples of which must always be found elsewhere. The West German section was unusual in that it addressed domestic issues despite the official Amnesty veto on doing so, and despite Amnesty's refusal to consider the RAF as belonging to its remit of political prisoners. 32 Moreover, the RAF featured more prominently in Amnesty International's annual reports than comparable leftist groups like the Maoists in France and the Weather Underground in the USA. Each national section of Amnesty International emerged organically, thus reflecting activists’ preoccupations as shaped by chance and national context. Part of it was surely due to the strength of the West German section. By the early 1970s, it was the largest in both financial terms and membership. 33 Another reason for the strength of this engagement compared to other countries was the recent Nazi past and, in some cases, direct experience of political imprisonment during the Third Reich. Concern that the state was overplaying its hand in the 1970s was shared by veterans who had fought against the Third Reich and New Leftists inspired by their actions. 34
But prison activism was also deeply heterogenous. Some activists supported only political prisoners while others supported all prisoners, and opinions varied as to who belonged to each group, as well as support for reform versus abolition. The RAF was exceptional because Amnesty International categorically did not accept it as belonging to its remit while still intervening on its behalf – albeit not in a way which pleased everyone. In 1974, a committee drawn from the West German section formed to collect preliminary materials that would aid Amnesty International in investigating the RAF's prison conditions. But another group, the Committee against Torture of Political Prisoners in the FRG, deemed this action to be too slow, and occupied the offices of the West German section in Hamburg on 30 October 1974 in protest. 35 A fractious relationship thus existed between and among West German activists, whose motivations ranged from viewing the RAF as a case study for human rights for all, to unconditional support for the RAF's methods and political cause. 36
Throughout the 1970s, West Germany was scrutinized on an international level for its treatment of domestic terrorists at a time when it, too, wished to participate in universalist messaging in support of human rights across the globe. In response to the controversy unleashed by the RAF, the Federal Republic struggled to address actual conditions in its prisons, and instead responded to the crisis with counterpublicity campaigns. It pushed back on international criticism not by turning a critical eye to where its prison conditions may, in fact, have fallen short of the standards of a liberal democracy, but instead justified them based on the individual personalities and circumstances of those identified as left-wing terrorists. Members of the RAF might have represented a tiny minority of the West German population, but their strategy of contesting their prison conditions was amplified by the rising international currency of human rights at that time.
In anticipation of – and later in response to – the negative publicity generated abroad regarding the trial of the first generation of the RAF in Stammheim (beginning 21 May 1975), the Federal Foreign Office went to striking lengths to fight fire with fire. On 12 May 1975, a memo detailed plans for ‘truly effective publicity work to precede and accompany the trial’. Material to be shared with its foreign embassies would cover the core anticipated themes of domestic and international criticism. These included: the exclusion and surveillance of defence lawyers; trials in absentia; hunger strikes and force-feeding; ‘so-called’ isolation torture; and campaigns for justice led by lawyers and sympathizers. 37
Prior to the opening of the trial, the Federal Ministry of Justice (Bundesministerium der Justiz; BMJ) and the Federal Ministry of the Interior (Bundesministerium des Innern; BMI) would hold a press conference to brief journalists on the ground. ‘Background material’ was to be distributed to all embassies in northern, western, and southern Europe, as well as the USA, Tokyo, and Canada. 38 The Federal Ministry of Justice and Inter Nationes, an association responsible for producing press materials about the Federal Republic abroad (it later merged with the Goethe-Institut in 2000) planned to collaborate on a ‘fact sheet’ to be issued in German, English, French, Spanish, and Portuguese to all West German embassies abroad so as to aid their publicity work. 39 The first was published on 16 May 1975. 40
On 16 July 1975, several weeks into the Stammheim trial, the Federal Foreign Office contacted eleven of its embassies in western Europe to request that their respective press officers attend a briefing in Bonn. 41 These countries were described in a memo as those ‘in which the most negative reactions to the Baader-Meinhof trial from the mass media and in the public sphere have so far been ascertained’. 42 The aim of the conference, held the following month (18–20 August) in conjunction with the Federal Press Office, the BMI and the Federal Foreign Office, was to better equip these press officers with the information necessary to counter ‘damage to our image abroad’. 43 The mass media in what was then referred to as the Third World and the USA were considered to be barely interested in the Stammheim trials, meaning that the conference was primarily concerned with the rather critical tenor of the reporting in some western European countries. The recent growth in human rights advocacy within the European Community meant that the Federal Republic was concerned less with the perspective of the GDR on the RAF (there were, after all, a great many other opportunities for the two Germanies to express their rivalries) than it was with consolidating its position – which the case of the RAF threatened to undermine – within a community of other western democracies united, among other things, by a shared concept of human rights distinct from Soviet definitions. 44
