A 384-page document is currently sitting in the offices of Germany's federal prosecutor in Karlsruhe -- and causing headaches for the authorities there. They never asked for it, but now they have to deal with it. The only question is how.
The reason the authorities would be quite happy if the lengthy document would simply go away is because it is a lawsuit against 14 powerful men and one woman. Donald Rumsfeld, the former United States Secretary of Defense, is one of them. Others include Alberto Gonzales, the current Attorney General of the United States, CIA director George Tenet, and Lieutenant General Ricardo S. Sanchez, the US general who served as the commander of coalition forces in Iraq from June 2003 to June 2004. According to the document, these members of the US elite violated both international law and the United Nations Convention Against Torture in Abu Ghraib prison and the Guantánamo Bay detention camp.
The lawsuit was filed by Berlin-based lawyer Wolfgang Kaleck. Politically, it's a time-bomb which could cause serious problems for US-German relations. Angela Merkel has made a persistent effort during recent months to cultivate a good relationship with Germany's overseas ally. An arrest warrant for top US military authorities and government members would likely reverse a lot of this work and lead to a new low point in trans-Atlantic relations. Representatives have been negotiating behind closed doors for months about whether Germany should investigate Rumsfeld's alleged crimes or not. Germany's federal prosecutor Monika Harms will reach a decision on the issue during the coming weeks.
Kaleck is basing his lawsuit on the Code of Crimes Against International Law, which came into force in Germany in 2002. Under the code, Germany's chief prosecutor is entitled to prosecute individuals accused of genocide, crimes against humanity or war crimes -- irrespective of the location of the defendant or plaintiff, the place where the crime was carried out or the nationality of the persons involved.
The crimes listed in the code are considered fundamental crimes whose prosecution lies in the interest of humanity and can therefore not be considered simply a domestic affair of the country involved. The German authors of the legal code were thorough, and their text is considered exemplary.
Kaleck is no anti-American peacenik in a woolen sweater. He says he, as a lawyer, is only applying existing law. He has compiled testimonies by torture victims. Janis Karpinski, a former general who was the director of Abu Ghraib prison in 2003, has said she is willing to testify against Rumsfeld. And damning documents show torture was condoned by the top levels of the US administration.
A Dec. 2, 2002 memorandum sanctions interrogation techniques including subjecting prisoners to so-called "stress positions" such as forcing them to stand for hours, placing them in solitary confinement for up to 30 days, forcibly undressing them and taking advantage of their "individual phobias" such as their fear of dogs. The memorandum was revoked after a few months, due to legal concerns, and was followed by new memoranda. Then the picture of the US soldier Lynndie England holding a dog's leash around the neck of a prisoner lying on the floor hit the world's media.
"We're not so arrogant as to think we can put Rumsfeld behind bars on the first attempt," says Kaleck. "Patience is needed." The lawyer already filed a lawsuit against Rumsfeld two years ago. But Germany's then-federal prosecutor Kay Nehm stopped investigations by arguing Germany could only take action if the United States was unable or unwilling to prosecute Rumsfeld -- something Nehm argued could not be assumed on the basis of the existing evidence.
The US administration already took that first legal complaint very seriously. The Pentagon expressed concern about what they called a "frivolous lawsuit." Rumsfeld himself threatened to cancel his scheduled appearance at the Munich Security Conference, and only traveled to Munich after Nehm dismissed the case.
"Rumsfeld should know he will be held responsible for his acts even though he is currently on safe territory," Kaleck says. He sees the fact that the former Secretary of Defence was afraid to travel to Munich as a first success.
There are several reasons for trying a second time, Kaleck says. First of all, it's now clear that those members of the US administration who are responsible for the alleged crimes have no fear of legal prosecution in the United States -- which means Germany's Federal Prosecutor's Office can no longer claim the accused face legal action in their own country. Secondly, there is now much more evidence to support the charges. It's also a "happy coincidence" that Rumsfeld resigned in 2006, thereby losing his immunity from prosecution, Kaleck feels.
American lawyer Benjamin Ferencz believes the Germans have a responsibility to take action -- and, as one of the prosecutors during the Nuremberg Trials, he speaks with considerable moral authority. According to Ferencz, one of the key lessons of Nuremberg -- and one Germany should not forget -- is that offices and titles should not protect criminals from prosecution.
Michael Ratner, Kaleck's client from the Center for Constitutional Rights in New York, believes that if Germany does nothing again this time, then it will look as if the US can get away with anything. Ratner, who is himself a lawyer, has decided to press charges in Germany because he believes the Germans will refuse to let themselves be "pushed around" by the United States.
But for now at least, the German government is trying to duck the issue. The Ministry of Justice and the Foreign Ministry insist questions should be directed to the Federal Prosecutor's Office -- which, however, refuses to comment on ongoing court cases. Even former Minister of Justice Herta Däubler-Gmelin, who worked to get the 2002 Code of Crimes Against International Law made into law, does not want to talk about the lawsuit against Rumsfeld.
Those who are prepared to comment do so in a reserved and noncommittal way. Gert Weisskirchen, the foreign policy speaker of the Social Democratic Party's parliamentary faction, believes it is "politically unwise" to prosecute someone like Rumsfeld in this way. "We're not the world police," says Andreas Schmidt from the Christian Democrat Union (CDU), who is the chairman of the Bundestag's legal committee. "It can't be in Germany's interests to conduct a legal investigation into the activities of a former minister of an allied country," he says.
In an uncomfortable position
Foreign policy considerations should not be allowed to play a role in the Federal Prosecutor's Office decisions, warns Claus Kress, a professor of international law who co-authored the 2002 code. "Germany would lose its credibility in the field of international law if it did not investigate a case where there is reasonable suspicion, simply because of foreign policy concerns."
But the Federal Prosecutor's Office does have a way to avoid Germany being forced into the role of international cop: The country's code of criminal procedure allows the court to abandon criminal proceedings if the accused is not on German territory.
This loophole has already allowed the Federal Prosecutor's Office to avoid pressing uncomfortable charges once before. A year and a half ago, it had the option of taking action against the former interior minister of Uzbekistan, Zakir Almatov, who is considered one of the main people responsible for the bloody repression of a May 2005 insurrection in the Uzbek city of Andijan. But criminal proceedings against Almatov would have put the German government in an uncomfortable position: The German military has been using the Uzbek air base Termez as a support base for its activities as part of the International Security Assistance Force (ISAF) in Afghanistan.
Even though the EU banned Almatov from entering the bloc, he was able to get medical treatment in a Hanover hospital and then leave Germany without difficulties -- because he had been provided with a special German visa. And it was only after he had left the country that the Federal Prosecutor's Office announced criminal proceedings would not continue -- since he was no longer in the country.
Rumsfeld will be unlikely to choose to spend his vacation in Germany, should the Federal Prosecutor's Office decides to press charges. Kaleck doesn't believe Rumsfeld's absence constitutes a good reason to reject the lawsuit. He emphasizes that witnesses and evidence could be presented to the court in Germany. After all, verifying evidence is also standard legal procedure, he says.
The human rights organization Human Rights Watch now takes a critical view of the investigators in Karlsruhe. Lotte Leicht, the director of the organization's EU branch, speaks of Germany merely paying "lip service" to international law. A perfect law is worthless if it's not applied, she insists, arguing that Spain, Italy and the Netherlands are much more committed than Germany in this respect.
It's not out of the question that charges will be pressed against Rumsfeld in those countries soon. "These boys can no longer sleep peacefully," says Ratner. After all, there is no statute of limitations for war crimes and crimes against humanity.