The attempted prosecution of Secretary Rumsfeld and others in Germany Four Iraqis allegedly abused at Abu Ghraib filed a criminal complaint in November 2004 with the German l'ederal Prosecutor's Office in Karlsruhe, Germany, under the doctrine of “universal jurisdiction.”315 Officials named as defendants include Secretary Rumsfeld, current Attorney General and former White House Counsel Alberto Gonzales, Director Tenet, Undersecretary of Defense Stephen Cambone, Gen. Miller, Gen. Sanchez, Gen. Wojdakowski, Gen. Karpinski, Lt. Col. Jerry L. Phillabaum, Col. Pappas, and Lt. Col. Stephen L. Jordan. 316

The complainants were assisted by the Center for Constitutional Rights (CCR) which argued that Germany was "a court of last resort,” as it was "clear that the U.S. government is not willing to open an investigation into these allegations against these officials."

The case apparently became hostage to political events, however, when the German prosecutor dismissed the complaint on the eve of a visit to Germany by Secretary Rumsfeld. When questioned about the case at a Pentagon press conference on February 3, 2005, Secretary Rumsfeld hinted that that he might refuse to attend the annual Munich Conference on Security Policy because of the lawsuit, stating, "Whether I end up there, we'll soon know. It will be a weck, and we'll find out.'

"347

On February 10, 2005, a few days before the Munich conference, German prosecutor Kay Nehm dismissed the complaint on the ground that the United States, which has primary jurisdiction for prosecuting the alleged crimes, would investigate the matter. Nehm maintained that "there are no indications that the authorities and courts of the United States of America arc refraining, or would refrain, from penal measures as regards the violations described in the complaint. Thus several proceedings have already been conducted against participants, even against members of the 800th Military Police Brigade." The next day, Secretary Rumsfeld announced that he would attend the Munich conference.

345

See e.g., Human Rights Watch. "The Pinochet Precedent: How Victims Can Pursue Human Rights Criminals Abroad." last modified March 2000 [online], http://www.hrw.org/campaigns/chile-98/broch fin.htm. (The doctrine of "universal jurisdiction" holds that every state has an interest in bringing to justice the perpetrators of particular crimes of international concem, no matter where the crime was committed, and regardless of the nationality of the perpetrators or their victims.) See all the relevant documents at 'Center for Constitutional Rights Seeks Criminal Investigation in Germany into Culpability of U.S. Officials in Abu Ghraib Torture," [online]. http://www.ccr

345

ny.org/v2/legal/september 11th/sept 11Article.asp?ObjID=1xiADJOOQx&Content=472. The German Code of Crimes against International Law in 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. In addition, three of the defendants are present in Germany: Lt. General Sanchez and Major General Wojdakowski are stationed in Heidelberg, and Colonel Pappas is in Wiesbaden. 347 DoD News Briefing, February 3, 2005 [online], http://www.defense link.mil/transcripts/2005/tr20050203secdef2082.html. The exchange continued as follows: "Reporter: Are you concerned at all about the universal jurisdiction that Germany has, and the fact that... Rumsfeld: It's certainly an issue, as it was in Belgium [where suits against U.S. officials led Secretary Rumsfeld to threaten to move NATO headquarters]. It's something that we have to take into consideration."

The plaintiffs are currently filing a petition for re-consideration with the prosecutor's office, before they file a formal appeal to a German superior court.

The German prosecutor's decision flies in the face of the evidence, presented in this report, that the United States is not pursuing accountability for those most responsible for the pattern of crimes against detainees in U.S. custody.

Civil suits in the United States against Secretary Rumsfeld and others

On March 1, 2005, Iraqi and Afghan civilians who were allegedly tortured and abused while in U.S. custody, filed lawsuits in U.S. federal courts against Secretary Rumsfeld, Gen. Sanchez, Gen. Karpinski, and Col. Pappas, assisted by the ACLU and Human Rights First. The lawsuit against Secretary Rumsfeld alleges that he and the others ordered the torture and abuse of detainees in Iraq and Afghanistan and that he failed to stop the torture and cruel, inhuman, and degrading treatment even after credible reports of such treatment began to emerge in the media and in military documents. The victims seek a court order that their treatment was unlawful and violated international law, the U.S. Constitution, and U.S. military law. They also seek monetary compensation for the harms they suffered.348

VI. The Need for a Special Prosecutor

This report has set forth the publicly-available evidence against two senior civilian leaders and two top military generals in connection with the widespread abuse of detainees in U.S. detention. Tuman Rights Watch expresses no opinion about the ultimate guilt or innocence of these men, particularly because so much evidence has been withheld and so many questions remain unanswered, but does believe that a criminal investigation is called for with respect to each of them. There may be other senior officials whose conduct also justifies an investigation.

