Donald Rumsfeld "war Criminal"?

[KennyM]

taken from
http://www.ccr-ny.org/v2/legal/september_11th/sept11Article.asp?ObjID= 1xiADJOOQx&Content=472


Synopsis

In a historic effort to hold high-ranking U.S. officials accountable for brutal acts of torture including the widely publicized abuses carried out at Abu Ghraib, on Tuesday November 30, 2004, the Center for Constitutional Rights (CCR) and four Iraqi citizens filed a criminal complaint with the German Federal Prosecutor’s Office at the Karlsruhe Court, Karlsruhe, Germany. Under the doctrine of universal jurisdiction, suspected war criminals may be prosecuted irrespective of where they are located. The Prosecutor refused to take the case on the grounds that they believed the United States would investigate the matter. CCR is appealing that decision.

description and status

The four Iraqis were victims of gruesome crimes including severe beatings, sleep and food deprivation, hooding and sexual abuse. (Further details of the treatment of the complainants are attached.)

CCR President Michael Ratner, who traveled to Berlin to file the complaint, said "From Donald Rumsfeld on down, the political and military leaders in charge of Iraq policy must be investigated and held accountable. It is shameful that the United States of America, a nation that purports to set moral and legal standards for world, refuses to seriously investigate the role of those at the top of the chain of command in these horrible crimes." "Indeed," Ratner added "the existence of 'torture memos' drafted by administration officials and the authorization of techniques that violated humanitarian law by Secretary Rumsfeld, Lt. General Sanchez and others make clear that responsibility for Abu Ghraib and other violations of law reaches all the way to the top."

The U.S. officials charged include Secretary of Defense Donald Rumsfeld, Former CIA Director George Tenet, Undersecretary of Defense for Intelligence Dr. Stephen Cambone, Lieutenant General Ricardo Sanchez, Major General Walter Wojdakowski, Major General Geoffrey Miller, Brigadier General Janis L. Karpinski, Lieutenant Colonel Jerry L. Phillabaum, Colonel Thomas Pappas, and Lieutenant Colonel Stephen L. Jordan.

The criminal complaint was brought under the German Code of Crimes against International Law (CCIL) and seeks an investigation into war crimes allegedly carried out by high ranking United States civilian and military officials, including the incidents which occurred in Iraq.

CCR is represented in Germany by Wolfgang Kaleck, a Berlin-based lawyer who has been involved in similar efforts on behalf of victims of the Argentine "dirty war."

The charges include violations of the German Code, "War Crimes against Persons," which outlaws killing, torture, cruel and inhumane treatment, sexual coercion and forcible transfers. The Code makes criminally responsible those who carry out the above acts as well as those who induce, condone or order the acts. It also makes commanders liable, whether civilian or military, who fail to prevent their subordinates from committing such acts.

The German Code of Crimes against International Law grants German Courts what is called Universal Jurisdiction for the above-described crimes. Article 1, Part 1, Section 1 states: "This Act shall apply to all criminal offenses against international law designated under this Act, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany." This means that those who commit such crimes can be prosecuted wherever found: they, like pirates of old, are considered enemies of all humankind.

The German CCIL places a prosecuting duty on the German prosecutor for all crimes that constitute violations of the CCIL, irrespective of the location of the person, the crime, or the nationality of the persons involved. Complaints can be filed with the German prosecutor to seek an investigation of specific crimes, as was done here. While outside parties can bring complaints to the attention of a prosecutor in the U.S., there is no duty to prosecute such complaints and they do not become part of an official court procedure. In Germany, the prosecutor is under a duty to determine if an investigation and indictments are warranted; if he fails to do so, the complainants can appeal to the court.

According to CCR lawyers, in this case there are particularly compelling reasons the prosecutor should exercise his duty. Three of the defendants are present in Germany: Lt. General Sanchez and Major General Wodjakoski are stationed in Heidelberg, and Colonel Pappas is in Wiesbaden. Others, such as Secretary of Defense Donald Rumsfeld, often travel to Germany. In addition, the military units that engaged in the illegal conduct are stationed in Germany. Although such links to Germany are unnecessary for the prosecutor to fulfill his duty, when the alleged perpetrators are actually on German soil the duty to investigate is even stronger. Their presence in Germany gives the prosecutor an important avenue to investigate these cases. Last, since the complainants are also victims, this places an additional duty on the prosecutor to investigate.

"We view Germany as a court of last resort," said CCR Vice President Peter Weiss, "We file these cases here because there is simply no other place to go. It is clear that the U.S. government is not willing to open an investigation into these allegations against these officials." Weiss also pointed out that Congress has failed to seriously investigate the abuses and none of the various commissions appointed by the military and the Bush administration has been willing to look unflinchingly up the chain of command to consider what criminal responsibility lies with the military and political leadership. Instead, they asserted that the abuses and torture were the exclusive responsibility of rogue lower-level military personnel.

There are no international courts or courts in Iraq that can carry out investigations and prosecutions of the U.S. role, either: the United States has refused to join the International Criminal Court, thereby foreclosing the option of pursuing a prosecution in international courts; Iraq has no authority to prosecute; and the U.S. gave immunity to all its personnel in Iraq from Iraqi prosecution. Says Weiss, "We are doing what is necessary and expected when other systems of justice have failed: we are asking the German prosecutors, who have available one of the most advanced universal jurisdiction laws in the world, to begin an investigation that is required under its law."

