German courts have rejected charges against former Secretary of Defense, Donald Rumsfeld. The Center for Constitutional Rights (CCR), a New York based non-profit legal organization, has accused Rumsfeld, as well as Attorney General Alberto Gonzalez and former director of The Central Intelligence Agency George Tenet, of "torture and other war crimes committed in Iraq, Afghanistan, and Guantanamo." The complaint was filed in German courts on behalf of the CCR, more than 40 human rights groups, 12 former detainees of the Abu Ghraib facility in Iraq, and a Saudi citizen held at the US naval base in Guantanamo Bay, Cuba.
In 2002, Germany enacted the Code of Crimes Against International Law (CCAIL) that enables prosecution of crimes against international law regardless of the location of the violation or the nationality of the perpetrator. The CCAIL supplemented German accession to the International Criminal Court (ICC). German jurisdiction over American citizens lies in the complimentary nature of the ICC. This says that the States of origin of the perpetrators hold primary jurisdiction over alleged crimes committed by its citizens. If States are unwilling or unable to prosecute crimes and a sufficient international tribunal can not be established, third party prosecution may proceed.
These developments follow the resignation of Rumsfeld as Secretary of Defense. Under that role, Rumsfeld could claim diplomatic immunity, allowing him to freely represent the interests of the United States without interference or persuasion of foreign governments. With the inaction of the Military Commissions Act (MCA), prosecutors argue that the US government may not prosecute Rumsfeld or others, effectively granting them full immunity. The MCA also prevents ex post facto prosecution and creates a defense by narrowly defining liability under the War Crimes Act.
Federal prosecutors in Germany rejected appeals by the CCR. In their decision, German officials stated that the allegations did not occur in, by, or against Germany interests. US officials have stated there were no such incidents of torture. This is in contrast to the CCAIL.
The Associated Press highlights documents by the Federal Bureau of Investigation that confirm "abusive and degrading treatment that including forcing [a plaintiff] to wear a bra, dance with another man, stand naked in front of woman and behave like a dog." Islam holds those as offensive and degrading acts. Critics argue that only lower officials, such as former Army Brigadier General Janis Karpinski, have been prosecuted for torture. Lawyers prosecuting the case against Rumsfeld have stated that Rumsfeld and others "should not feel they can travel outside the U.S. without risk."
The US is not party to the International Court and holds veto power over any amendments filed before the United Nations.
For in depth analysis of the legal aspects, refer to The American Society of Internatonal Law.
