Litigating Against Torture: The German Prosecution – Draft Book Chapter in The Torture Debate in America – with Peter Weiss – PDF

2004 Litigating Against Torture: The German Prosecution

On November 30, 2004 the Center for Constitutional Rights (CCR)1, a U.S. based human rights legal organization, filed a criminal complaint in Germany seeking an investigation of and prosecution against ten high level U.S. officials allegedly involved in the torture and inhumane treatment of detainees in Iraq.2 Complainants were CCR as well as four Iraqis who had been brutally tortured. The 160-page complaint was filed with the prosecutor in Karlsruhe, Germany. It charged Secretary of Defense Donald Rumsfeld, former CIA Director George Tenet, Lt. General Ricardo Sanchez, the former Commander of U.S. forces in Iraq, and seven other high-ranking officials3 and officers with war crimes under the German Code of Crimes under International Law (CCIL.)4 CCR later added an eleventh defendant, U.S. Attorney General Alberto Gonzales, subsequent to his admission at his confirmation hearing that he had been involved with drafting and approving legal memoranda authorizing torture and inhumane treatment of detainees.

CCR decided to bring this case in a national court of a foreign state because there was no U.S. or international forum where the criminal responsibility of high U.S. officials for war crimes could be investigated and prosecuted. Although it would have been preferable to prosecute war crimes domestically or in an international court, that was not possible. In the United States there is no legal procedure under which victims can file criminal complaints; only prosecutors, who have complete discretion whether or not to do so, can file such cases. While a victim can bring a crime to the attention of a prosecutor, the prosecutor can ignore any suggestion and there is no court remedy for the victim. The situation is different in many European countries; victims can initiate criminal proceedings and appeal to a court if the prosecutor refuses to go forward. Although the Bush administration has brought some prosecutions for the torture that has occurred in Iraq, these have all been against lower-level soldier; no proceedings have been brought against those in the extended chain of command. We at CCR believe high officials were and are responsible for the crimes.

None of the many U.S. government investigations of the torture and abuse that occurred in Iraq have undertaken any serious investigation of the chain of command. In fact, the investigations were run by the Department of Defense, CIA and other agencies deeply involved in the war crimes, and while they have documented so many incidents of torture that investigators have called the use of torture “almost routine,” nowhere has responsibility been laid on top officials. This is despite clear evidence in the public record that Secretary of Defense Rumsfeld, General Sanchez and others authorized many of the illegal techniques used against detainees, and failed in their duty to prevent numerous war crimes, which they knew or should have known were occurring.1

In thinking about bringing suit outside of the United States CCR also looked at international courts. However, the United States has refused to ratify the treaty creating the International Criminal Court and there is no other international court with jurisdiction over these alleged war crimes. For these reasons, CCR was compelled to turn to the courts of other states with universal jurisdiction over war crimes.

In exploring the courts of other states, we soon recognized that Germany, under its 2002 Code of Crimes Against International Law (CCIL), had an extremely good war crimes law. The German CCIL more or less parallels the definition of crimes set forth in the statute of the International Criminal Court. The CCIL makes criminal grave breaches of the Geneva Conventions as well as violations of the customary laws of war. Under German law, torture and inhumane treatment of detainees constitute war crimes.

In addition, the German code covers both war crimes committed directly, and those committed by the superior who orders the crime. The German code makes liable superiors, whether military or civilian, who knew or had reason to know that a subordinate was about to commit a crime and failed to prevent it; it also imposes liability if the superior, knowing about a war crime, failed to punish it.

A concrete example will help explain the law. If a U.S. soldier tortures or abuses a detainee as happened at Abu Ghraib—for example, threatening detainees with muzzled dogs—that soldier has committed a war crime under both U.S. law and the German code. If a soldier was ordered to commit that crime or authorized to use the dog by a superior, that superior would also be guilty of war crimes under both U.S. and German law. In fact, we know that authorization to use dogs against detainees was given for Guantanamo by Secretary of Defense Rumsfeld, and we know Lt. General Sanchez also authorized the use of dogs for interrogations in Iraq. Under the German code, if it were proven that the superiors directly ordered the use of dogs against detainees, both Rumsfeld and Sanchez would have direct responsibility for war crimes, and could be punished as perpetrators by a term of imprisonment in Germany.

Superiors such as Rumsfeld and Sanchez would also be guilty of war crimes if it could be proved they were aware of torture and abuse like that at Abu Ghraib and either failed to prevent the crimes or failed to bring the guilty to justice. Again, in fact, we know that the Red Cross complained often to high-level U.S. officials about the abuse and torture of detainees, yet nothing was done by these officials to stop the crimes or punish the perpetrators. In these circumstances, the officials would also be guilty of what the German code calls “indirect responsibility” for war crimes.

