War Crimes Complaint Against Rumsfeld,
et al
Background Brief on the Case Against
Rumsfeld, Gonzales, and Others Filed in Germany on November 14,
2006
Center for Constitutional RIghts,
www.ccr-ny.org/v2/home.asp
The November 14, 2006 criminal complaint is a request for the
German Federal Prosecutor to open an investigation and, ultimately,
a criminal prosecution that will look into the responsibility
of high-ranking U.S. officials for authorizing war crimes in the
context of the so-called "War on Terror." The complaint
is brought on behalf of 12 torture victims - 12 Iraqi citizens
who were held at Abu Ghraib prison and one Guantánamo detainee
- and is being filed by the Center for Constitutional Rights (CCR),
the International Federation for Human Rights (FIDH), the Republican
Attorneys' Association (RAV) and others, all represented by Berlin
Attorney Wolfgang Kaleck. The complaint is related to a 2004 complaint
that was dismissed, but the new complaint is filed with much new
evidence, new defendants and plaintiffs, a new German Federal
Prosecutor and, most important, under new circumstances that include
the resignation of Donald Rumsfeld as Secretary of Defense and
the passage of the Military Commissions Act of 2006 in the U.S.,
which attempts to grant officials retroactive immunity from prosecution
for war crimes.
Executive Summary of the Complaint's Allegations:
From Donald Rumsfeld on down, the political
and military leaders in charge of ordering, allowing and implementing
abusive interrogation techniques in the context of the "War
on Terror" since September 11, 2001, must be investigated
and held accountable. The complaint alleges that American military
and civilian high-ranking officials named as defendants in the
case have committed war crimes against detainees in Iraq, Afghanistan
and in the U.S.-controlled Guantánamo Bay prison camp.
The complaint alleges that the defendants
"ordered" war crimes, "aided or abetted" war
crimes, or "failed, as civilian superiors or military commanders,
to prevent their commission by subordinates, or to punish their
subordinates," actions that are explicitly criminalized by
German law. The U.S. administration has treated hundreds if not
thousands of detainees in a coercive manner, in accordance with
"harsh interrogation techniques" ordered by Secretary
Rumsfeld himself that legally constitute torture and/or cruel,
inhuman and degrading treatment, in blatant violation of the provisions
of the 1949 Geneva Conventions, the 1984 Convention Against Torture
and the 1977 International Covenant on Civil and Political Rights
- to all of which the United States is a party. Under international
humanitarian treaty and customary law, and as re-stated in German
law, these acts of torture and/or cruel, inhuman or degrading
treatment constitute war crimes.__The U.S. torture program that
resulted in war crimes was aided and abetted by the government
lawyers also named in this case: former Chief White House Counsel
(and current Attorney General) Alberto R. Gonzales, former Assistant
Attorney General Jay Bybee, former Deputy Assistant Attorney General
John Yoo, General Counsel of the Department of Defense William
James Haynes, II and Vice President Chief Counsel David S. Addington.
While some of them claim to merely have given legal opinions,
those opinions were false or clearly erroneous and given in a
context where it was known and foreseeable to these lawyers that
torture would be the result. Not only was torture foreseeable,
but this legal advice was given to facilitate and aid and abet
torture as well as to attempt to immunize those who tortured.
Without these opinions, the torture program could not have occurred.
The infamous "Torture Memo" dated August 1, 2002, is
the key document that redefined torture so narrowly that such
classic and age old torture techniques as water-boarding were
authorized to be employed and were employed by U.S. officials
against detainees.
Why Germany?
The complaint is being filed under the
Code of Crimes against International Law (CCIL), enacted by Germany
in compliance with the Rome Statute creating the International
Criminal Court in 2002, which Germany ratified. The CCIL provides
for "universal jurisdiction" for war crimes, crimes
of genocide and crimes against humanity. It enables the German
Federal Prosecutor to investigate and prosecute crimes constituting
a violation of the CCIL, irrespective of the location of the defendant
or plaintiff, the place where the crime was carried out, or the
nationality of the persons involved.
No international courts or personal tribunals
in Iraq were mandated to conduct investigations and prosecutions
of responsible U.S. officials. The United States has refused to
join the International Criminal Court, thereby foreclosing the
option of pursuing a prosecution before it. Iraq has no authority
to prosecute. Furthermore, the U.S. gave immunity to all its personnel
in Iraq from Iraqi prosecution. All this added to the United States'
unquestionable refusal to look at the responsibility of those
of the very top of the chain of command and named in the present
complaint, and the recent passage of the Military Commissions
Act of 2006 (see below) aimed at preventing war crimes prosecutions
against Americans in the U.S., German courts are seen as a last
resort to obtain justice for those victims of abuse and torture
while detained by the United States.
