German Court Asked to Review Decision Not to Investigate Rumsfeld in Torture Case

Today, human rights groups appealed to the Frankfurt High Regional Court in Germany, asking the court to review a German federal prosecutor's decision not to proceed with an investigation into high-ranking U.S. officials' involvement in the abuse and torture of detainees held in Iraq, Afghanistan, and Guantanamo Bay. The request, which names former Defense Secretary Donald Rumsfeld, former Attorney General Alberto Gonzales, former CIA Director George Tenet, and other high-ranking military officers and former government attorneys as the subjects of the investigation, is the second of such requests to be filed in Germany.*

The first complaint was filed in November 2004 by German attorney Wolfgang Kaleck, with the support of U.S. and international human rights groups. A German prosecutor dismissed that request, stating that the nations of the victims and the accused should be given the first opportunity to conduct the criminal prosecutions. However, since that first request was filed, U.S. officials have failed to take any action in investigating the allegations of abuse and torture. Moreover, now that the U.S. Congress has passed the Military Commissions Act, the likelihood that U.S. officials will ever be prosecuted in the United States has become virtually nil.

The MCA, signed into law on October 17, 2006, presents significant legal obstacles to prosecuting U.S. officials in U.S. courts. The MCA narrowly limits the types of conduct for which U.S. officials may be held liable, essentially granting them immunity for particular types of criminal conduct such as acts of torture. In addition, the statute allows defendants to claim, as a defense, that the detention and interrogation tactics they used were "lawful," or that the defendant didn't know that certain types of techniques were unlawful. The Office of Legal Counsel, which advises the Attorney General and the Executive branch on the lawfulness of proposed courses of conduct, has previously stated that certain forms of torture are lawful -- a view that has been widely criticized by legal scholars and the human rights community.

The MCA's broad grant of immunity, particularly for crimes like torture that violate well-recognized human rights standards, disregards the United States' binding obligations under international and domestic law. The United States, as a party to the Convention Against Torture, is bound by the treaty's prohibition against torture. The United States is also obligated under U.S. domestic law not to commit torture. The Foreign Affairs Reform and Restructuring Act of 1998 incorporates article 3 of the CAT, which prohibits countries from transferring individuals to countries where they will more likely than not be tortured. Under U.S. criminal law, the Torture Convention Implementation Act makes it a crime to violate the CAT's anti-torture provisions.

Even though torture is unlawful under domestic and international law, the MCA significantly limits the liability of U.S. officials for their human rights abuses. Furthermore, the U.S. government's unwillingness to enforce these obligations means that injured parties must look to foreign courts to secure justice. Without any guarantee that the United States will enforce its obligations not to torture, we now turn to foreign tribunals to hold perpetrators accountable for committing major human rights abuses.

Human Rights USA supports the German court's review of the prosecutor's decision not to investigate human rights violations committed by U.S. officials. HRUSA has submitted supporting evidence to accompany the petition for review. Among the supporting evidence provided by HRUSA are two complaints filed by HRUSA with the U.S. Department of Justice, seeking an investigation into the CIA's extraordinary rendition program and into the detainee abuse taking place in Iraq, Afghanistan, and Guantanamo Bay, as well as an affidavit by HRUSA's Executive Director, Morton Sklar, detailing the organization's efforts to seek criminal accountability for these major human rights abuses. The fact that HRUSA's requests for investigation went unanswered by the U.S. government only underscores the necessity for the German court's review of this case.

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*Under German law, German courts may exercise universal jurisdiction over defendants who are alleged to have committed genocide, crimes against humanity, and war crimes, regardless of the nationality of the parties or the location where the alleged acts took place. However, German law does not obligate federal prosecutors to open an investigation.