This definition of war crimes in the German Code is a traditional one in the law and would certainly encompass the conduct carried out by U.S. soldiers and their superiors in detention facilities in Afghanistan, Guantanamo and Iraq as well as secret CIA detention facilities around the world. But it was not just the definition of the crimes which made the German code interesting to the lawyers at CCR. It was another part of the code called the universal jurisdiction provision. Under that section the German courts are given what lawyers call universal jurisdiction over war crimes, meaning that a prosecutor and the courts of Germany can investigate, charge and convict persons or war crimes no matter where in the world the crimes are committed, no matter by whom they are committed. The crime, the perpetrator and the victim need have no connection to Germany.

A recent example of the exercise of universal jurisdiction was the Pinochet case in Spain. Pinochet was responsible for acts of torture in Chile against Chileans. Despite this, a Spanish court indicted him under Spanish law that gave Spain universal jurisdiction over acts of torture and genocide no matter where in the world such acts were committed. Although Chile had refused to extradite him to Spain, when he traveled to England he was arrested. If not for the finding that Pinochet was incompetent to stand trail, he would have been sent to Spain and tried there for the crime of torture.

Universal jurisdiction for certain heinous crimes is not something new in law. It began with piracy; a pirate could be tried in any country of the world. In the 19th century the concept was extended to cover the crimes of slave traders, in the 20th century to cover acts of genocide, war crimes and torture. The Geneva conventions require every country that is a party to the conventions to seek out and punish alleged war criminals without any geographical limitation. The underlying theory is that certain very serious crimes are a concern of the entire world; the perpetrators of such crimes are considered to be “enemies of all mankind” and can be brought to justice wherever found. However, the United States, as its power has grown, has become less willing to support universal jurisdiction in any forum or court where it could not determine again whom criminal prosecutions could be initiated. U.S. officials wanted to ensure that no U.S. soldiers or officials, no matter what crimes they may have committed, would wind up in the dock of a foreign country. The hostility of the United States to universal jurisdiction, whether exercised by the International Criminal Court or national courts of states, has grown in recent years and is now practically a principle of U.S. political discourse.

Nonetheless, CCR decided to bring suit in Germany, and found support in a provision of the German law mandating investigations of war crimes if a case has links to Germany. The U.S. military has major bases in Germany. The 205th intelligence brigade, the very brigade involved in the torture and abuse at Abu Ghraib, is stationed at Wiesbaden. The head of that military brigade, U.S, Army Col. Pappas, who was allegedly involved in the war crimes, is stationed there as well. Lt. General Ricardo Sanchez and his deputy Maj. Gen.Walter Wojdakowski, the leadership of the Army’s V Corps, the occupying force in Iraq during what was apparently the worst of the Abu Ghraib scandal, are all stationed in Heidelberg. This means not only that a German prosecutor could do a genuine investigation of the war crimes, but also investigate some of the main alleged perpetrators who were living in Germany. Under the German code it is obligatory to investigate and prosecute alleged war criminals living on German soil.

Germany, thus, was ideal for our case, and CCR named as defendants, among others, Sanchez, Wojdakowski and Pappas. We also gave the German prosecutor sufficient uncontested evidence in the 160-page complaint to ensure that the criminality of the defendants could be demonstrated with little further investigation. Many of the facts indicating guilt are part of the public record.

We were, however, aware that for a prosecutor in Germany to exercise his authority to investigate a universal jurisdiction case, he must find that the state having “primary jurisdiction” is “unwilling” to do its own investigation. As U.S. officials committed the alleged crimes, it was the United States that had this “primary” jurisdiction and would be looked to first to prosecute the crimes. Therefore, it was critical for us to demonstrate that the U.S. was “unwilling” to investigate and prosecute the high-level officials we wanted brought to justice.

It seemed obvious to us, in relation to allegations of torture and war crimes, that the main strategy of the Bush administration had been to blame lower level-soldiers, call them bad apples and focus attention on their trials. In press briefings and statements, the administration claimed that those up the chain of command and civilians in the Pentagon such as Secretary of Defense Rumsfeld were not involved in the torture and abuses.

The issue of “unwillingness” to investigate on the part of the state holding primary jurisdiction became the central issue in the case. We used the declaration of a prominent U.S. lawyer and international law expert, Scott Horton, to bolster our case. 5 Horton, Chair of the Committee of International Law of the Association of the Bar of the City of New York, had been visited in May 2003, a year before the photographs of Abu Ghraib were revealed, by a delegation of senior military lawyers who advised him that policy decisions taken in Rumsfeld’s office would lead to the abuse of detainees. Horton’s declaration in our case demonstrated conclusively that no investigation of the officials named in our lawsuit would occur in the United States and that, in fact, there was a cover-up of high level involvement in war crimes. As Horton said to the German prosecutor:

“I have formed the opinion that no such criminal investigation or prosecution would occur in the near future in the United States for the reason that the criminal investigative and prosecutorial functions are currently controlled by individuals who are involved in the conspiracy to commit war crimes.”