Because there is no realistic possibility that the U.S. Attorney General or the U.S. military will investigate these senior leaders for the crimes described above, the appointment of a special prosecutor is warranted.

Under the Convention against Torture and the Geneva Conventions, the United States is required to prosccutc acts of torture and war crimes.

Article 12 of the torture convention provides that:

348 The legal papers are collected at http://www.aclu.org/Safeand Free/Safeand Free.cfm?ID=17572&c=206.

Fach State Party shall ensure that its competent authorities proceed to a prompt
and impartial investigation, wherever there is reasonable ground to believe that
an act of torture has been committed in any territory under its jurisdiction.

Similarly, the Geneva Conventions require the United States to investigate allegations of “grave breaches” of the Geneva Conventions, 319 including “willful killing, torture or inhuman treatment" of POWs and civilians qualified as "protected persons," and to prosecute, or extradite to another state that will prosecute, perpetrators of “grave breaches.”350

Under U.S. law, as described above, there are two avenues to prosecution for the alleged crimes described in this report - the civilian and the military justice systems.

Under the civilian justice system, criminal enforcement is committed to the U.S. Department of Justice and, in particular, to the Attorney General Alberto Gonzales.

Under the military justice system, criminal investigations may be undertaken by command authority, with the Secretary of Defense - Donald Rumsfeld as the ultimate authority.

Given that the two people who can trigger investigations and prosecutions for the alleged war crimes and acts of torture discussed in this report have been deeply involved in the policies leading to these alleged crimes, if not in the crimes themselves, it is extremely unlikely that any such investigations will be undertaken.

Human Rights Watch, together with the American Bar Association, the American Civil Liberties Union, the Center for Constitutional Rights, Iluman Rights First, and other groups, has called for the appointment of a special prosecutor to pursue these crimes.

Under the former Independent Counsel Act (28 U.S.C. § 591, expired 1999), it might have been possible to compel the appointment of an independent counsel by a special panel. That act expired in 1999, however.

349 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I, 1949), Article 51; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II, 1949), Article 52; Convention Relative to the Treatment of Prisoners of War, (Geneva Convention III, 1949), Article 131; Convention Relative to the Protection of Civilian Persons in Time of War, (Geneva Convention IV, 1949), Article 148.

350 Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva Convention I. 1949), Article 50; Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva Convention II, 1949), Article 51; Convention Relative to the Treatment of Prisoners of War, (Geneva Convention III. 1949), Article 130; Convention Relative to the Protection of Civilian Persons in Time of War, (Geneva Convention IV, 1949). Article 147.

ry that the administration itself does not control is being conducted
busive interrogation methods. The flurry of self-investigations
ny genuinely independent one.

med as Special Counsel shall be a lawyer with a reputation for
rtial decision making, and with appropriate experience to
the investigation will be conducted ably, expeditiously and
that investigative and prosecutorial decisions will be supported
understanding of the criminal law and Department of Justice
ecial Counsel shall be selected from outside the United States
pecial Counsels shall agree that their responsibilities as Special
ke first precedence in their professional lives, and that it may
vote their full time to the investigation, depending on its
a the stage of the investigation.

be

as "full power and independent authority to exercise all investigative and ns of any United States Attorney."

Yowever, would not have authority to investigate or prosecute officers within General Sanchez and General Miller, for their violations of the UCMJ,357 Dove, a prosecutor would be able to investigate those officers' violations of cutor outside the military would also be unable to investigate and subpoena and soldiers for UCMJ violations (such as "dereliction of duty") and thus ation in the prosecution of more senior officers - a standard prosecutorial powers, it would be difficult for a prosecutor to compel such persons to vestigations.

em would be for the secretary of defense to appoint a consolidated
hin the military to cooperate with a civilian prosecutor and serve to
ons in connection with the prosecutor's investigations.

special prosecutor could answer the many questions which remain about is report, as well as about detainee policy generally.

can investigate UCMJ violations, and only an officer in the military chain of command can act appoint a court martial to try UCMJ violations.