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:



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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