Marjorie Cohn, President of the National Lawyers Guild observed:
Even though Rumsfeld didn't personally carry out the torture and mistreatment of prisoners, he authorized it. Under the doctrine of command responsibility, a commander can be liable for war crimes committed by his inferiors if he knew or should have known they would be committed and did nothing to stop or prevent them. The U.S. War Crimes Act provides for prosecution of a person who commits war crimes and prescribes life imprisonment, or even the death penalty if the victim dies.
The Pentagon has called the lawsuit "frivolous," "absurd," and "politicized." The news of the charges is just starting to circulate, but the suit is already being cited as the first step in an expected circus of witch hunt-style investigations and trials involving the Bush administration.
Whether the suit will be successful is debatable. It may never actually get to court, but it's great publicity and great copy for the news media.
The first major problem it faces is the fact there's no reason to expect the German government to follow through on a case which is substantially identical to one it dismissed in 2005 and then dismissed again on appeal, especially with a new administration which is harder on terrorism and more pro-American.
Another problem is the Germany's 2002 war crimes law's extraordinarily broad claims of jurisdiction are not recognized by the United States or even by international courts, so the inability to actually punish the subjects of the suit may get it dismissed as a waste of time and resources.
Because of these problems, the decision to go forward with the case would be inherently political and only makes sense if the German government has a desire to make a political point and a willingness to antagonize the United States. Actual prosecution of the case seems improbable, but it's still an excellent way for these activist groups to draw attention to their cause.
Article comments
— go to most recent comments1 - Clavos
Dave,
Whether the suit will be successful is debatable. It may never actually get to court, but it's great publicity and great copy for the news media.
And great talking points/propaganda for the Dems in the looming re-shuffling of Congress.
The Germans still have a lot of hubris...
2 - Dave Nalle
What I find interesting is that the groups initiating the suit are basically all American or dominated by Americans. Very little has been heard from the one German group which is nominally involved.
It makes it seem very much as if it's Americans taking advantage of German law for political advantage in America.
Dave
3 - Arch Conservative
"It makes it seem very much as if it's Americans taking advantage of German law for political advantage in America."
Gee the next thing you know Dave we will have people in America advocating rights for illegal aliens and droning on about a "global society" and "human rights."
Good thing we haven't gotten there yet huh?
4 - Josh in Berlin
Your headline "Rumsfeld to be Sued for War Crimes in Germany" is wrong.
Germany is a free country, i.e. every nutcase can go to a prosecutor.
The German prosecutors have not made any decision in this matter yet
The plaintiffs are Iraqis, not Germans. The plaintiffs are supported by an American NGO, not a German NGO. They WANT to have a criminal investigation in Germany, but it is doubtful whether they will get one.
They have not even contacted the German prosecutors yet. They have just issued a press release, picked up by TIME magazine. That's all that happened, but the American blogosphere goes ballistic and blames Germany, although Germany has not done anything. Crazy.
Apparently, many American bloggers are so convinced that Germans are Anti-American that they can't see straight anymore.
German prosecutors have dismissed similar cases in the past.
This is explained in more detail in the Atlantic Review, which is edited by three German Fulbright Alumni.
5 - Clavos
Dave,
It makes it seem very much as if it's Americans taking advantage of German law for political advantage in America.
Agreed. My comment was directed at the idea that the Germans would have the chutzpah to pass such a law.
6 - Baronius
Yeah, the law is pretty aggressive, but I kind of respect the Germans for it. It avoids the loss of soveriegnty that comes from a 'world court'. Instead, the German government claims soveriegnty over the world, and I can see how that could be scary, so this case will be worth watching.
7 - Dave Nalle
Agree, Clavos. It's uniquely overreaching to pass a law like that. I have to think it was intended to be symbolic, but what it symbolizes is mostly arrogance.
Dave
8 - Dave Nalle
Your headline "Rumsfeld to be Sued for War Crimes in Germany" is wrong.
No, it's in the future tense. He's going to be sued next week. And sued does not mean prosecuted. The groups mentioned in the article are going to file a suit. What a prosecutor does with it remains to be seen. This is very clear in the article.
Germany is a free country, i.e. every nutcase can go to a prosecutor.