February 10, 2005 Prosecutor's Decision

On February 10, 2005, German prosecutor Nehm issued a decision not to take the case. He dismissed the complaint on the ground that he believed that the United States, which has primary jurisdiction for prosecuting the alleged crimes, would investigate the matter. Nehm maintains that "there are no indications that the authorities and courts of the United States of America are refraining, or would refrain, from penal measures as regards the violations described in the complaint". However, the case for the application of secondary jurisdiction by Germany had been made in the extensive materials submitted to the prosecutor's office on November 30, 2004 and January 25, 2005

However, CCR respectfully but emphatically disagrees. CCR belives that the case for the application of secondary jurisdiction by Germany has been made in the extensive materials submitted to on November 30, 2004 and January 25, 2005.

CCR found it particularly astonishing that the prosecutor's decision made no reference whatsoever to the 11 page affidavit by Professor Scott Horton submitted to him last January. Professor Horton was asked to render his expert opinion on the likelihood on whether or not the defendants named in the complaint would be prosecuted in the United States. His opinion, supported by a detailed examination of relevant legal texts and of events which occurred subsequent to the revelation of the Abu Ghraib crimes, was a categorical denial that any such prosecution of the defendants would take place.

On March 10, 2005, a petition for re-consideration of the decision to dismiss the case was filed within the prosecutor's office in Karlsruhe. In the demand for re-consideration, German attorney Wolfgang Kaleck asked the Prosecutor to refer the case to the German Supreme Court. On May 2nd the German prosecutor Nehm dismissed this demand without even addressing the issues of jurisdiction raised. In addition, an appeal to the regional high court was also filed. Our German counsel asked that the jurisdictional issue of the case be decided by German's constitutional court. Expert opinions on the issue of secondary jurisdiction by Professor Bothe and Dr. Fisher-Lescano from the University of Frankfort, who are experts in international public law, have been submitted to the regional high court on April 15, 2005. See the affidavit attached (in German version only).

In this expert opinion, the scholars demonstrate that under treaty and customary international law, every State has the power and the duty to prosecute authors of war crimes, crimes against humanity and genocide. This universal competence is only restrained when another State is willing (and able) to prosecute the criminals, which is not the case here. Also, the German experts confirm that there is no immunity under international law for authors of such grave violations. They further show that according to the German Constitution (Articles 100 and 101), the German Constitutional Court has the duty to make a decision in the present case and to decide whether or not, under international law, the German courts have competence to hear the complaint.

September 13th, 2005 Higher Regional Court's Decision

On September 13th, 2005, Stuttgart's Higher Regional Court (Oberlandesgericht) - "5th Chamber for Criminal Matters"- dismissed the appeal against the decision of the Attorney General at the Federal Court from February 10th, 2005 as inadmissible. The Higher Regional Court stated that the petition is inadmissible on the ground that the prosecutor has, according to §153 f Code of Criminal Procedure, an almost complete discretionary power to dismiss the complaint. See the decision of the Court attached.

Also posted here:

http://www.commondreams.org/news2005/0210-06.htm

[xmasdale]

CCR have sent us this


Dear CCR Supporter,

If Donald Rumsfeld is going to be held accountable for authorizing torture and other human rights abuses, we need your help .

Today, CCR filed a criminal complaint in Germany under their universal jurisdiction law charging Rumsfeld, Gonzales and other high-ranking officials in the Bush administration with war crimes . The complaint was filed on behalf of 11 former detainees who were victims of severe beatings, sleep and food deprivation, hooding and sexual abuse in Abu Ghraib, and one detainee at Guantánamo Bay subjected to torture and abuse there under Rumsfeld’s specific authorization.

By clicking on the link here, you can send a letter to the German Prosecutor and show your support for justice for torture victims and accountability for perpetrators.

WHY RUMSFELD?
CCR has reviewed new evidence and documentation that lays the responsibility for U.S. torture program directly at Rumsfeld’s feet. Rumsfeld himself authorized severe “special interrogation techniques” and other abusive, unlawful treatment of detainees. Rumsfeld’s resignation last week means that he can no longer claim immunity from international prosecution as a sitting government official.

WHY GERMANY?
Germany appears to be the court of last resort for a war crimes prosecution of Rumsfeld because the United States has tried to close the door to accountability. For example, the United States has failed to take any action to investigate high-level involvement in the torture program; Congress passed the Military Commissions Act last month, which tries to shield American officials from being prosecuted for war crimes here; and the United States has refused to join the International Criminal Court and has barred the Iraq from prosecuting U.S. officials in that country.

On the other hand, as a signatory to the treaty establishing the International Criminal Court, German law recognizes the principle of universal jurisdiction: that grave breaches of international law like the U.S. torture program authorized by Rumsfeld, must be investigated and, where called for, prosecuted no matter where the crime was committed or the nationality of those involved. CCR has filed this complaint in Germany because we represent torture victims who have yet to see justice, the truth has yet to be investigated and the United States is evading accountability.

Together we can make a difference. Stand with our plaintiffs who include Nobel Peace Prize winners and the former United Nations Special Rapporteur on Torture and tell the German Prosecutor that you support opening an investigation. With your support, we can show the world community that Americans think torture is immoral and illegal, and that its perpetrators -- wherever they are found -- must be held accountable. Act now.


Sincerely,

Vincent Warren
Executive Director