On October 1, 2002, Magnus Gäfgen was taken into custody by the Frankfurt police in connection with the kidnapping of a young boy held for ransom. The police threatened Gäfgen with various forms of torture unless he divulged the location of the boy. Gäfgen quickly relented and led the police to the boy, who was already dead. Gäfgen was convicted of murder and the police were convicted of coercion. However, the district court concluded that the police, though culpable, were not appropriate subjects of punishment. Gäfgen, unhappy that his torturers were not punished, filed a case against Germany at the European Court of Human Rights (ECHR), arguing that Germany's failure to punish his torturers violated his human rights. The ECHR concluded that Gäfgen was right--the German government was obligated to punish perpetrators of torture, and by failing to do so adequately, Germany violated Gäfgen's human rights.The goal of this chapter is to show that the argument in Gäfgen is generalizable to other contexts. Although the case arose from a particular procedural posture, there is little reason to suspect that the arguments in Gäfgen will not hold for other crimes as well. At the very least, these arguments can be extended, without logical disruption, to other international crimes that states are under a legal obligation to criminalize, such as war crimes, crimes against humanity, and genocide. Moreover, if the structure of these arguments is conceptually sound, in theory they should apply outside of the European context, unless the argument is based on a particular right that is only protected by the European Convention and not by international law.This subtle change in emphasis -- moving from punishment as a license to punishment as a legal requirement -- has profound consequences for the operation of international criminal justice. States and international tribunals are required to punish perpetrators as a matter of human rights law, and their failure to follow through on this obligation violates not just some vague or inchoate ergo omnes obligation, it also violates an obligation owed directly to the victims of that particular atrocity. This applies not just when the perpetrators are not punished at all but also when the perpetrators, like in Gäfgen's case, are not punished severely enough.
Nullum Crimen and International Criminal Law: The Relevance of the Foreseeability Test
