Call on the German Prosecutor to Investigate Rumsfeld for War Crimes

January 24th, 2005 - by admin

The Center for Constitutional Rights – 2005-01-24 22:20:37

(January 22, 2005) — The Center for Constitutional Rights and four Iraqis who were tortured in US custody filed a complaint on November 30 with the German Federal Prosecutor’s Office against high ranking United States civilian and military commanders over the abuses at Abu Ghraib prison and elsewhere in Iraq.

We are asking the German prosecutor to launch an investigation because the U.S. government is unwilling to open an independent investigation into the responsibility of these officials for war crimes and the US has refused to join the International Criminal Court. CCR and the Iraqi victims brought this complaint to Germany as a court of last resort. Several of the defendants are stationed in Germany.

The Pentagon and the US government are taking this suit very seriously. According to the Deutsche Press Agency, Donald Rumsfeld has warned Germany that he will not attend an upcoming security conference in Munich if there is any indication of an investigation going forward, and Chief Pentagon Spokesman Larry Di Rita, calling the complaint “frivolous,” said that he raised the case with the State Department: “State is engaged in this. Obviously, it’s something that we’re focused on and very concerned with” Please encourage the German prosecutor not to bow to US pressure.

Defendants in the suit include:

• Secretary of Defense Donald H. Rumsfeld,
• former CIA Director George Tenet,
• Lt. General Ricardo S. Sanchez,
• Major-General Walter Wojdakowski,
• Brig.-General Janis Karpinski,
• Lt.-Colonel Jerry L. Phillabaum,
• Colonel Thomas M. Pappas,
• Lt.-Colonel Stephen L. Jordan,
• Major-General Geoffrey Miller, and
• Undersecretary of Defense for Intelligence Stephen Cambone.

German law allows German courts to prosecute for killing, torture, cruel and inhumane treatment, forcible transfers and sexual coercion such as occurred at Abu Ghraib. The world has seen the photographs and read the leaked “torture memos”.

We are doing what is necessary when other systems of justice have failed and seeking to hold officials up the chain of command responsible for the shameful abuses that occurred.

Synopsis of Charges
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.”

Please join our effort! Link to the letter in English PDF file. The German Prosecutor has discretion to decide whether to initiate an investigation.

It is critical that he hear from you so he knows that people around the world support this effort.
Click here to sign petition.