German Criminal Complaint Against Donald Rumsfeld and Others
On November 14, 2006, a criminal complaint was filed in a German court against senior U.S. officials, including former Secretary of Defense Donald Rumsfeld, former CIA Director George Tenet, high ranking military officers, and several former government lawyers alleging torture and war crimes at Abu Ghraib prison in Iraq and the Guantanamo Bay Prison Camp. The new complaint renews debates surrounding the international law of universal jurisdiction, which contemplates that certain heinous offenses may be prosecuted wherever the alleged offender is found, even if he or she is not a national of the prosecuting country. Further, the new complaint raises questions concerning the impact of the Military Commissions Act of 2006 (MCA) on Germany?s interest in respecting principles of comity and ?complementarity? and the culpability of lawyers for the actions of a government.
The complaint is an updated attempt to indict U.S. officials in a German court after a previous German Federal Prosecutor failed to prosecute many of the same defendants two years ago. Under German criminal procedure, prosecutors have discretion whether to pursue universal jurisdiction cases, and the 2004 complaint was dismissed with the prosecutor stating: ?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.? At the time, the prosecutor cited investigations and proceedings in the U.S. that indicated that the judicial process should best be reserved for U.S. jurisdiction. The dismissal also followed political pressure from the U.S. government.
The new complaint is filed on behalf of eleven Iraqi citizens held at Abu Ghraib and a Saudi held at Guatanamo Bay. The complaint is filed under Germany?s Code of Crimes Against International Law (CCAIL), which has been in effect since July 2002. The law was enacted in response to the formation of the International Criminal Court, to which Germany is a party. CCAIL enables German courts to exercise jurisdiction over specified crimes against international law and is applicable to acts committed regardless of location of the alleged crimes or the nationality of the persons involved in those actions.
The new complaint differs from the 2004 complaint because it follows Mr. Rumsfeld?s resignation, thus removing possible immunities from universal jurisdiction attached to certain government offices, and the passage of the MCA. The new complaint also names U.S. Attorney General Alberto Gonzales, former Assistant Attorney General Jay Bybee, former Deputy Assistant Attorney General John Yoo, former Counsel to the Vice-President and current chief of staff David S. Addington, and General Counsel of the Department of Defense William J. Haynes, II. The complaint alleges that the government lawyers facilitated, aided and abetted torture by drafting legal opinions, which were clearly erroneous, but enabled the torture to occur under the guise of legal justification. Torture is one of the offenses generally recognized as being subject to universal jurisdiction.
Issues of Immunity
Personal immunity offers protection to heads of State and certain high-ranking State officers from foreign prosecution while that person is in office. This immunity prevents States from prosecuting officials of another sovereign State without consent and ensures that high-ranking government officials can travel freely to represent their State in order to carry out foreign relations without threat of criminal action. Personal immunity has been found to attach to the offices of head of State and minister for foreign affairs, in addition to foreign diplomats. Whether personal immunity would attach to the equivalent offices of Minister of Defense or Director of Intelligence or their high-ranking employees is uncertain, but viable arguments have been made that high-level defense and intelligence officers must similarly travel abroad so that they can represent their State and carry out the necessary functions related to international alliances and defense pacts. Donald Rumsfeld?s and George Tenet?s resignations remove this possible limitation to the exercise of universal jurisdiction. However, the question still remains whether some of the named U.S. officials still in office (e.g. Under-Secretary of Defense for Intelligence Stephen A. Cambone) are accorded personal immunity.
Impact of the MCA
As noted in the first complaint dismissal, the purpose of universal jurisdiction prosecution is to ?close gaps in punishability? and ensure criminal accountability. However, a State?s interest in combating impunity must be balanced against the fundamental principle of non-interference in the affairs of foreign States. Germany?s universal jurisdiction provisions are derived from the Statute creating the International Criminal Court, and the German prosecutor cited complementarity for the deferral to U.S. jurisdiction. Complementarity denotes that States with direct nexus to the perpetrators, perpetrated acts, or victims have the first right and obligation to prosecute international crimes, and because third-state universal jurisdiction is complementary to these courts, German jurisdiction can only be invoked if the those States, or a competent international tribunal, are unwilling or unable to prosecute.
The first case was dismissed when the U.S., the State with primary jurisdiction, was shown to be conducting investigations and U.S. authorities had no actual or legal obstacles to prosecution. The new complaint alleges that the recent passage of the MCA immunizes U.S. officials from criminal liability for events at Abu Ghraib and Guantanamo Bay. The MCA protects certain U.S. government personnel by retroactively narrowing the grounds for criminal liability under the War Crimes Act and creating a defense that the detention and interrogation techniques were either lawful or the person responsible, acting with ordinary sense and understanding, did not know the practices were unlawful. The complaint argues that these provisions effectively grant immunity from prosecution in the United States, leaving only foreign venues as avenues for redress. (Lawyers representing Mr. Rumsfeld, Lt. Gen. Ricardo Sanchez and Col. Thomas M. Pappas have already cited the MCA for purposes of immunity from an unrelated civil claim filed in a U.S. District Court on behalf of detainees in Iraq and Afghanistan.) With the newly created immunity, the U.S. not being a party to the International Criminal Court, and Iraqi courts having no jurisdiction to prosecute Americans, the complaint contends that foreign courts are the last resort. The U.S. government is likely to argue that the MCA does not prevent legal accountability, but instead clarifies criminal conduct that would constitute torture and prevents ex post facto prosecution. Further, the U.S. likely will contend that the State did not abdicate responsibility because the Department of Defense conducted twelve substantial reviews of the events and detention operations and prosecuted those most directly responsible for criminal activity at Abu Ghraib.
