by Chesley Hicks
Donald Rumsfeld and several other high-ranking US officials could be tried in Germany for war crimes committed in Iraq.
On Nov. 30, the New York-based Center for Constitutional Rights (CCR) and four Iraqi citizens filed a criminal complaint with the German Federal Prosecutor’s Office in Karlsruhe, Germany.
The complaint was brought under the German Code of Crimes against International Law (CCIL), enacted in 2002, which grants German courts "Universal Jurisdiction," or the right to prosecute such cases across national borders, regardless of the location of the crime or the accused. The four Iraqi plaintiffs in this case claim they were subject to sadistic physical and psychological torture at Abu Ghraib prison. None were ever charged by the US with a crime.
Names on the complaint also include former CIA director George Tenet, undersecretary of defense for intelligence Dr. Stephen Cambone, Lt. Gen. Ricardo Sanchez, Maj. Gen. Walter Wojdakowski, Maj. Gen. Geoffrey Miller, Brig. Gen. Janis, L. Karpinski, Lt. Col. Jerry L. Phillabaum, Col. Thomas Pappas, and Lt. Col. Stephen L. Jordan
The charges against the US officials include violations of the German criminal code addressing "War Crimes against Persons," which outlaws killing, torture, cruel and inhumane treatment, sexual coercion and forcible transfers. The Code holds criminally responsible those who commit such acts as well as those who induce, condone or order them. It also makes commanders liable who fail to prevent their subordinates from committing such acts.
Representatives from CCR are calling Karlsruhe "a court of last resort." US courts are not legally obligated to prosecute all cases, whereas German courts are required to prosecute any case provided there is enough evidence. Because the US has refused to join the International Criminal Court, no case can be made against US citizens there. In the face of the Bush administration’s persistent refusal to address the culpability of those in higher command during the Abu Ghraib scandal, and because the US has made its citizens immune from prosecution in Iraq, litigants have little recourse other than to take the case to Germany.
Berlin-based lawyer Wolfgang Kaleck is representing the CCR in Germany. Kaleck has done similar work, including filing genocide and torture charges against Jiang Zemin, the former president of China, and representing the victims of Argentina’s Dirty War. Aside from the well-documented evidence of abuse at Abhu Ghraib, including memos from high-ranking officials sanctioning torture, CCR lawyers maintain that their complaint is compelling to the German court because three of the defendants are present in the country: Lt. Gen. Sanchez and Maj. Gen. Wodjakoski are stationed in Heidelberg, Col. Pappas is in Wiesbaden, and Secretary of Defense Rumsfeld and others often travel to Germany. In addition, the military units that engaged in the torture are stationed in Germany–mostly in the US Army V Corps’ 205th Military Intelligence Brigade, stationed at Wiesbaden Airfield. Finally, CCR maintains that because the complainants are also victims, there is an additional duty placed on the prosecutor to investigate.
"This is a big deal," CCR president Michael Ratner says. "When you have someone in your country who’s committed these crimes you’re obliged to do something about it."
The case could prove to be a thorny issue for German Chancellor Gerhard Schroeder ,whose administration is attempting to repair relations in the wake of its bitter dispute with the US over the invasion of Iraq. Others fear "another Belgium"–referring to the White House threats last year to remove NATO headquarters from Brussels if Belgium allowed war crimes charges against Gen. Tommy Franks, then-commander of coalition forces in Iraq, to be heard there. Belgium ultimately amended its law to keep the case from going to court.
In a similar move, on Dec. 7, the US Congress approved the "Nethercutt Amendment," a provisional part of a federal spending bill that mandates withholding anti-terrorism funds and other aid from countries that refuse to grant immunity for US citizens before the International Criminal Court. Human Rights Watch characterizes the bill as "intensifying the US’s assault on international justice." The organization also observes that as evidence mounts in the public eye that the US is systematically using torture at Gauntanomo Bay, the rest of the world is growing wary of the Bush administration’s attempts to silence its critics.
Anticipating intimidation tactics or not, Ratner says that following the announcement of CCR’s case, "the German media coverage was excellent and both the national and international PR conferences were well attended." He points out that Europeans have been more exposed than Americans to images of human degradation and death wrought by the Iraq war. "The US is saying that torture is humane. It means that war is peace," he says. "But the rest of the world sees that the emperor has no clothes."
German lawyers emphasize that citizen letters of support will dramatically help this case go to court. For more info or to send an email letter see the CCR’s website: http://www.ccr-ny.org/v2/home.asp
Amnesty International on the "torture memos"
Special to WORLD WAR 4 REPORT, Dec. 10, 2004
Reprinting permissible with attribution