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German War Crimes Complaint Against Donald Rumsfeld, et al.

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Synopsis

On November 14, 2006, the Center for Constitutional Rights (CCR) filed a criminal complaint with the German Federal Prosecutor to open an investigation and, ultimately, a criminal prosecution that will look into the responsibility of high-ranking U.S. officials for authorizing war crimes in the context of the so-called “war on terror.” The complaint is brought on behalf of 12 torture victims – 12 Iraqi citizens who were held at Abu Ghraib prison and one Guantánamo detainee – and is being filed by CCR, the International Federation for Human Rights (FIDH), the Republican Attorneys' Association (RAV), and others, all represented by Berlin Attorney Wolfgang Kaleck.

The complaint is related to a 2004 complaint that was dismissed, but the new complaint is filed with much new evidence, new defendants and plaintiffs, a new German Federal Prosecutor and, most important, under new circumstances that include the resignation of Donald Rumsfeld as Secretary of Defense and the passage of the Military Commissions Act of 2006 in the U.S., which attempts to grant officials retroactive immunity from prosecution for war crimes.

Status

In November 2007, CCR, FIDH, and RAV appealed the decision of the German Federal Prosecutor not to open an investigation. On April 21, 2009, the Stuttgart Regional Appeals Court dismissed the appeal. See the original and the translated Court decision attached below. A motion for reconsideration was filed on May 25, 2009.

Description

Executive Summary of the Complaint’s Allegations:

From Donald Rumsfeld on down, the political and military leaders in charge of ordering, allowing and implementing abusive interrogation techniques in the context of the “War on Terror” since September 11, 2001, must be investigated and held accountable. The complaint alleges that American military and civilian high-ranking officials named as defendants in the case have committed war crimes against detainees in Iraq, Afghanistan and in the U.S.-controlled Guantánamo Bay prison camp.

The complaint alleges that the defendants “ordered” war crimes, “aided or abetted” war crimes, or “failed, as civilian superiors or military commanders, to prevent their commission by subordinates, or to punish their subordinates,” actions that are explicitly criminalized by German law. The U.S. administration has treated hundreds if not thousands of detainees in a coercive manner, in accordance with “harsh interrogation techniques” ordered by Secretary Rumsfeld himself that legally constitute torture and/or cruel, inhuman and degrading treatment, in blatant violation of the provisions of the 1949 Geneva Conventions, the 1984 Convention Against Torture and the 1977 International Covenant on Civil and Political Rights – to all of which the United States is a party. Under international humanitarian treaty and customary law, and as re-stated in German law, these acts of torture and/or cruel, inhuman or degrading treatment constitute war crimes.

The U.S. torture program that resulted in war crimes was aided and abetted by the government lawyers also named in this case: former Chief White House Counsel (and current Attorney General) Alberto R. Gonzales, former Assistant Attorney General Jay Bybee, former Deputy Assistant Attorney General John Yoo, General Counsel of the Department of Defense William James Haynes, II and Vice President Chief Counsel David S. Addington. While some of them claim to merely have given legal opinions, those opinions were false or clearly erroneous and given in a context where it was known and foreseeable to these lawyers that torture would be the result. Not only was torture foreseeable, but this legal advice was given to facilitate and aid and abet torture as well as to attempt to immunize those who tortured. Without these opinions, the torture program could not have occurred. The infamous “Torture Memo” dated August 1, 2002, is the key document that redefined torture so narrowly that such classic and age old torture techniques as water-boarding were authorized to be employed and were employed by U.S. officials against detainees.

Why Germany?

The complaint is being filed under the Code of Crimes against International Law (CCIL), enacted by Germany in compliance with the Rome Statute creating the International Criminal Court in 2002, which Germany ratified. The CCIL provides for “universal jurisdiction” for war crimes, crimes of genocide and crimes against humanity. It enables the German Federal Prosecutor to investigate and prosecute crimes constituting a violation of the CCIL, irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved.

No international courts or personal tribunals in Iraq were mandated to conduct investigations and prosecutions of responsible U.S. officials. The United States has refused to join the International Criminal Court, thereby foreclosing the option of pursuing a prosecution before it. Iraq has no authority to prosecute. Furthermore, the U.S. gave immunity to all its personnel in Iraq from Iraqi prosecution. All this added to the United States’ unquestionable refusal to look at the responsibility of those of the very top of the chain of command and named in the present complaint, and the recent passage of the Military Commissions Act of 2006 (see below) aimed at preventing war crimes prosecutions against Americans in the U.S., German courts are seen as a last resort to obtain justice for those victims of abuse and torture while detained by the United States.

The Plaintiffs in the Case:

The complaint is being filed on behalf of 12 Iraqi citizens who were victims of gruesome crimes at the infamous Abu Ghraib prison. They were severely beaten, deprived of sleep and food, sexually abused, stripped naked and hooded, and exposed to extreme temperatures.

Another plaintiff in the case is Mohammed al Qahtani, a Saudi citizen detained at Guantánamo since January 2002. At Guantánamo, Mr. al Qahtani was subjected to a regime of aggressive interrogation techniques, known as the “First Special Interrogation Plan,” that were authorized by U.S. Secretary of Defense Donald Rumsfeld and implemented under the supervision and guidance of Secretary Rumsfeld and the commander of Guantánamo, defendant Major General Geoffrey Miller. These methods included fifty days of severe sleep deprivation and 20-hour interrogations, forced nudity, sexual humiliation, religious humiliation, physical force, prolonged stress positions and prolonged sensory over-stimulation.

None of these plaintiffs – and the hundreds of other detainees subjected to similar abuses – has seen justice, and none of those who authorized these techniques at the top of the chain of command have been held liable for it, or even seriously and independently investigated.

The Defendants in the Case:


The U.S. high-ranking officials charged include:

  • Former 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
  • Colonel Thomas Pappas
  • Major General Barbara Fast
  • Colonel Marc Warren
  • Former Chief White House Counsel Alberto R. Gonzales
  • Former Assistant Attorney General Jay Bybee
  • Former Deputy Assistant Attorney General John Yoo
  • General Counsel of the Department of Defense William James Haynes, II
  • Vice President Chief Counsel David S. Addington

Timeline

On November 14, 2006 the complaint was filed with the German Federal Prosecutor.

On April 27, 2007, Germany's Federal Prosecutor announced she would not proceed with an investigation.

In November 2007, CCR, FIDH, and RAV appealed the decision.

On April 21, 2009, the Stuttgart Regional Appeals Court dismissed the appeal.

On May 25, 2009, a motion for reconsideration was filed to the Appeals Court.