War Criminals, Beware
by Jeremy Brecher and Brendan
The Nation magazine, November
On November 14 a group of lawyers and
other experts will come before the German federal prosecutor and
ask him to open a criminal investigation targeting Donald Rumsfeld,
Alberto Gonzales and other key Bush Administration figures for
war crimes. The recent passage of the Military Commissions Act
provides a central argument for the legal action, under the doctrine
of universal jurisdiction: It demonstrates the intent of the Bush
Administration to immunize itself legally from prosecution in
the United States, even for the most serious crimes.
The Rumsfeld action was announced at a
conference in New York City in late October titled "Is Universal
Jurisdiction an Effective Tool?" The doctrine allows domestic
courts to prosecute international crimes regardless of where the
crime was committed, the nationality of the perpetrator or the
nationality of the victim. It is reserved for only the most heinous
offenses: genocide, war crimes and crimes against humanity, including
torture. A number of countries around the world have enacted universal
jurisdiction statutes; even the United States allows it for certain
terrorist offenses and torture.
Many of the participants in the New York
conference were human rights lawyers who have been expanding the
use of universal jurisdiction since it was employed against former
Chilean dictator Augusto Pinochet. In a recent case brought in
Spain, for example, Argentine Adolfo Scilingo was tried and found
guilty of crimes against humanity he committed in Argentina and
sentenced to serve a 640-year prison term [see Geoff Pingree and
Lisa Abend, "Spanish Justice," October 9]. The decision
was made to try to prosecute Rumsfeld in Germany because its laws
facilitate the use of universal jurisdiction.
The conference was sponsored by the Center
for Constitutional Rights (CCR), which is bringing the case against
Rumsfeld, and by the International Federation for Human Rights
(FIDH), a network of 141 national human rights organizations founded
An earlier case against Rumsfeld was brought
two years ago in Germany by CCR on behalf of four Iraqi victims
of Abu Ghraib, drawing largely on documents and photos that revealed
abuse at the prison. As the case was being considered, a security
conference loomed in Munich. Rumsfeld, who could have been served
papers or even arrested, refused to attend unless the case was
dismissed. It was dismissed February 10; Rumsfeld flew to Germany
the next day.
The reason the prosecutor gave for the
dismissal was that there was "no reason to believe that the
accused would not be prosecuted in the United States"--notwithstanding
powerful evidence that the officials who controlled prosecution
were themselves part of the conspiracy to commit war crimes. The
new complaint will be based on the failure of US authorities to
investigate and prosecute high-level officials.
The case will draw on a powerful new argument.
The Military Commissions Act of 2006, which the President promoted
and recently signed into law, provides retroactive immunity for
civilians who violated the War Crimes Act, including officials
of the Bush Administration. Such an attempt to provide immunity
for their crimes, it will be argued, is in itself evidence of
an effort to block prosecution of those crimes. Indeed, according
to Scott Horton, chair of the International Law Committee of the
New York City Bar Association, when Yugoslavia sought to immunize
senior government officials, the United States declared the act
itself to be evidence of such a conspiracy.
The new case will introduce other important
elements as well. Lawyers who served as advocates, architects
and enablers of prisoner abuse policies, like Alberto Gonzales
and John Yoo, will be added as defendants. Abuse in Guantánamo
will be added to that in Abu Ghraib. The complaint will present
new evidence showing responsibility for torture and prisoner abuse
at the highest levels of the chain of command.
Wolfgang Kaleck, a German human rights
lawyer who is bringing the case in cooperation with CCR, FIDH
and other groups, told the conference in New York that he is often
asked, Do you really expect Rumsfeld to be arrested for war crimes?
His answer is that he doesn't expect it immediately. "But
we make it possible that someday Rumsfeld will be arrested,"
he says. According to Kaleck, the German government regularly
receives calls from potential high-level visitors asking, "Are
there any complaints against me?"
Antoine Bernard, FIDH executive director,
says that although there have been few convictions so far based
on universal jurisdiction, "now fear is not just on the side
of the victims but also of the torturers." And that, supporters
argue, will have a deterrent effect on government officials who
contemplate using torture.
Peter Weiss, vice president of both CCR
and FIDH and an elder statesman of international human rights
law, notes that it took fifty years to get the Supreme Court's
Brown decision outlawing school segregation, but during all that
time people kept bringing cases that eventually changed the legal
system's fundamental position. "New norms are being constituted
to deal with the reality on the ground," he said. "Later
those norms become real, practical, enforceable law."
War Crimes & Criminals