The MCA may also impact named military officers stationed in Germany. The NATO Status of Forces Agreement says that the authorities of the receiving State (in this case, Germany) have exclusive jurisdiction over members of the sending State?s military forces with respect to offences punishable by its law, but not by the law of the sending State. The Agreement also specifies that, in cases of concurrent jurisdiction, the U.S. military authorities shall have the primary (but not exclusive) right to exercise jurisdiction over its officers in relation to offences committed in the performance of official duty. The right to exercise primary jurisdiction can be waived. Consequently, in situations where the MCA provides military officers stationed in Germany with a defense to prosecution in the United States, an obstacle may be cleared for the exercise of German jurisdiction either because the offence is not punishable by U.S. law or because the MCA might be regarded as a waiver of U.S. jurisdiction.
Culpability of Lawyers
The new complaint includes the lawyers who advised on, and possibly enabled, the legal framework governing prisoner policies in Iraq and Guantanamo Bay. While it is very rare for war crimes allegations to be issued against legal advisors, it is not without precedent. Twelve trials were held in Nuremberg, Germany under the provisions of the Control Council Law No. 10, following the U.S. defeat of Nazi Germany. One of these trials, the United States versus Joseph Altstoetter, et. al (also known as ?the Justice Case?) indicted nine officials of the Reich Ministry of Justice for participating in the drafting and enacting of unlawful orders and facilitating the violation of the laws of war and of humanity, by allowing war crimes to be perpetrated under the impression of law authorized by the Ministry of Justice. The Ministry of Justice lawyers had decreed that the relevant Hague Law and Geneva Convention on the Prisoners of War of 1929 did not apply to German actions because of the legal status of the occupied territories and that the insurgencies did not subscribe to the treaties. While the allegations stemming from Iraq and Guantanamo Bay are in no way comparable to those relating to events in World War II, the Justice Case forms an instructive nonbinding precedent in U.S. and German-related jurisprudence for criminal responsibility for lawyers who provide legal justification for the commission of war crimes.
While it is uncertain whether the German prosecutor will initiate an investigation due to political considerations and the barriers that make extradition for purposes of trial unlikely, the new claim raises legal questions that were absent during the dismissal of the first claim. If the case does go forward, the implications of the MCA and the culpability of legal advisors may be clarified in the context of a robust application of universal jurisdiction.
Scott Lyons, an ASIL member and a recipient of the ASIL Helton Fellowship, is a legal analyst and project manager for the American Bar Association's Rule of Law Initiative/CEELI. He is a former Institute Scholar and Peace Fellow for the Public International Law and Policy Group and Gillett-Mussey Research Fellow for the War Crimes Research Office.
This Insight does not proffer any conclusions about the merits of the case, allegations, or the criminal responsibility of any of the accused. All views, opinions and errors expressed in this article are those of the author and should not, directly or indirectly, be attributed to the American Bar Association or its staff.
 Military Commissions Act of 2006 (MCA), Public Law 109-336, 120 Stat. 2600 (Oct. 17, 2006), available at http://www.govtrack.us/data/us/bills.text/109/s/s3930.pdf
 See e.g. The Arrest Warrant of 11 April 2000 (Congo v. Bel.) 2002 I.C.J. available at http://www.icj-cij.org/icjwww/idocket/iCOBE/icobejudgment/icobe_ijudgment_20020214.PDF
 See ASIL Insight, An Attempt to Have Secretary Rumsfeld and Others Indicted for War Crimes under the German VÃ¶lkerstrafgesetzbuch, at http://www.asil.org/insights/2004/12/insight041213.htm
 MCA Â§Â§ 6(b) & 8(b).
 See Ali et. al v. Rumsfeld, complaint available at http://www.aclu.org/images/general/asset_upload_file600_23378.pdf . See also http://www.csmonitor.com/2006/1208/p02s01-usju.html for a news article discussing the civil case. Col. Janis Karpinski is named in the U.S. civil case, but not in the German complaint.
 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, June 19, 1951, 4 U.S. Treaties 1792, 199 U.N.T.S. 67, art. VII (2)(b) & (3)(a). See also the Supplementary Agreement of Aug. 3, 1959, 14 U.S. Treaties 531, 481 U.N.T.S. 262, art. 19.
 The trials were established pursuant to Military Government Ordinance No. 7, promulgated on October 25, 1946.
 There were sixteen defendants total, representing judges, prosecutors and Ministry of Justice officials responsible for the administration of law under the Nazi government in Germany.