The Plaintiffs in the Case:
The complaint is being filed on behalf
of 12 Iraqi citizens who were victims of gruesome crimes at the
infamous Abu Ghraib prison. They were severely beaten, deprived
of sleep and food, sexually abused, stripped naked and hooded,
and exposed to extreme temperatures.
Another plaintiff in the case is Mohammed
al Qahtani, a Saudi citizen detained at Guantánamo since
January 2002. At Guantánamo, Mr. al Qahtani was subjected
to a regime of aggressive interrogation techniques, known as the
"First Special Interrogation Plan," that were authorized
by U.S. Secretary of Defense Donald Rumsfeld and implemented under
the supervision and guidance of Secretary Rumsfeld and the commander
of Guantánamo, defendant Major General Geoffrey Miller.
These methods included fifty days of severe sleep deprivation
and 20-hour interrogations, forced nudity, sexual humiliation,
religious humiliation, physical force, prolonged stress positions
and prolonged sensory over-stimulation.
None of these plaintiffs - and the hundreds
of other detainees subjected to similar abuses - has seen justice,
and none of those who authorized these techniques at the top of
the chain of command have been held liable for it, or even seriously
and independently investigated.
The Defendants in the Case:
The U.S. high-ranking officials charged
include:
- Former Secretary of Defense Donald Rumsfeld
_- Former CIA Director George Tenet _- Undersecretary of Defense
for Intelligence Dr. Stephen Cambone_- Lieutenant General Ricardo
Sanchez _- Major General Walter Wojdakowski _- Major General Geoffrey
Miller _- Colonel Thomas Pappas_- Major General Barbara Fast_-
Colonel Marc Warren_- Former Chief White House Counsel Alberto
R. Gonzales _- Former Assistant Attorney General Jay Bybee _-
Former Deputy Assistant Attorney General John Yoo_- General Counsel
of the Department of Defense William James Haynes, II_- Vice President
Chief Counsel David S. Addington
The 2004 Complaint:
In November 2004, the previous German
Federal Prosecutor failed to prosecute an earlier complaint against
many of these same defendants filed by CCR with the support of
FIDH and RAV. The U.S. pressured Germany to drop the case, saying
not doing so would jeopardize U.S.-German relations, and the complaint
was ultimately dismissed in February 2005 on the eve of a visit
by Defense Secretary Donald Rumsfeld to Munich, Germany. In dismissing
the case, the Prosecutor stated: "there are no indications
that the authorities and courts of the United States of America
are refraining, or would refrain, from penal measures as regards
the violations described in the complaint." The passage of
the Military Commissions Act of 2006 attempting to immunize officials
and others from prosecution and much new evidence shows this is
not the case.
The Impact of the Military Commissions
Act of 2006:
The Military Commissions Act was signed
by President Bush on October 17, 2006, and it aims at protecting
U.S. officials and military personnel by: 1) narrowing the grounds
of criminal liability under the War Crimes Act and making those
revisions retroactive to November 26, 1997; and by 2) retroactively
extending a defense for criminal prosecutions related to detentions
and interrogations back to September 11, 2001. These immunizing
provisions essentially attempt to grant an amnesty for international
crimes including war crimes and torture. The retroactivity provision
directs that prosecutions of war crimes committed since 1997 will
fall under the new narrowed range of standards and interpretations
of war crimes, which would protect civilians from being prosecuted
for committing acts that would have been considered war crimes
under the old definition - thereby explicitly aiming at immunizing
American officials and others from prosecution in their country.
How the 2006 Complaint Is a Stronger Case:
The grounds for the 2005 dismissal are
no longer justified:_The prosecutor's original decision to dismiss
the case was solely based on the assumption that an ongoing investigation
was being carried out in the U.S. regarding the Abu Ghraib scandal.
We now have extensive evidence that demonstrates that this investigation
was directed only towards the criminal culpability of the lowest
ranking military personnel. Indeed, some of these very defendants
have been or are being rewarded with higher-level appointments
and medals. The investigative and prosecutorial functions in the
United States are currently directly controlled by the ones involved
in the conspiracy to perpetrate war crimes and named in this complaint,
which politically blocks possible investigations and criminal
prosecutions. Furthermore, the enactment of the Military Commissions
Act of 2006 is unquestionably the clearest illustration of such
unwillingness to prosecute Americans for war crimes.