Among the countermeasures proposed was a Q&A catalogue – to be continually updated – that would provide official press officers and embassies with ‘handy’ arguments about the RAF for use in their publicity work. 45
Whereas campaigners framed their criticism of the Federal Republic in terms of human rights (‘Menschenrechte’), the authorities did not respond in the same idiom, but instead sought to defend the state's ‘Rechtstaatlichkeit’, the legitimacy of its rule of law. 46 The Q&A catalogue, for example, had four sections as of early 1976: ‘A: The legal legitimacy of the trial’; ‘B: Legislation and legal policy’; ‘C: Specific legal questions regarding the trial’; ‘D: Causes and motivations, international connections’. 47 It was intended for eventual distribution to West German embassies worldwide as well as selected influential ‘multipliers’ within the Federal Republic. 48 Although those working on the catalogue anticipated that criticism of the judicial treatment of the radical Left would draw parallels with the Third Reich, human rights were not mentioned once. The focus was instead on asserting the legitimacy and legality of the Federal Republic's justice system in its present state. 49
And yet, time and again, human rights were the universally understood idiom for international onlookers to formulate their criticism of the Federal Republic. After Ulrike Meinhof took her own life in Stammheim prison in May 1976, for example, the Students’ Union of the University of Kent in the United Kingdom joined international calls for an independent inquiry into her death on the basis that it was ‘just one aspect of current trends in civil liberties matters that causes many foreign observers deep concern and unrest about how basic human rights are in the Federal Republic [sic]’. 50
Though some critics undoubtedly did sympathize with the RAF, the invocation of other issues, most notably the Anti-Radical Decree, indicates that the situation was also understood – both within the Federal Republic and abroad – as a warning sign that the state was reneging on its own democratic values, with wide-ranging implications for ordinary people who could also be affected by issues like imprisonment, human rights, and freedom of expression. 51
In 1977, Amnesty International commissioned a study on the health impact of sensory deprivation and social isolation on politically motivated prisoners in West Germany. In its 1979 annual report, Amnesty International still did not adopt those affected by the ramifications of anti-terrorist legislation as prisoners of conscience (indeed, not all were actually imprisoned), but did cite sections of the (West) German Criminal Code, including 90a (defamation of the state) and 130 (incitement to commit crimes) as having the potential ‘to restrict the freedom of speech of the individual and political criticism’. 52 And in May 1980, it published a report on the isolation of prisoners suspected and convicted of politically motivated crimes in the Federal Republic (mainly focused on the RAF and the 2 June Movement, and to a lesser extent on the Revolutionary Cells). 53 These prisoners ‘were kept in conditions that can – and sometimes do – inflict serious physical and psychological damage’. The report referred to four case studies from the RAF, including Ingrid Schubert, who took her own life in prison in November 1977 ‘after sinking into a state where she could no longer distinguish between reality and illusion’. 54
Despite Amnesty International's measured yet unrelenting interventions relating to the RAF, the militant Left's exceptionalism also reduced the potential for its prison conditions to be accepted as having implications for the rights of ordinary people. When representatives from the Federal Ministry of Justice met with Amnesty International in June 1979, they argued that these prisoners rejected all contact with the authorities and other, non-politically motivated prisoners. Amnesty International, for its part, believed that this was not the case across the board. It argued that instead of resigning oneself to the obstinacy of the prisoners, it might be beneficial to establish an independent advisory and medical committee that could ‘command both the confidence of these prisoners and the trust of the authorities’. 55
Given the charged political climate at the time, some activists who campaigned on the prisoners’ behalf may well have supported the aims of the RAF and wished to undermine the West German state. But it is necessary to pan out from those imprisoned for terrorism-related offences to understand the wider concerns for the general prison population that their cases sparked. The author Ingeborg Drewitz (1923–86), for example, campaigned tirelessly for hundreds of prisoners, of whom a tiny minority belonged to militant groups. Her political engagement was predominantly informed by her experiences under Nazism, and her concerns for values like human rights and democracy were continually provoked by contemporary events. In an undated article, ‘The past is not behind us’, Drewitz expressed anger at the tendency within the Federal Republic to overlook the obvious legacies of the Nazi past, citing the indifference to concentration camp returnees in 1945 and the acknowledgement of German war suffering only. She was also outraged at the ‘McCarthyism’ of the new Federal Republic, the ban of the German communist party (KPD), and the false equivalence that she felt had been drawn between socialism in the Eastern Bloc and democratic socialism as might be achieved in the West. 56 The RAF was, therefore, not Drewitz's central political concern; rather, it was emblematic of wider issues. Drewitz walked a tightrope in campaigning on behalf of the RAF without sympathizing with its violence. In late October 1974, for example, she participated in a four-day hunger strike alongside students and other writers to raise awareness of West German prison conditions. She did not support the RAF – it had ‘weakened democracy’ – but still felt it important that the ‘border zones of democracy in the prison system be brought to light’. 57 Further testament to her overarching concern for prisoners’ rights was her later correspondence with the artist and prisoner Winand Buchacker (published in 1979), which covered issues such as low pay for prison labor, the psychological impact of isolation, and extreme temperatures in prison. 58