Horton’s powerful declaration detailed the basis for his conclusion that the high Bush administration officials are involved in a conspiracy to commit war crimes and cover them up. First, Horton pointed out that the Department of Defense was under the control of defendant Secretary of Defense Rumsfeld who therefore had “effective immunity.” Second, he found that the criminal investigations pursuant to army regulations look only down the chain of command and not up, and thus eliminate any “meaningful inquiry into the criminal misconduct of the defendants.” Third, he found that the criminal investigations were influenced from above with the “intention of producing a `whitewash’ exculpating those up the chain of command.” Fourth, he found that the responsibility of the legislative branch to investigate had been abdicated, since Senator John Warner, chairman of the Senate Armed Services Committee, “was threatened [by other Republicans] with sharp political retaliation if he carried through on his plans to conduct real hearings.” Fifth, he found that the Attorney General controls war crimes prosecutions under the U.S. War Crimes Act and that since former Attorney General Ashcroft was “complicit in a scheme for the commission of war crimes” he had not undertaken a criminal investigation. Alberto Gonzales, the current Attorney General, Horton said, was the “principal author of a scheme to undertake war crimes” and was motivated in writing his January 25, 2002 memo by a fear of prosecution for war crimes, which he sought to evade in that memo.

In filing the case in Germany we were not unaware of the power of the Bush administration to bludgeon countries into dropping such prosecutions. When a case regarding the Iraq war was filed in Belgium against U.S. General Tommy Franks, the United States threatened to pull NATO headquarters out of Brussels unless Belgian law were changed to exclude such prosecutions. Belgium complied. Our hopes were that the Bush administration could not use similar tactics on the more powerful Germany and that the case was incredibly strong—much of Europe understood that high officials in the U.S. had authorized torture.

We do not know what occurred behind the scenes. We do know that Rumsfeld showed his displeasure with the lawsuit and attempted to bully Germany. He and the Pentagon announced that Rumsfeld would not attend the important annual Munich Security conference as long as the lawsuit was pending. This and probably other threats had the desired effect. Despite the strength of the case, a day prior to the Munich conference, the prosecutor dismissed the case and Rumsfeld went to Munich.

In dismissing the case the prosecutor did not dispute that the criminal complaint had set forth allegations of war crimes by high-level officials. The key issue he focused on was whether or not the Bush administration was “unwilling” to investigate and prosecute the violations in the complaint. He concluded that “there are no indications that the authorities and courts of the United States of America are refraining from, or would refrain, from penal measures as regards violations in the complaint.” In support he mentioned proceeding against low-level soldiers in the United States.

The prosecutor’s conclusion defies logic and the evidence presented. We are taking all legal avenues against this decision. First, we have asked the prosecutor to reconsider his decision. Considering that it was more than likely a politically motivated result, though, it is unlikely we will get him to modify his conclusion. We are at the same time appealing to the court on the basis that the prosecutor’s decision that the Bush administration is willing to investigate and prosecute high level officials is completely contrary to all the evidence. We believe we will eventually prevail.

As the months and possibly years pass, what we have demonstrated in this case will become even more obvious: U.S. officials have committed war crimes and there is conspiracy within the Bush administration to ensure that none of the high-level perpetrators will be brought to justice. Whether it takes only a few years or the thirty it has taken to initiate proceedings against Pinochet, those officials accused of war crimes will be brought to justice.

1The Center for Constitutional Rights is a non-profit litigation organization in the United States that is involved in lawsuits to protect U.S. constitutional and human rights. Our most recent major victory was the Supreme Court ruling in the Guantanamo cases, which won the right to hearings for those detained. We are currently the legal organization mounting most major challenges to the violations of civil and human rights in the Bush administration’s “war on terror.” In addition to continuing to represent the Guantanamo detainees, we have challenged the thousands of non-citizen detentions in the Untied States, the practice of rendition (sending of persons to countries or places where they are tortured) and brought various lawsuits against private interrogators and U.S. officials for torture in Guantanamo and Iraq.

2 The complaint and other materials regarding the German prosecution are available at the CCR website: www.ccr-ny.org

3 The seven other defendants named in the initial criminal complaint were: Maj. Gen.Walter Wojdakowski, Brigadier Gen. Janis Karpinski, Lt. Col Jerry L. Phillabaum, Lt. Col. Stephen L. Jordan, Maj. Gen. Geoffrey Miller, Col. Thomas M. Pappas, Stephen Cambone, Undersecretary of Defense.

4 The German CCIL can be found in English at <http://www.iuscrim.mpg.de/forsch/legaltext/vstgbleng.pdf>

5 The Horton declaration is available at www.ccr-ny.org.