New evidence:_Extraordinary new materials,
documentation and testimonies that have come to light over the
past two years - about what the plaintiffs went through (Mr. al
Qahtani is a new plaintiff to the case), about the signed memos
that led to the justification and practice of torture, and about
the defendants' personal involvement - only strengthen the case.
In addition, former U.S. Brigadier General
Janis Karpinski, a defendant in the earlier complaint as the commanding
officer at Abu Ghraib, is now providing testimony and will testify
on behalf of the plaintiffs.
New additional defendants:_The new complaint
charges the government lawyers alleged to be the legal architects
of the Bush Administration's practice of torture.
Rumsfeld can no longer claim sovereign
immunity:_Rumsfeld's resignation of November 8, 2006, means that
he cannot claim either the functional or personal immunity of
sovereign officials from international prosecution for war crimes.
Functional immunity - related to acts performed in the exercise
of a person's official functions - does not, since the Nuremberg
trials in 1945, apply to international crimes such as war crimes.
As to personal immunity - covering officials' private acts accomplished
while in office - it only applies during the individual's term
of office.
Unprecedented support for the case:_When
filing a complaint to the Federal Prosecutor, any group may join
the complaint as a "co-plaintiff," which demonstrates
the support of these groups and their common request for the opening
of an investigation. Co-plaintiffs in the present case include:
Individuals
1980 Nobel Peace Prize winner Aldolfo
Perez Esquirel (Argentine), _2002 Nobel Peace Prize winner Martín
Almada (Paraguay), _Theo van Boven, the former United Nations
Special Rapporteur on Torture, _Sister Dianna Ortiz, (Torture
survivor, Executive Director of TASSC)
International and Regional NGOs
FIDH: International Federation for Human
Rights,_The International Peace Bureau (Nobel Peace Prize winner
in 1910),_International Association of Lawyers Against Nuclear
Arms (IALANA)_European Democratic Lawyers _European Democratic
Jurists, _International Association of Democratic Lawyers
National NGOs
Argentina: Comité de Acción
Jurídica (CAJ) _Argentina: Liga Argentina por los Derechos
del Hombre_Bahrain: Bahrain Human Rights Society (BHRS) _Canada:
Lawyers against the War (LAW)_Chile: Asociación Americana
de Juristas, Section Chile_Colombia: Colectivo de Abogados José
Alvear Restrepo _Democratic Republic of Congo: Association Africaine
des Droits de l'Homme (ASADHO)_Ecuador: Fundación Regional
de Asesoría en Derechos Humanos (INREDH)_Egypt: Egyptian
Organization for Human Rights (EOHR) _El Salvador: Comisión
de Derechos Humanos de El Salvador (CDHES)_France: Ligue Française
des Droits de l'Homme (LDH) _France: Association pour la Défencse
du droit international humanitaire (ADIF)_France: Droit- Solidarité_Germany:
The Republican Attorneys' Association (RAV) _Germany: Medizinische
Flüchtlingshilf_Guatemala: Comisión de Derechos Humanos
de Guatemala (CDHG)_Italy: Menschenrechtsorganisation Unione Forense
per la Tutela Del Diritti Del`Uomo_Jordan: Amman Center for Human
Rights Studies (ACHR) _Italy: Giuristi Democratici_Mexico: Comisión
Mexicana de Defensa y Promoción de los Derechos Humanos
(CMDPDH) _Mexico: Liga Mexicana por la Defensa de los Derechos
Humanos (LIMEDDH)_Nicaragua: Centro Nicaraguense de Derechos Humanos
(CENIDH)_Palestine: Palestinian Center for Human Rights Panama:
Centro de Capacitación Social (CCS)_Peru: Asociacion Pro
Derechos Humanos (APRODEH)_Peru: Asesoría Laboral del Perú_Tchad:
Association Tchadienne pour la Promotion et la Défense
des Droits de l'Homme (ATPDH) _Senegal: Rencontre Africaine pour
la Défense des Droits de l'Homme (RADDHO)_Spain: Associación
Catalana per al defensa de drets humans (ACDDH)_Spain: Asociación
Libre de Abogados (ALA)_Tunisia: Ligue Tunisienne des droits de
l'Homme (LTDH)_USA: The Center for Constitutional Rights (CCR)
_USA: National Lawyers' Guild (NLG)_USA: Torture Abolition and
Survivors Support Coalition International (TASSC)_USA: Veterans
for Peace
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