Bad Torture - Good Torture?: What International Criminal Lawyers May Learn from the Recent Trial of Police Officers in Germany

Abstract

The author discusses whether a state agent who applies torture against a suspect in order to prevent the death of one or more innocent persons can successfully plead a ground for excluding his or her criminal responsibility under national (in particular, German) law as well as international law. The author examines the judgment of a German court, which recently found two police officers guilty of threatening to use violence against a suspected kidnapper, but refrained from punishing them on account of their motivation to save the life of the hostage. The author maintains that the court`s `guilty, but not to be punished` verdict could provide guidance for the resolution of comparable cases under international criminal law. He submits that the tension between the absolute ban on torture under international human rights law and the availability of defences even to crimes of torture under international criminal law should be resolved through a human rights-oriented interpretation of the latter. The author concludes that criminal responsibility for torture under international criminal law cannot be excluded by the fact that the torturer acts to save innocent life; however, his or her altruistic motivation may be taken into account in determining the sentence.