Court Cases: German Prosecutor dismisses case against US commanders over Abu Ghraib

Peter Weiss, IALANA Vice-President

On February 10, 2005, the German Federal Prosecutor dismissed a complaint filed by the Center for Constitutional Rights (CCR) and four Iraqis against high ranking United States civilian and military commanders over abuses committed at Abu Ghraib prison and elsewhere in Iraq.

The initial complaint, submitted by CCR Vice-President Peter Weiss (also IALANA Vice-President) and CCR President Michael Ratner, named Secretary of Defense Donald Rumsfeld, former Central Intelligence Agency chief George Tenet and eight other officials as defendants. Recently-confirmed US Attorney General Alberto Gonzales was added to the complaint on January 31.

CCR argued that German courts had jurisdiction to consider such a complaint because German law allows war criminals to be investigated regardless of their citizenship or country of residence. The German Code of Crimes against International Law grants German Courts universal jurisdiction for the above-described crimes in Article 1, Part 1, Section 1 which states: "This Act shall apply to all criminal offenses against international law designated under this Act, 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. “German law in this area is leading the world," Peter Weiss was quoted in Frankfurter Rundschau on November 29. Michael Ratner notes that “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 German Prosecutor did not deny the possibility of jurisdiction for such crimes, but dismissed the case on the basis that such crimes should be dealt with in the countries in which the crimes are committed or of which the alleged perpetrators are nationals, and only taken up by German courts if there is a clear failure of such legal systems to act. In this case the Prosecutor determined that it is up to the United States to pursue initial legal action against the alleged perpetrators of torture and their superiors and that German prosecutors would intervene only if U.S. authorities failed to act.

However, CCR contended that there was no intention by the US to try these crimes. Peter Weiss said “It is clear that the U.S. government is not willing to open an investigation into these allegations against these officials. We view Germany as a court of last resort. We file these cases here because there is simply no other place to go.” Weiss 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.

CCR criticised the dismissal as purely political and designed to evade justice. “The prosecutor did not even discuss the materials, obvious to all, that demonstrate that the Bush administration is unwilling to prosecute anyone up the chain of command.”

Peter Weiss noted “The Prosecutor's statement that there is no reason to believe that Rumsfeld will not be prosecuted in the United States reaches a new height in the annals of incredibility."

CCR suspects that the quick dismissal of the case was a result of intense political pressure placed on the German legal system by the United States. When questioned about the case at a Pentagon press conference earlier this month, Rumsfeld said that he might refuse to attend the annual security conference in Munich because of CCR's lawsuit. He stated ominously, "whether I end up there, we'll soon know.”

CCR submitted hundreds of pages of new documents to the suit on Feb 7 when they added newlyconfirmed Attorney General Alberto Gonzales to the complaint. CCR said the prosecutor could not have even read these materials, which shows how anxious they are to please the Bush Administrationdismiss first, read later. However, CCR believes that this is only a temporary setback to the case. Michael Ratner said "We will absolutely contest this decision by launching an appeal. It is a temporary setback. We will pursue Rumsfeld and others. They should be worried; if not today, tomorrow. Just look at what happened to Pinochet."

For more information, and to add your voice to the 11,000 others who have already sent a message to the German Prosecutor, see www.ccr-ny.org