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Rumsfeld, Others May Be Investigated, Tried by German Court

by Jessica Azulay

In a daring application of a new German law, a US-based group has asked German prosecutors to probe and indict 10 top American officials for tortures committed in Iraq -- crimes from which they have thus far been insulated.

Dec. 1, 2004 – Saying they had exhausted all other options, four Iraqis and a human rights organization filed a request with German authorities yesterday in an attempt to initiate an investigation and prosecution of top US officials for their connection to torture and abuse of detainees in Iraq.

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Spokespeople for the Center for Constitutional Rights (CCR), a New York-based legal and human rights organization, said at a press conference Tuesday that they had chosen Germany as a last resort after the US Justice Department failed to investigate high-ranking officials for their involvement in war crimes.

According to CCR, the four Iraqi plaintiffs in the filing -- Ahmed Hassan Mahawis Derweesh, Faisal Abdulla Abdullatif, Ahmed Salih Nouh and Ahmed Shehab -- are survivors of US detention in Iraq and had undergone "severe beatings, sleep and food deprivation, hooding and sexual abuse."

With the help of German lawyer Wolfgang Kaleck, CCR and the Iraqi plaintiffs are asking the Federal Prosecutor’s Office at the Karlsruhe Court in Karlsruhe, Germany to investigate ten US officials including Secretary of Defense Donald Rumsfeld, former CIA head George Tenet and Lieutenant General Ricardo S. Sanchez, the Army’s top commander in Iraq at the time of the plaintiffs’ torture. A German law passed in 2002 gives courts there authority to investigate and prosecute suspected war criminals regardless of where the alleged crimes were committed, where the suspects are from or where they currently reside.

An Iraqi law established by a US occupation authority ruling called "Order 17" maintains immunity for Americans who commit war crimes in Iraq, protecting them from the reach of Iraqi courts.

In their 170-page complaint, the plaintiffs assert that torture is a crime of a universal nature -- one that the international community is authorized to prosecute and punish no matter where or by whom the crime is committed.

Spokespeople for CCR said Tuesday that that they chose to pursue the case in Germany because the US government was not investigating or prosecuting any top ranking officials. Additionally, the United States has refused to join the International Criminal Court, so charges could not be brought there either.

An Iraqi law established by a US occupation authority ruling called "Order 17" maintains immunity for Americans who commit war crimes in Iraq, protecting them from the reach of Iraqi courts.

"We think there’s a significant possibility of holding this case in Germany particularly because there’s nowhere else in the world it can be done and secondly because of the… links to Germany of not only of the defendants but the actual brigades that were involved in the torture at Abu Ghraib," said CCR President Michael Ratner during a telephone press conference with reporters.

Of the ten defendants named in the complaint, three are currently stationed in Germany: Sanchez, Major General Walter Wodjakoski and Colonel Thomas M. Pappas, Brigade Commander of the 205th Military Intelligence Brigade.

The plaintiffs will now wait while the German prosecutor decides whether or not to pursue an investigation. There was no indication at press time whether or not German authorities would take up the case.

Additionally, the Pentagon did not return calls for comment. In the past, military officials have said they are holding accountable those responsible for the mistreatment of detainees in Iraq. Since the shocking pictures of abuse and torture of Iraqi prisoners at the hands of American soldiers were released earlier this year, the Bush administration has long maintained that the soldiers involved acted without the knowledge or consent of their superiors.

Nevertheless, a series of investigations conducted by the US government and military since the most publicized crimes were committed have implicated commanding officers and suggested varying degrees of negligence on the part of Pentagon-level officials. However, each report has stopped short of demanding the military thoroughly investigate or prosecute anyone not suspected of direct involvement in acts of abuse or torture.

Critics of the administration’s human rights record have called for further independent investigation into the role of higher ranking officials and have long asserted there is strong evidence that military leaders were directly and indirectly responsible for the illegal treatment of detainees in Iraq as well as in Afghanistan and at the US-run detention center at Guantánamo Bay, Cuba.

This is not the first time a European country has been asked to investigate and try top US officials for war crimes. Iraqi families had previously filed cases in Belgium against General Tommy Franks, who was then in charge of US Central Command, for allegedly authorizing the use of cluster bombs in civilian areas during the 2003 invasion of Iraq. Complaints had also been filed against high-ranking US officials for alleged war crimes committed against Iraqis during the 1991 Gulf War.

Though Belgium, which at the time had one of the strongest universal jurisdiction codes, did not take up the cases, the country was pressured by the US to repeal its laws allowing prosecutors there to investigate and try suspected international criminals for alleged crimes perpetrated by non-Belgians, against non-Belgians, or in circumstances without substantial links to Belgium.

According to Luc Reydams, a Political Science professor at Notre Dame and author of Universal Jurisdiction: International and Municipal Legal Perspectives, Germany’s 2002 international law statute may be headed for the same fate as Belgium’s law. Reydams told The NewStandard that while German prosecutors have successfully tried war criminals from the former Yugoslavia who had fled to Germany, there is not yet precedent for the prosecution of alleged war criminals with no strong links to Germany.

Reydams fears that without a solid legal history, Germany’s untested law will not withstand pressure from the US.

"I’m fully sympathetic with the efforts of the Center for Constitutional Rights to go after the leadership," Reydams said. "But I think from a strategic point of view of a human rights organization it’s wrong to use the German law for the first time against the most powerful nation. It will kill the law, I think. The Center for Constitutional Rights knows what it does. They have very creative entrepreneurial lawyers. This is not a frivolous case… But I’m afraid it’s going to end badly. I think it’s going to be the end of the statute altogether."

Though the German law gives prosecutors little wiggle room when deciding to follow through on this type of case, Reydams sees at least one out for German authorities. Reydams says that the prosecutor has discretion whether or not to prosecute the case if, among other loopholes, the alleged crime is being or has been prosecuted by the suspect’s home country.

Reydams believes that since the US has conducted some investigation, however limited, into the abuse and torture of Iraqi prisoners, and since some soldiers have been tried and punished, "this can be a way out for the prosecutor to save his face and to save US German diplomatic relations from deteriorating."

If the prosecutor declines to open the case, the plaintiffs will have the option of appealing to a German court.

CCR Legal Director Jeffrey Fogel conceded it is unlikely that proceedings in Germany will lead to the extradition or imprisonment of those accused, even if the German prosecutor goes forward with the case. He said it would be hard to imagine the United States agreeing to extradite top US officials to Germany for trial or jail sentences.

"If the investigation and is thorough one and is a public one, I think it’s most important that the facts come out rather than a punishment be made." Fogel said. "We’d like to see a real investigation that went up the chain of command and assigned responsibility to the highest possible level because that’s the only way these things are going to change."

To view the English version of the complaint, click here.
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The NewStandard ceased publishing on April 27, 2007.

Jessica Azulay is a staff journalist.

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