CENTER FOR CONSTITUTIONAL RIGHTS SEEKS CRIMINAL INVESTIGATION IN GERMANY INTO CULPABILITY OF U.S OFFICIALS IN ABU GHRAIB TORTURE
German Prosecutor Asked to Meet Obligations under Law Requiring Investigation into Torture and War Crimes
Doctrine of Universal Jurisdiction Permits Prosecution of Suspected War Criminals Wherever They May be Found
Berlin, Germany November 30, 2004 — In a historic effort to hold high U.S. officials accountable for brutal acts of torture including the widely publicized abuses carried out at Abu Ghraib, on Tuesday November 30, 2004, the Center for Constitutional Rights (CCR) and four Iraqi citizens will file a criminal complaint with the German Federal Prosecutor’s Office at the Karlsruhe Court, Karlsruhe, Germany. Under the doctrine of universal jurisdiction suspected war criminals may be prosecuted irrespective of where they are and where the offense took place.
The four Iraqis were victims of gruesome crimes ranging including electric shock, severe beatings, sleep and food deprivation, hooding and sexual abuse. Further details of the treatment of the complainants are attached.
CCR President Michael Ratner, who traveled to Berlin to file the complaint, said “From Donald Rumsfeld on down, the political and military leaders in charge of Iraq policy must be investigated and held accountable. It is shameful that the United States of America, a nation that purports to set moral and legal standards for world, refuses to seriously investigate the role of those at the top of the chain of command in these horrible crimes. Indeed,” Ratner added, “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 came from the top down.”
The U.S. officials charged include Secretary of Defense Donald Rumsfeld, Former CIA Director George Tenet, Undersecretary of Defense for Intelligence Dr. Steven Cambone, Lieutenant General Ricardo Sanchez, Major General Walter Wojdakowski, Major General Geoffrey Miller, Brigadier General Janis L. Karpinski, Lieutenant Colonel Jerry L. Phillabaum, Colonel Thomas Pappas, and Lieutenant Colonel Stephen L. Jordan.
The criminal complaint is brought under the German Code of Crimes against International Law (CCIL) and seeks an investigation into war crimes and crimes against humanity allegedly carried out by high ranking United States civilian and military officials including the incidents which occurred in Iraq. CCR will be represented in Germany by Wolfgang Kaleck, a Berlin-based lawyer who has been involved in similar efforts on behalf of victims of the Argentine “dirty war.”
The charges against the defendants include violations of the German Code under Article 1 section 8 “War Crimes against Persons,” which outlaws killing, torture, cruel and inhumane treatment, sexual coercion and forcible transfers. The Code makes criminally responsible those who carry out the above acts as well as those who induce, condone or order the acts. It also makes commanders, whether civilian or military, liable if they fail to prevent their subordinates from committing such acts.
The German Code of Crimes against International Law grants German Courts what is called Universal Jurisdiction for the above-described crimes. Article 1, Part 1, Section 1 states: “This Act shall apply to all criminal offenses against international law designated under this Act, to serious criminal offences designated therein 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.
The German CCIL places a prosecuting duty on the German prosecutor for all crimes that constitute violations of the CCIL, irrespective of the location of the persons involved, the crime, and the nationality of the persons involved. Complaints can be filed with the German prosecutor to seek an investigation of specific crimes, as has been done here. In the U.S., outside parties can bring complaints to the attention of a prosecutor, but there is no duty to prosecute such complaints and they do not become part of an official court procedure. In contrast, in Germany the prosecutor is under a duty to determine if an investigation and indictments are warranted; if he fails to do so, the complainants can appeal to the court.
According to CCR lawyers, in this case there are particularly compelling reasons the prosecutor should exercise his duty. Three of the defendants are present in Germany. Lt. General Sanchez and Major General Wodjakoski are stationed in Heidelberg and Colonel Pappas is in Wiesbaden. Others, such as Secretary of Defense Donald Rumsfeld, often travel to Germany. In addition, the military units that engaged in the illegal conduct are stationed in Germany. Although such links to Germany are unnecessary for the prosecutor to fulfill his duty, when the alleged perpetrators are actually on German soil the duty to investigate is even stronger. In addition, their presence in Germany gives the prosecutor an important avenue to investigate these cases. As victims are also the complainants, this places an additional duty on the prosecutor to investigate.
“We view Germany as a Court of last resort,” said CCR Vice President Peter Weiss, ‘We file these cases here because there is simply no other place to go. It is clear that the U.S. government is not willing to open an investigation into these allegations against these officials.” Additionally, 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, it is asserted that the abuses and torture were the exclusive responsibility of rogue lower-level military personnel.
Nor are there any international courts or courts in Iraq that can carry out investigations and prosecutions of the U.S. role. The United States had refused to join the International Criminal Court, thereby foreclosing the option of pursuing a prosecution in international courts. Iraq has no authority to prosecute and the U.S. gave immunity to all its personnel in Iraq from Iraqi prosecution. Says Weiss, “We are doing what is necessary and expected when other systems of justice have failed: we are asking the German prosecutors, who have available one of the most advanced universal jurisdiction laws in the world, to begin an investigation that is required under its law.”