Taken alongside concern for prisoners in general, the campaign against the 1972 Anti-Radical Decree and criticism of the judicial treatment of suspected and confirmed terrorist groups can be read as part of a much broader pushback against the erosion of existing civil rights and liberties within the Federal Republic. 59 For Karrin Hanshew, ‘terrorism was seen as a litmus test for German democracy, where the responses of the state and populace were taken as evidence of the lessons West Germans had or had not learned from the past’. 60 Consequently, as Quinn Slobodian argues, ‘the “leaden years” of terrorism and counterterrorism were also a time of vibrant democratic mobilization when novel configurations in West German state and civil society pushed back against the expansion of executive power using the language of the law’. 61 Activists were concerned less with undermining the state and more with holding it to account as a liberal democracy. The Federal Republic's insistence that its (counterterrorism) measures were legal according to domestic laws did not dismantle the moral case put forward by its critics. There was thus little room for dialogue between campaigners and the state. Activists were protesting against issues with far-reaching implications for freedom of expression and for prisoners’ rights in general, while the authorities perceived this as an attack and were reluctant to invite critical engagement with the underlying issues at stake.
The antagonism between activists and the state precipitated by terrorism during the 1970s endangered the idea of ‘wehrhafte Demokratie’, democracy capable of defending itself against external and internal threats without tipping into dictatorship. To some critics, aspects of counterterrorism measures such as a renewed militarized police presence recalled the fall of the Weimar Republic and the emergence of the Third Reich. 62 Meanwhile, the majority of the mainstream political parties (SPD, CDU/CSU, and FDP) viewed such measures – especially the Anti-Radical Decree – as in fact having an opposite ‘anti-totalitarian’ function. 63 The actions of the ruling SPD were also spurred on by accusations of complacency against terrorism from the conservative opposition; it too was accused of leftist sympathies with the RAF. Measures like the Q&A catalogue, which were designed to defend the legitimacy of the state by ‘correcting’ public perceptions of the RAF, thus belonged to this tradition of ‘wehrhafte Demokratie’ while also helping the SPD to defend itself against its conservative critics. But such measures fell short in responding to campaigners’ demands to investigate actual prison conditions on the ground.
It is striking that counterpublicity campaigns were prioritized across governmental departments; the working group for publicity to accompany the Stammheim trial involved representatives from the Federal Foreign Office, the Ministry of Justice, and the Press Office, joined later by the Ministry of the Interior too. 64 This was resource-intensive work; embassy press officers were expected to gather examples of negative reporting on the trial and other relevant themes such as the Anti-Radical Decree and the legitimacy of the rule of law in the Federal Republic, and also to send the Federal Foreign Office any flyers and gray literature referencing West German terrorism. 65 It was recognized that overtly intervening in public discourse might confirm the ‘political dimension’ of the trial promoted by the RAF's lawyers, and so the Federal Press Office argued that ‘this information policy and publicity work should therefore predominantly be used to strengthen and correct existing trends in public opinion. This could also take place as a preventive measure’. 66
The suggested corrective measures were often linguistic in nature; Vogel could, for example, publicly emphasize that the Stammheim trial was about a ‘criminal association, not a political group, they are not on trial for their political beliefs’. 67 And yet section 129a, a new addition to the (West) German Criminal Code criminalizing the formation of a terrorist group, was scheduled for introduction the very next year, in 1976. The authorities did, in fact, anticipate this criticism in the draft Q&A catalogue from June 1975 with the question: ‘Is the new offence of forming a terrorist association not an example of political justice?’ 68 This law could not, of course, be applied retroactively to those already on trial in Stammheim. But it did indicate an unspoken consensus between the authorities and prison campaigners that the crimes of the RAF were politically motivated, despite its members being imprisoned for violent crimes and not just for their political views. The self-perception of members of the RAF as political subjects was a double-edged sword when it came to human rights in West German prisons. As prisoners, they had a credibility deficit. 69 But they also possessed a surplus of credibility relative to the general prison population because their access to publicity far surpassed that of the average prisoner. But when it came to the potential for their protests to bring about change for the entire prison population, their credibility deficit as prisoners – and as terrorists – ultimately won out; their broader concerns – which were also borne by those who campaigned on their behalf – could be dismissed on the grounds that the RAF was not innocent of violent crime.
