Is it Always Torture to Dismember and Eat a Conscious Human Being?
Possible International Human Rights Claims in the German Cannibalism-by-Consent Case

By now, nearly everyone has heard of Armin Meiwes. Meiwes, a German citizen, has freely admitted to dismembering another German man and eating his flesh. Indeed, Meiwes carefully preserved the killing on videotape and still had pieces of the body in his freezer when he was arrested. During much of the process of dismemberment, the victim reportedly remained conscious.

At first glance, it would seem it should be easy for German authorities to prosecute Meiwes. In fact, however, as the New York Times reported on December 27, though the authorities want to prosecute Meiwes to the fullest extent of the law, they are having trouble finding any serious crimes with which to charge him.

The obstacle to a murder charge is the fact that the evidence incontrovertibly shows that Meiwes's victim wanted to be eaten. Indeed, he had agreed to the arrangement over the Internet, answering an ad placed by Meiwes that specifically sought a person who wanted to be slaughtered and cannibalized.

In the U.S., the victim's consent is no defense to murder, and it would be easy to prosecute an American counterpart to Meiwes. But in Germany, the victim's consent renders the crime a "killing on request" -- that is, an instance of illegal euthanasia. Unfortunately, this offense is punishable by a very modest sentence of from six months to five years of incarceration.

Meanwhile, cannibalism itself is not illegal under German law. Accordingly, the lesser offense of "disturbing the peace of the dead" is all that prosecutors reportedly have come up with to address the fact that Meiwes not only killed his victim, but butchered his corpse.

Despite legal impediments, German prosecutors are still trying to go after Meiwes for murder. They are seeking life imprisonment on the murder charge -- the maximum sentence in Germany, which does not believe in sentencing criminals to death. But to prevail, they will likely to have to show the victim was of unsound mind -- and that Meiwes was aware of that fact. Because of some of the novel issues involved, the case is expected to reach Germany's highest court within the next few years.

But even if the murder charge fails under German law, there may be an option that would cause Meiwes to serve a sentence more commensurate with his crimes. As I will explain below, German prosecutors may want to draw upon European and international human rights agreements against torture when charging Meiwes -- including treaties such as the Convention Against Torture, as well as customary international law against inhuman or degrading treatment.

After all, if human rights law cannot be applied to instances of willful flaying, dismemberment, quasi-human sacrifice and cannibalism, when can it be applied?

Or, put another way, should Meiwes get off so easily simply because Germany does not have a crime specific to the atrocity committed here?

Fortunately for German authorities, within the international legal framework, there are many laws against the kind of treatment that Meiwes meted out to his victim. And these laws take no notice of arguments that the victim somehow consented to what was done to him or her. Instead, they simply make certain kinds of behavior off limits, regardless of the state of mind of the victim.

Invoking international human rights law, German prosecutors should aggressively pursue the Meiwes case as a crime of torture. There is no impediment to their doing so, for in German courts, European Union law and international treaties enjoy a legal status wholly equivalent to that of domestic German statutes. (The same is not true in U.S. courts, though as I have discussed in a prior column, that may be changing.)

Granted, under German law, German constitutional norms will prevail over contrary terms of treaties ratified by Germany. But in this case, the problem with prosecuting Meiwes reportedly is not that the German Constitution forbids it. Instead, the problem is merely that domestic criminal laws are difficult to apply to the unique -- to say the least -- facts of Meiwes's case.

Importantly, there is no due process issue here: Because treaties against torture were part of German law, Meiwes was fully on notice they could apply to his acts -- including his acts against a fellow German citizen.

Indeed, the criminality of Meiwes's acts was hardly subtle. Meiwes's acts, to apply the U.S. distinction, were malum in se -- evil in themselves -- and not malum prohibitum -- evil simply because society says so. It is not as if Meiwes were being indicted for obscure tax offenses; rather, he killed, dismembered, and consumed another human being.

What specific charges might German prosecutors bring? To begin, there are a number of European law claims they could raise.

First, they could bring a claim under the European Convention for the Protection of Human Rights and Fundamental Freedoms, which Germany has ratified. The Convention states in Article 3 that, "no one should be subjected to torture or to inhuman or degrading treatment or punishment." Certainly what Meiwes did to his victim fits this description.

Second, they could try to bring charges pursuant to the European Convention on the Prevention of Torture -- which entered into force in 1989 and which has been ratified by Germany. This agreement created a committee that investigates allegations of torture, primarily by conducting visits to the torture victim's place of confinement. Here, the investigation ought to be brief, as Meiwes has confessed and the nature of his crimes is clear. While the Convention itself does not contain any remedies, it does allow torture victims to bring claims before the highly respected European Court of Human Rights, which has the authority to afford "just satisfaction" to the harmed party (or his heirs).

In addition to this European law against torture, there is also international law against torture -- upon which the German prosecutors might also draw.

International law recognizes a select handful of norms, called jus cogens, that are held to form the bedrock legal principles for acceptable civilized existence. Torture is among the actions typically considered to violate these norms, and thus to go against the basic standards of acceptable human behavior.

Customary international law evolves in a variety of ways, including through the decisions of regional and international tribunals, and the writings of certain highly skilled legal experts. It also develops through the work of certain deliberative bodies such as the International Law Commission (ILC), a group of legal experts that codifies international law for the United Nations.

Several years ago, when the ILC drafted the statute for the International Criminal Court, it included torture as one of the crimes over which the Court would have jurisdiction. Unfortunately, however, torture was later removed from the list at the strident insistence of the United States. However, it remains the ILC's own view that torture remains a jus cogens violation.

Finally, German prosecutors could look to those international treaties that Germany has ratified -- and thus have been incorporated into German law --- when charging Meiwes.

The International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the "Torture Convention") applies only to actions authorized or tacitly permitted by government actors. This does not seem to have been the case with respect to Meiwes's actions.

Thus, prosecutors ought to instead try to invoke the International Convention on Civil and Political Rights (ICCPR). ICCPR Article 7 states flatly that "no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment."

Moreover, the ICCPR makes states responsible for granting all of the rights provided therein. And it does not require participation, knowledge, or authorization by a governmental actor.

These international and European law sources appropriately recognize that, when the crime is torture, the victim's consent is almost completely irrelevant. As has been exhaustibly documented in studies from around the world, torture victims will "consent" to almost anything if faced with enough pain. As a result, a victim's consent to torture can never be trusted.

Thus, the treaties and international customary law are correct not to take consent into account. A victim's consent to be tortured should not -- and does not -- eliminate the torturer's responsibility for his acts. This removes the German authorities' primary obstacle and opens the door for a more appropriate conviction and sentencing for this serious act.