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

The author discusses whether a state agent who applies tortureagainst a suspect in order to prevent the death of one or moreinnocent persons can successfully plead a ground for excludinghis or her criminal responsibility under national (in particular,German) law as well as international law. The author examinesthe judgment of a German court, which recently found two policeofficers guilty of threatening to use violence against a suspectedkidnapper, but refrained from punishing them on account of theirmotivation to save the life of the hostage. The author maintainsthat the court's ‘guilty, but not to be punished’verdict could provide guidance for the resolution of comparablecases under international criminal law. He submits that thetension between the absolute ban on torture under internationalhuman rights law and the availability of defences even to crimesof torture under international criminal law should be resolvedthrough a human rights-oriented interpretation of the latter.The author concludes that criminal responsibility for tortureunder international criminal law cannot be excluded by the factthat the torturer acts to save innocent life; however, his orher altruistic motivation may be taken into account in determiningthe sentence.