Early 1978 saw a flurry of official human rights-related activity in preparation for the thirtieth anniversary of the Universal Declaration of Human Rights and the twenty-fifth anniversary of the European Convention on Human Rights. On 14 February, the Federal Ministry of Justice published a pamphlet titled ‘The Protection of Human Rights in the Federal Republic of Germany’. Five thousand copies were to be distributed, primarily domestically. But the mood was not merely celebratory. Rather, the West German government again had reason for defensive publicity; new events threatened to attract international scrutiny of its human rights record. A memo from Bonn indicated that the pamphlet had been published early ‘so as to be available prior to the start of the “Russell Tribunal”’. An English translation to be distributed to the West German embassies was also planned. 70
The Russell Tribunals were envisaged by the philosopher Bertrand Russell as sites where states might be held accountable for human rights violations. They were organized by international networks of activist intellectuals who sought to create civil society-led courts of law, thereby creating a level of oversight that traditional justice systems could not provide in their own states. Despite the idealism behind the tribunals, they were highly controversial and not well-received by the states put on ‘trial’. The first tribunal took place from 1966 to 1967 and dealt with the war in Vietnam, while the second addressed torture in Latin America over three sittings in 1973 and 1976 in Brussels and Rome. 71
The Federal Republic was the subject of the third tribunal. This choice was highly controversial, not least because it undermined West Germany's desired international image; it was supposed to be a postwar success story, with human rights abuses firmly belonging to other times and places, namely the Global South, the GDR, and the Third Reich. Furthermore, the tribunal challenged the institutional Left. The first SPD-led government of the postwar era had, after all, been responsible for the introduction of the Anti-Radical Decree and the prison conditions of those suspected of politically motivated crimes. For Willy Brandt, the leader of the SPD, ‘equating the Federal Republic with Vietnam and Chile was an insult to social democrats given that they played a leading role in building up and expanding the democratic constitutional state’. 72 This criticism was, indeed, shared by several West German activist intellectuals close to the organizers. They argued that conditions in the Federal Republic were not comparable to those in the Global South, and that it was both morally wrong and politically counterproductive to do so. 73
As with the beginning of the Stammheim trial in 1975, this tribunal saw concerns over counterterrorism and human rights converge, attracting international scrutiny of the Federal Republic at a time when the ruling SPD was itself also facing domestic criticism from the CDU/CSU. The tribunal officially focused on the Anti-Radical Decree and its implications for civil society as a whole, rather than the experience of the minority imprisoned radical Left, although focusing on these prison conditions had been considered during the planning stage. 74 In addition, the timeline of left-wing terrorism in the Federal Republic overlapped with significant stages in West German human rights discourse. The prison conditions of the radical Left thus remained at the forefront of the authorities’ minds at the time, despite not being central to the tribunal.
