10 Nov Germany Asked to Prosecute Rumsfeld, Gonzales, Yoo (and the whole Bush Administration) (Updated)
Here we go again. According to Time.com, Germany’s chief prosecutor will be petitioned next week to prosecute Donald Rumsfeld and various U.S. officials for “abuses committed at Iraq’s Abu Ghraib prison and at the U.S. detention facility at Guantanamo Bay, Cuba.” (UPDATE: The petition was filed by the NY-based Center for Constitutional Rights and their background brief can be found here. I haven’t had time to digest it yet, but it looks pretty angry). Previous efforts to get Germany to charge Rumsfeld were turned away (see below), but this petition appears to have evidence from a former Army officer, Brig. Gen. Janis Karpinski, the one-time commander of all U.S. military prisons in Iraq. According to Time, the U.S. officials who will be listed include:
[AG] Gonzales and [CIA Director] Tenet, Undersecretary of Defense for Intelligence Stephen Cambone; former assistant attorney general Jay Bybee; former deputy assisant attorney general John Yoo; General Counsel for the Department of Defense William James Haynes II; and David S. Addington, Vice President Dick Cheney’s chief of staff. General Ricardo Sanchez, the former top Army official in Iraq; Gen. Geoffrey Miller, the former commander of Guantanamo; senior Iraq commander, Major General Walter Wojdakowski; and Col. Thomas Pappas, the one-time head of military intelligence at Abu Ghraib.
I don’t know enough about Germany’s criminal laws to know whether they have a real chance of success in convincing the prosecutor to pursue this case. I do think, unless they have some new evidence that has not yet been disclosed, e.g. that Karpinski has some new credible evidence, there is little merit to this effort to hold top US officials criminally responsible for the abuses at Abu Ghraib, at the very least.
Under the new Code of International Crimes and resultant changes to the Code of Criminal Procedure, the Federal Prosecutor General (possibly a better translation of Generalbundesanwalt than Chief Prosecutor, in that it avoids confusion with the various state chief prosecutors or Generalstaatsanwaelte) has very broad discretion on whether to initiate an investigation. It does not matter whether the offence is made out, or how good the evidence is. The reason for this is that, as regards crimes under international law (as more or less copied from the Rome Statute), German law now allows for universal jurisdiction in a very broad sense of the word. This clearly opens up the possibility of hugely embarrassing cases reaching the German authorities, and the broad discretion of the Prosecutor has been introduced in order to prevent such cases from reaching any meaningful stage. This provision for prosecutorial discretion is, incidentally, a highly unusual thing in German law, where, in principle, prosecutors have no discretion on whether to prosecute (except on narrowly defined grounds, e.g. in trivial cases). This rather suggests that this special discretion must be taken all the more seriously, and cannot be understood as referring only to such standard considerations as the… Read more »
There’s always Belgium.
Una,
Actually, no. Belgium eliminated universal jurisdiction in the wake of its ill-advised attempts to indict Sharon and others…
Kevin,
I thought Belgium did not eliminate universal jurisdiction, but universal jurisdiction in absentia. I.e., if Rumsfeld had a craving for some authentic Belgian chocolate and came on Belgian soil, then he actually could be prosecuted under the amended law.
The German prosecution seems to me is an attempt to bring the facts out in a formal way – as did Nuremberg – and also to have the risk of prosecutin be there – even if it is an infinitesimal risk as some commentators here are saying. The German prosecutor will decide what they decide – but the process of bringing this to light again and making people think about it I think is salutary. We have a penchant for denial in the United States as in other countries and the case serves the purpose at minimum of reminding us that horrible things that were done in our name do not just go away when the newscycle changes. I sense a little “torture fatigue” in the tone of some of the comments here. The fatigue I feel is more that of listening to the rationalizations and obfuscations and nuances etc of people who were willing to order and did order torture and cruel inhuman and degrading treatment. Here we are being the United States and trying to sound so virtuous to the world in all our statements and our conduct is that of any third-rate tinpot dictator. What a debasing… Read more »
Marko,
Belgium initially limited universal jurisdiction in absentia, then eliminated it completely in 2003. Belgian courts now have active and passive personality jurisdiction, and can also prosecute crimes pursuant to a treaty obligation.
Thanks!
Hello – thanks for the interesting discussions on this blog. I thought readers might be interested in the report that Human Rights Watch recently concluded on the state of universal jurisdiction in europe, particularly the chapters on Belgium and Germany (Universal Jurisdiction: The State of the Art
http://hrw.org/english/docs/2006/06/28/eca13622.htm). the exercise of prosecutorial discretion in Germany is one issue which was highlighted in the report. Best wishes, genevieve