Prosecuting the US for War Crimes: Legal Fight against Rumsfeld Heads to Spain

Attempts to prosecute Donald Rumsfeld in Germany for war crimes have failed -- again. Now lawyers are planning to go after the former US Defense Secretary in Spanish courts.

Human rights activists are trying to prosecute Donald Rumsfeld, shown here in an October 2006 file photo, for war crimes.
AFP

Human rights activists are trying to prosecute Donald Rumsfeld, shown here in an October 2006 file photo, for war crimes.

If at first you don't succeed, try, try again, goes the saying. To which could be added: try elsewhere. That's the approach human rights activists who want to prosecute former US Secretary of State Donald Rumsfeld for war crimes are taking. They are now planning to file a lawsuit against the former US defense secretary in Spain after a lawsuit against him failed in Germany.

German federal prosecutors Friday rejected a lawsuit which had called for an investigation into alleged war crimes committed by Rumsfeld and 13 other high-ranking US officials, including current US Attorney General Alberto Gonzales, former CIA director George Tenet, and Ricardo Sanchez, the former commander of all US forces in Iraq.

Berlin-based lawyer Wolfgang Kaleck, who filed the German suit last November, is now making plans to file a lawsuit against Rumsfeld and the other defendants in Spain. "We are exploring possibilities in other countries," he told SPIEGEL ONLINE Monday. "We are in contact with lawyers who are well-informed about the legal possibilities in Spain, and we are already designing the Spanish case." He stressed that he would first appeal against the German decision, and that the Spanish lawsuit would not simply be a "translation" of the German complaint, but would be specially drafted for Spain.

Kaleck is acting on behalf of the New York-based Center for Constitutional Rights (CCR), which is leading a coalition of human rights organizations who want Rumsfeld and the others to be prosecuted for war crimes. Their case is based on allegations that Rumsfeld personally ordered and condoned torture at US detention facilities including Guantanamo Bay and the Abu Ghraib prison in Iraq.

German federal prosecutors had already turned down a similar lawsuit in 2005, arguing that the US was responsible for holding any inquiry and that there were no signs that the US authorities and courts would refrain from doing so -- a precondition for pursuing the case in Germany. In rejecting the new lawsuit, Federal Prosecutor Monika Harms cited the same reasons as before, arguing that the defendants should not be prosecuted in Germany because they neither reside in Germany, nor will they soon enter German territory.

The legal foundation for the Rumsfeld lawsuit was Germany's Code of Crimes Against International Law, which came into force in 2002. The legislation allows genocide, crimes against humanity and war crimes to be prosecuted in Germany, irrespective of where the crimes were committed or the nationality of those involved. The CCR argues that because the US has refused to join the International Criminal Court, it is the legal obligation of states such as Germany to take up cases under their universal jurisdiction laws.

The lawyers leading the case had thought they had a better chance of success this time than in 2005, as they had more documentary evidence as well as having Janis Karpinski, the former commander of US military prisons in Iraq, on board as a witness.

The decision to reject the lawsuit was criticized by human rights groups. "If prosecutors let themselves be dominated by political considerations, then the German Code of Crimes Against International Law is worthless and Germany is a banana republic," commented Reed Brody, legal expert of the international non-governmental organization Human Rights Watch. Kaleck described the decision as "political capitulation," complaining that the federal prosecutors had not even investigated the charges before rejecting the lawsuit.

Spain, like Germany, also has universal jurisdiction for prosecuting war crimes, and Kaleck believes it is the country where legal practice involving universal jurisdiction for war crimes is most advanced. He pointed out there are several cases involving universal jurisdiction pending in Spain, including lawsuits into the CIA practice of illegal kidnapping of terrorist subjects known as "extraordinary rendition," which is one of the crimes included in the Rumsfeld suit.

Although preparing the Spanish case will take months and that it is "much too early" to talk about its chances of success, he said he is "quite optimistic."

"We won't let Rumsfeld get off the hook," Kaleck said. "And we are not the only ones -- other lawyers are also interested in our approach. If we don't succeed in Germany, maybe the right opportunity will come in Belgium in five years' time, or in the United States in seven years' time."

dgs/spiegel/ap

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