The violence of the RAF was building to its apex in late 1977 with a series of kidnappings and murders, as well as the hijacking of a plane by the Popular Front for the Liberation of Palestine (PFLP) in an attempt to secure the release of the first generation of the RAF from prison. This sequence of events culminated in the suicides of the remaining first generation of the RAF in prison that October after the authorities refused to give in to their demands. On 25 July 1977, just months after the murder of Siegfried Buback, the Attorney General of the Federal Republic, and days before the murder of Jürgen Ponto, Chair of Dresdener Bank during an attempted kidnapping, the Federal Foreign Office sent a memo to seventeen embassies across Europe – on both sides of the Cold War divide – about the planned Russell Tribunal. 75
Although the tribunal was only in the planning stage, the Federal Foreign Office was aware that the Anti-Radical Decree would be its central concern and believed that the tribunal had the support of various socialist and communist organizations abroad in countries like France, Italy, and Austria. Embassies were requested to monitor the media landscape in their respective countries, and report back on any coverage of the planned tribunal and local reactions. 76 The responses from the embassies conflated West German left-wing terrorism with the tribunal without prompting; the West German Embassy in Sweden pointed out that the magazine Kommentar had published an interview with first-generation RAF member Monika Berberich in the same issue as coverage of the tribunal. 77
As in the run-up to the Stammheim trial in 1975, pre-emptive and counterpublicity seemed to form the backbone of the official response to the wider democratic concerns sparked by the radical Left at the time. In a report by the public security department of the BMI, the Russell Tribunal was referred to as a ‘defamation campaign’ which ‘smeared the constitutional democratic order of the Federal Republic of Germany’ and which could lead to an increase in sympathy for terrorism. The report listed various laws which could be used to block the tribunal from taking place in the Federal Republic or West Berlin, and even bar international participants from travelling. It also called for counterpublicity campaigns (‘intensive information and clarification’) so that the public – in the Federal Republic and beyond – might be informed of ‘the true nature of the circumstances distorted by the tribunal (e.g., the treatment of prisoners, civil service suitability assessments) and the reasons for this constitutional and democratically legitimate regulation’. 78
In late September 1977, the authorities were still unsure of when and where the tribunal would take place, if at all. But they were certain that any preparations would negatively impact the Federal Republic domestically and abroad. The Federal Ministry of the Interior met with the Ministry of Justice, the Press Office, and the Foreign Office to consider various pre-emptive and preventive measures, including requesting that state institutions refuse to provide a venue and threatening to withdraw funding from student groups. Banning the tribunal was, however, ultimately deemed counterproductive: ‘It is highly likely that any repressive measures would be met with a negative response abroad. A ban might also result in the tribunal taking place abroad’. 79
Counterpublicity was, therefore, the most feasible course of action. The Federal Ministry of the Interior planned to distribute a brochure about the Russell Tribunal as soon as its date was known. The Press Office would speak off-record with the media, and the federal states would be encouraged to provide useful information on the Anti-Radical Decree and prison conditions (the latter remained key to what the authorities believed the tribunal to be about even though it focused almost exclusively on the Anti-Radical Decree). A ‘counter information point’ with ‘counterwitnesses’ to accompany the tribunal was even considered. Lastly, the West German embassies were to be kept continually updated to mitigate any reputational damage to the Federal Republic abroad.
80
Human rights concerns came to be regarded as sympathy for left-wing terrorism in the West German context because of their temporal alignment and thus inevitable overlap in public discourse. Officials not only feared negative external coverage of their response to the tribunal, but also, as the Federal Ministry of the Interior put it, feared that ‘a focus on the Anti-Radical Decree could serve as cover for a forum that could be used to
Overall, the response of the Federal Republic to criticism of its treatment of the radical Left focused on definitional matters. Should these prisoners be considered political? And did social isolation and sensory deprivation count as torture? The West German authorities stuck steadfastly to the rulings of bodies like the European Commission of Human Rights. In addition to its 1975 ruling that this treatment did not match its definition of torture, in 1978 it also dismissed a claim submitted by Baader, Ensslin, and Raspe on the basis that their prison conditions did not contravene the European Convention on Human Rights, nor were they illegal under West German law. 82
Focusing on definitions meant sidestepping the question of whether these practices were medically harmful even if they did not technically qualify as torture. Amnesty International was usually guided by the United Nations Standard Minimum Rules for the Treatment of Prisoners (last revised in 1977), and although solitary confinement was not yet part of these guidelines, it regarded solitary confinement as a practice which ought to expand the definition of torture. As an independent body, Amnesty International thus called for the international definition of torture to be expanded on moral rather than legal grounds:
[M]edical science and criminal law are not opposites: one starts where the other ends and the border changes with time. […] [I]solation has been recognised worldwide as a medical problem and is the opposite from what is required from a medical point of view. 83
But responding to calls to change policy based on (new) medical evidence was difficult for states when these calls had been communicated in the language of human rights. Since human rights had become a diplomatic issue, representing the very worst conditions abroad, states were reticent to address potential domestic lacunae in these terms. And for the Federal Republic, this was compounded by the need to appear strong in the face of domestic terrorism.