The German prosecutors have not made any decision in this matter yet
Yes, this is what the article says, in fact.
The plaintiffs are Iraqis, not Germans. The plaintiffs are supported by an American NGO, not a German NGO.
They are supported by multiple American NGOs and as far as I know at least one German group.
They WANT to have a criminal investigation in Germany, but it is doubtful whether they will get one.
Which ius the same conclusion I make in the article.
They have not even contacted the German prosecutors yet. They have just issued a press release, picked up by TIME magazine. That's all that happened, but the American blogosphere goes ballistic and blames Germany, although Germany has not done anything. Crazy.
Apparently, many American bloggers are so convinced that Germans are Anti-American that they can't see straight anymore.
I believe that if you read this article you'll see that I'm hardly giving undue legitimacy to this suit. Every issue you raise is covered in the article. From what I've seen there has also been very little reaction on blogs. At the time I wrote the article there were exactly 3 articles out on it, one from Time and two were the press releases of the organizations involved.
If Americans are objecting, I suspect they are objecting to what Clavos has pointed out here, the presumptuous of the German legal system in claiming universal jurisdiction.
German prosecutors have dismissed similar cases in the past.
Again, as is expalained in the article.
Perhaps before you get all hot and bothered about an article you shoult take a few minutes to read it.
Dave
9 - Dr. Kurt
As far as I can figure, war is the ultimate crime; murder, child abuse, environmental degredation. Should anyone be above the reach of basic law and justice? Why is that a problem, or "political"?
10 - Josh in Berlin
Okay, your headline is correct. My apologies.
"you read this article you'll see that I'm hardly giving undue legitimacy to this suit."
Yes, but who reads the entire article?
Though, the first sentence of your post reads: "It appears that Secretary of Defense Donald Rumsfeld is about to be charged with war crimes in Germany."
Only the prosecutor can charge someone, right?
"About to be charged" suggests that you think this law suit has a good chance in Germany.
Re reaction in other blogs, here are a few examples of Nazi comparisions.
11 - Clavos
Yes, but who reads the entire article?
Um, intelligent people who actually want to have a meaningful discussion and not make irrelevant comments and erroneous assumptions?
Just a thought...
12 - Davd Nalle
As far as I can figure, war is the ultimate crime; murder, child abuse, environmental degredation. Should anyone be above the reach of basic law and justice? Why is that a problem, or "political"?
No one should be above the reach of justice. The problem here is one of jurisdiction and national sovereignty. Germany is essentially claiming jurisdiction over other countries with this law. Should the US be able to do the same? Do people in Germany want us to come over there and start seizing terror suspects? The idea of universal jurisdiction totally flies in the face of the traditions of international law and can lead to all sorts of problems. War crimes and the like ought to be tried either in the country involved or in an international court, not in the courts of a third party who thinks they have universal authority.
Dave
13 - Davd Nalle
Though, the first sentence of your post reads: "It appears that Secretary of Defense Donald Rumsfeld is about to be charged with war crimes in Germany."
That's the 'grabber'. It's designed to pique the interest of the reader. And certainly the groups involved in this suit want it to appear as if Rumsfeld is being charged. The article then goes on to point out how that impression is unfounded.
Dave
14 - Ruvy in Jerusalem
I find the anger of Americans at the "hubris" of the Germans rather amusing. This same trash goes on in Europe where Israeli miliary officiers have to worry about not being arrested in various European countries for "war crimes" and nobody says boo. Now that an American NGO has taken advantage of this German law to attempt to bring an American official to justice, as it were, Americans are suddenly discovering German hubris.
Let me get the shoehorn to help you all wear the new shoes of "world justice." They might cause a few blisters and pains as you lose your sovereignty to international law and international world opinion, but eventually they'll fit just fine...
15 - John Q. Public
And I find it more than amusing that someone who advocates that a small ethnic minority are the Chosen of God should even begin to mention hubris about any other human being's actions.
I also recognize the fact that the legal opinions of White House Counsel, who is now the Attorney General, to remove the U.S. from any kind of world court oversight was done years in advance for just this contingency.
16 - Christopher Rose
If memory serves, the USA already has some laws where it claims jurisdiction outside of its borders. Are we opposed to that too?
