Many have found a Norwegian courts ruling that mass murderer Anders Breivik was being tortured in jail hard to swallow
I wouldnt have been shocked if a spectator in the public gallery had produced a gun and shot him. If Id had a gun, and thought I could have got away with it, I might have done it myself and claimed justifiable homicide. The Norwegian justice system can seem like a model of universal human rights in action, until you sit in an Oslo courtroom and watch how it deals with Anders Breivik.
We say we believe in human rights. But say it too easily and you can duck the question: what do you mean by a human right? Specifically in the case of Breivik, what precisely do we mean by the human right not to be tortured?
When I was in Oslo in 2012, I was astonished by the deference with which the court treated the puffy-faced fascist. The accused will always be given the opportunity to comment upon what the witnesses have said, Norways court rules read. The witness Breivik could barrack that day was Tonje Brenna, an organiser of the Norwegian Labour partys youth league. She described how she hid and tried to save a wounded girl, while the bodies of her slain friends fell around her.
The geography of the island of Utya, where the activists were having their summer camp, limited her movement as much as her determination to help her injured comrade. Its a flat piece of land of little more than 25 acres in Lake Tyrifjorden, west of Oslo. She had no hills to run to, no caves to hide in. Brenna could only cower on the cliff side of a low escarpment, hoping that Breivik would not notice her and her bleeding friend, while suppressing the urge to scream as bodies toppled over the cliff edge above them.
She gave her evidence with remarkable dignity. And at the end of it, the lead judge turned to Breivik and invited him to say anything he wanted. He was free to jeer at her, humiliate her, gloat over the deaths of her comrades.
When I told Norwegians the British would not tolerate anything beyond the defendant questioning evidence, they were rather stern with me. This is our system. Terrorists had the same rights as everyone else. We cannot sink to their level. Which is what everyone is meant to believe. Which is what many right-thinking people said last week when judge Helen Andens Sekulic and her colleagues decided that the Norwegian state was torturing Breivik, by holding him in solitary confinement. Their defence of basic principles played to our myth of Scandinavia as a land filled with rational liberals, better than and purer than the rest of fallen humanity.
If the stereotype were ever true, it is not true now. Before he shot 69 young social democrats and murdered another eight Norwegians with a car bomb, Breivik left a vast and vastly incomprehensible manifesto. Much of it reads like a Telegraph commentator suffering from delirium tremens. Breivik gibbers about cultural Marxism, the Frankfurt School and, of course, the EUSSR. But in his description of how he wanted men like him to kill, Breivik was lucid.
He may not have known it, but he believed in the 19th-century anarchist philosophy of propaganda of the deed. The act of terror would spread his ideas and inspire converts to become Justiciar Knights just like him. The greatest believers in propaganda of the deed today are radical Islamists. And in common with more people on the far right than you would imagine, Breivik admired them. Jihadis, he said, have honoured and commemorated their martyrs and we must do the same.
If he was captured, the European resistance fighter must use the courtroom as a stage to help generate a maximum amount of sympathisers. If he was imprisoned, Breivik promised that he would try to convert inmates or hold them and his guards hostage.
In these circumstances, Norwegians wondered what human rights the court was defending when it ruled that Breiviks solitary confinement was inhuman and degrading. They were not making mobbish demands for vengeance, but worrying about heady judicial rhetoric taking judges far from the reality-based community.
They did not even mock the court for saying that Breivik had suffered psychological damage in jail, even though less genteel writers, such as your correspondent, would have pointed out that a man who slaughtered innocents in cold blood appeared damaged enough already.
Rather, they upheld the rule of law but looked askance at the judges who enforced it. Norway is not Syria. Skien prison on the Baltic coast is not Guantnamo Bay. Breivik has three cells at his disposal: a bedroom, study and gym. He can talk to officers, priests, health workers and lawyers. But he cant meet the prisoners he had promised to either convert or take hostage and he cant issue proclamations. To call that torture, as Oslos sober VG newspaper said, trivialises real suffering and lets real torturers off the hook . True solitary confinement, where the prisoner never sees another face or hears another voice is naked cruelty. Breivik is not enduring it or anything like it.
There are still many Norwegians, including survivors of the attack, who are like the Norwegians who lectured me in 2012 for criticising court procedures. But Hanne Skartveit of VG tells me that she is now seeing widespread disquiet at the behaviour of the judiciary.
People talk of human rights as if they were always present. But they were an invention of the Enlightenment and must coexist with that second great system the Enlightenment invented, or I suppose I should say revived, democracy. Human rights can be hard for societies to live with. We treat men, even men as brutal as Anders Breivik, with respect, when all our human instincts fly against it. And that is as it should be. But, and this is not said often enough, they are also hard for their supporters. They must be able to justify themselves. They must resist the urge to engage in judicial and rhetorical overreach. They must remember that, however they are dressed up, laws stand on public consent and the public always needs to be persuaded.
With the refugee crisis and the rise of the populist right threatening European liberalism, this is not just a lesson giddy Norwegian judges need to learn afresh.