The discourses of terrorism and human rights are both potentially polarizing; false oppositions may arise when calls for humane conditions for all prisoners are interpreted as covert sympathy for terrorism. As Amnesty International argued, ‘ways can and must be found to accommodate prison security with humane treatment’. 84 Counterterrorism debates within the Federal Republic tested West Germany's response to the rise of universalist human rights in the 1970s. To be taken seriously as an international player did not come automatically for the Federal Republic; both Germanies only became members of the UN, for example, in 1973. Testament to the Federal Republic's aspirations on the world stage is the policy of Hans-Dietrich Genscher, the Federal Foreign Minister, who was instrumental in the eventual adoption of the International Convention against the Taking of Hostages in 1979. Addressing the General Assembly of the UN in September 1976, he framed the need for such a convention in terms of human rights. Hostage-taking ‘violate[d] the dignity, safety, and fundamental rights of the individual’, though, as Blumenau notes, he refrained from referencing terrorism. Presenting hostage-taking as a human rights issue was also intended to reinforce the Federal Republic's international position as the ‘better Germany’ (compared to the GDR) which had fully divested itself of its authoritarian past. 85 From 1975 onwards, Genscher repeatedly called on the UN to establish a court of human rights. Though his motivations may have been somewhat self-serving, he did lay important groundwork for the establishment of the International Criminal Court in The Hague. 86 At the same time, West German officials entertained extensive relations with dictatorships guilty of state terrorism such as Argentina and Libya, were hostile towards domestic activists who criticized their deals with authoritarian regimes and impeded the acceptance of political asylum seekers. 87
Meanwhile, on a domestic level, the intertwining of terrorism and human rights discourse – most notably in relation to prison conditions – still had the potential to sully the Federal Republic's international reputation. The high-profile nature of terrorism had the potential to raise awareness of conditions faced by ordinary prisoners within the Federal Republic. For campaigners on the outside, prisoners associated with left-wing terrorism merely represented the tip of the iceberg when it came to the experiences of all prisoners. Amnesty International released its report on the isolation of those imprisoned for politically motivated crimes because of its ‘commitment to oppose “torture or other cruel, inhuman or degrading treatment or punishment” of prisoners’ and in the hope that it ‘would contribute to the setting of international standards’. 88 Prisoners disproportionately belong to society's most disadvantaged groups. 89 And so the relative educational advantage of the RAF enabled its members to articulate criticism of prison conditions within the Federal Republic to an international public far beyond the reach of the average prisoner. But this international reach also limited the potential for meaningful change to take place; it turned domestic prison conditions and counterterrorism legislation into a diplomatic issue, and diplomatic issues required diplomatic answers which prioritized rhetorical speech over concrete improvement of conditions. The RAF's allegations of prison torture were therefore addressed on an abstract level. The Federal Republic publicized the European Commission of Human Rights’ ruling that torture was not taking place in its prisons. And it rejected Amnesty International's recommendation that it establish an independent medical committee, a move which could have improved material prison conditions without necessarily categorizing them as torture. 90
Conditions within the Federal Republic certainly did not count among the worst on a global scale. But all states must be held to account as they strive to defend human rights, a process which can, by its very nature, never quite be considered complete. The concept of human rights offered a framework for activists – especially within Amnesty International – to call for better prison conditions across the world in a way that uproots the prison from the specificities of national context. In some ways, this has allowed the moral cause of activists to shine through; internationally speaking, the cause of political prisoners is secondary to the cause of the activists who protest against their imprisonment. But therein lies a contradiction. In order to argue that no one should endure such conditions, campaigners often focus on politically motivated prisoners, inadvertently privileging them over ordinary prisoners, as demonstrated by the high-profile campaigns on behalf of the imprisoned RAF in this article. Human rights activists therefore framed political imprisonment as incompatible with human rights, rather than the carceral state as a whole, thereby normativizing the concept of prison rather than envisaging alternatives. Angela Davis makes a crucial distinction between reformers and abolitionists, for it is the former who are afforded more space in popular discourse: ‘The prison is considered so “natural” that it is considered extremely hard to imagine life without it’. 91 For all the utopian promise of human rights, pragmatism prevailed on a governmental level. To West German officials, the RAF's application to the European Commission of Human Rights was a public relations crisis which may even have disincentivized the state from critically examining its own prison conditions.
Footnotes
Acknowledgements
I would like to thank Felix A. Jiménez Botta for inviting me to contribute to this special issue and for his help in shaping earlier drafts of this article.
