The American human rights organisation Center for Constitutional Rights (CCR) and four Iraqis who were tortured by American military personnel in Iraq have brought legal proceedings in Germany against Rumsfeld. Also named in the indictment are former CIA Director George Tenet; the deputy secretary for the intelligence at the US Defence Department, Stephen Cambone; and US generals Robert Sanchez, Walter Wojdakowski, Geoffrey Miller and Janis Karpinski; as well as military officers Jerry Phillabaum, Thomas Pappas and Stephen Jordan. All are charged with war crimes.
The lawsuit begins at the point in the chain of command where the US courts left off: with the commanders of the military units that carried out atrocities at Abu Ghraib and other prisons. The document finally ends with Donald Rumsfeld, who was recently granted a second term in office as defence secretary by President George W. Bush.
The indictment drawn up by the Berlin-based lawyer Wolfgang Kaleck maintains that what the Pentagon euphemistically called "abuse" amounted to "torture and other grave violations of humanitarian law." It charges that the practices involved were "not the work of a handful of 'rogue' individuals," but "were widespread among the United States (US) military and had been, and were continuing to be applied in Afghanistan, Guantanamo, Iraq and detention centres located in other countries, both known and secret. The practices involved were not only directly or indirectly condoned by officials at the highest levels of the US government, but also condoned by incorrect and unlawful legal advice emanating from civilian and military government lawyers."
The 170-page document meticulously details the responsibility of those named for the torture and abuse of Iraqis and substantiates its claims with extensive references taken from official US documents, newspaper reports and testimony from eyewitnesses. (Click here to read the document)
The CCR explained that it filed its case in Germany, because there is no prospect that the accused will be charged in either the US or Iraq. The German Statutes of Criminal Law (VStGB) introduced in 2002 makes it possible—at least theoretically—to prosecute in Germany those accused of war crimes and crimes against humanity, even if such crimes were committed abroad and no German citizens were involved.
Torture and international law
The CCR document directly links the torture at Abu Ghraib with the illegal character of the Iraq war itself. By studying what led up to Abu Ghraib, it states, we learn "with what methods the war on terror has been carried on since September 11, 2001. The right to war (jus ad bellum) is reformulated and relied on in the Iraq war, while international law restraints, in particular those of the United Nations Charter, no longer play a role. In addition, humanitarian law and other legal restraints are increasingly disregarded."
The document then quotes a well-known passage from the German expert in constitutional law, Carl Schmitt, who provided legal justifications for the Nazi dictatorship: " 'He who decides on the state of emergency is the sovereign.' In a time in which a permanent state of emergency is being proclaimed, this dictum increasingly determines political everyday life."
It is in this context that the criminal complaint assesses the decisive significance of torture: "It took many decades to arrive at the universal, ethical, theoretical and legal recognition of the prohibition of torture. Nevertheless, torture is still commonplace in dozens of states. The fight against torture, whether in each concrete case or in abstract terms, is thus of crucial significance for the future of a humane and civilised humanity. Fighting against torture means being decisive in acting against its propagation and insisting on the punishment of those directly responsible for torture as well as those who organise the practice of torture. This is the context in which this complaint should be understood."
The document cites as precedent the arguments of Robert Jackson, who was the chief American prosecutor at the Nuremburg trial of the Nazi war criminals. In his opening statement to the international tribunal, Jackson stated on November 21, 1945: "Let me make clear that while this law is first applied against German aggressors, the law, if it is to serve a useful purpose, must condemn aggression by any other nations, including those which sit here now in judgement. We are able to do away with domestic tyranny and violence and aggression by those in power against the rights of their own people only when we make all men answerable to the law."
The document admits that those attempting to try the US defence secretary in the Federal Republic of Germany "will be accused of having lost touch with reality." It counters, however, that international law has experienced an "explosive development" in recent years. It cites as precedent cases brought by the torture victims of South American dictatorships, the tribunals established following the war in Yugoslavia and the massacres in Rwanda, and the setting up of the International Criminal Court in 2002, as well as the still ongoing legal proceedings against Chile's ex-dictator Augusto Pinochet.
It invokes the principle of upholding international law that was used to prosecute German and Japanese war criminals after the Second World War for war crimes and the crime of carrying out an illegal war of aggression...
---- For the rest of this article, please visit the World Socialist Web Site at www.wsws.org. The full article includes a link to the CCR document, which is available in PDF format.