17 - Clavos
This same trash goes on in Europe where Israeli miliary officiers have to worry about not being arrested in various European countries for "war crimes" and nobody says boo.
Not the same thing Ruvy.
Any country has the right to pass laws and enforce them within its own borders.
What I called "hubris" was the Germans' unilaterally passing a law they claim has force outside their borders. If the Germans were to pass a law enabling them to arrest an Israeli officer in, oh I dunno, Hoboken, for any reason, including war crimes, I would characterize that as hubris, too.
18 - Clavos
If memory serves, the USA already has some laws where it claims jurisdiction outside of its borders.
I'm not aware of that. What are they, CR?
19 - John Q. Public
Well then Clavos, what are your thoughts on the Military Commissions Act?
Since it is now U.S. law that anyone can be arrested and confined without trial, waterboarded into confession, and have that confession as well as hearsay evidence also gained form torture, used against them in a closed trial without the benefits of habeus corpus?
the hubris of the White House far outstrips anything the German law even attempts, and as has been pointed out above, no U.S. citizen has been prosecuted under said law, yet.
The same cannot be said about the U.S. law.
20 - Dave Nalle
If memory serves, the USA already has some laws where it claims jurisdiction outside of its borders.
It's not impossible, but I can't think of any offhand. And if such laws exist they're just as stupid and worthless as the one in Germany.
The US does believe in more standard ideas like extradition for crimes. Like most nations we expect other countries to return criminals indicted in our courts to us.
This is another area where Europeans have been pretty high handed, as with France which has refused to return some murderers to the US because we might execute them - in effect trying to impose their legal standards on us.
Dave
21 - Dave Nalle
Since it is now U.S. law that anyone can be arrested and confined without trial, waterboarded into confession, and have that confession as well as hearsay evidence also gained form torture, used against them in a closed trial without the benefits of habeus corpus?
That's hardly an accurate description of the MCA, but I guess you pick your information on GOP policies up second hand. The MCA prohibits waterboarding and evidence based on torture, plus the 'hearsay' evidence provision has some relatively sound reasoning behind it, even if I don't agree with that aspect or the habeas corpus exceptions.
the hubris of the White House far outstrips anything the German law even attempts, and as has been pointed out above, no U.S. citizen has been prosecuted under said law, yet.
The same cannot be said about the U.S. law.
I hate to be pedantic, but no one has been prosecuted under the MCA yet either.
Dave
22 - Clavos
One big difference, JQP.
The MCA specifically cites "alien unlawful enemy combatants engaged in hostilities against the United States" (emphasis mine).
The German law makes no such distinction; it attempts to allow the Germans to prosecute anyone, even if the "crimes" are not committed against Germany or its citizens.
Hubris.
23 - Martin Lav
In case you missed the point of Nalle's article:
"the suit is already being cited as the first step in an expected circus of witch hunt-style investigations and trials involving the Bush administration."
and to prove the point:
"Actual prosecution of the case seems improbable, but it's still an excellent way for these activist groups to draw attention to their cause."
It would appear that Bush Administration supporters are lying in wait for just such fodder to prove their witch-hunt assertions that the LEFT will certainly unleash based on last weeks election results.
Deny Nalle?
24 - John Q. Public
Clavos, what you fail to mention is that only an unfounded accusation is required to categorize an individual under said law.
If the President accuses someone, they are then categorized, with no recourse to a judge to rectify any errors.
In some cases, specifically Iraq, we are talking about a pre-emptive invasion, and citizens of that country being assigned into the category you mention.
I'm not excusing the German law, what I am saying is that under this Administration, the U.S. is doing at least as poorly, if not more so when it comes to the hubris allegation.
25 - John Q. Public
Dave, in your comment 21, you make some good points, but miss out on others.
A simple example is that the U.S. has already held and tortured prisoners before the MCA was signed into law, based on the legal writings of now Attorney General Gonzalez.
And the hearsay as well as waterboarding testimony is scheduled to be used against Khalid Sheik Mohammed and others, according to White House and Pentagon statements.
I can easily agree that both the German law, and the American one are bad. I merely pointed out that in no way can the U.S. claim innocence or hubris in the light of what this administration has done for the last few years.