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Torture in Abu Ghraib: The Complaint against Donald Rumsfeld under the German Code of Crimes against International Law

Published online by Cambridge University Press:  06 March 2019

Andreas Fischer-Lescano

Extract

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The thesis that, after September 11, 2001, there were categorical differences between Europe and the U.S. in their approaches to the dangers of terrorism, rests essentially on the claim that “Old Europe's” constitutional pacifism has failed. In this view, the global pax americana has a Hobbesian commitment to military power, and this is said to be the form adequate to realize the universal concept of peace. In principle, this is not an especially original notion. Robert Kagan, who nevertheless helped it gain a certain prominence, is merely the intellectual beneficiary of a series of classical theorists of realpolitik who agreed that conflicts could, “at the end of the day,” only be settled politically and not legally. Ironically, the prophets of this thesis were confessed Old Europeans. Carl Schmitt as well as Hans Morgenthau laid the cornerstone of these forms of cosmography, insisting that, on a global level, it is not law that rules but the free interplay of state-forces.

Type
Developments
Information
German Law Journal , Volume 6 , Issue 3 , 01 March 2005 , pp. 689 - 724
Copyright
Copyright © 2005 by German Law Journal GbR 

References

1 Kagan, Robert, Power and Weakness, 113 (June and July) POLICY REVIEW 5 (2002) at http://www.policyreview.org/JUN02/kagan.html; see also the German Law Journal's special issue “The New Transatlantic Tension and the Kagan Phenomenon” at 4:9 German L. J. 863 (2003), especially Sonja Buckel & Jens Wissel, Welcome to the Desert of Real Imagination, 4:9 German L. J. 971 (2003) at http://www.germanlawjournal.com/article.php?id=310.Google Scholar

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15 The relevant reports and memoranda are also documented in Greenberg & Dratel, supra note 14, at 383 and also available at http://web.amnesty.org, www.aclu.org and www.hrw.org.Google Scholar

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17 For an overview, see Paola Gaeta, May Necessity be Available as a Defence for Torture in the Interrogation of Suspected Terrorists?, 2 J. Of Int'l Crim. Justice 785 (2004); Ralf Poscher, Die Würde des Menschen ist unantastbar, Juristenzeitung 756 (2004), and Antonio Cassese, Are International Human Rights Treaties and Customary Rules on Torture binding upon US Troops in Iraq?, 2 2 J. Of Int'l Crim. Justice 872 (2004); see also Office of Legal Counsel, U.S. Department of Justice, Memorandum for James Comey, Deputy Attorney General, Legal Standards Applicable Under 18 U.S. §§ 2340-2340A, 30 December 2004, in which the US-Administration distances itself from former memos, www.usdoj.gov; on this see: Jeffrey Smith & Dan Eggen, Justice Expands ‘Torture’ Definition, Washington Post, 31 December 2004.Google Scholar

18 Kaleck, supra note 4, at 8.Google Scholar

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20 Kant, Immanuel, Schrift zum ewigen Frieden (1795), in: idem, WERKAUSGABE, Vol. 11, 191 (Wilhelm Weischedel ed., 8th ed. 1991), at 216.Google Scholar

21 An English translation of the CCAIL and the explanation of the German government introducing the CCAIL can be found at the homepage of the Max Planck Institute for Foreign and International Criminal Law, at www.iuscrim.mpg.de/forsch/legaltext/VStGBengl.pdf. See The German International Criminal Code (VCtGB), in 2003 Annual of German & European Law 667 (Russell A. Miller and Peer C. Zumbansen eds., 2005); Christoph J.M. Safferling, Germany's Adoption of an International Criminal Code, in 2003 Annual of German & European Law 365 (Russell A. Miller and Peer C. Zumbansen eds., 2005).Google Scholar

22 BGBl I 2002, 2254.Google Scholar

23 On the principle of universal jurisdiction, recognized in international customary law, see the contributions in Universal Jurisdiction: National Courts and the Prosecution of Serious Crimes Under Internationa Law (Stephen Macedo, ed., 2004) and Luc Reydams, Universal Jurisdiction: International and Municipal Legal Perspectives (2003); Anthony Sammons The ‘Under-Theorization’ of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts, 21 Berkley J. of Int'l L. 111 (2003); Steven R. Ratner & Jason S. Abrams, Accountability for Human Rights Atrocities in International Law: Beyond the Nuremberg Legacy 151 (2nd ed., 2001).Google Scholar

24 This is the technical term for “universal jurisdiction” in German law; literarily translated: “principle of global law”.Google Scholar

25 See Gerhard Werle Volkerstrafrecht 39 (2003).Google Scholar

26 Rome Statute Of The International Criminal Court UN Doc. 2187 U.N.T.S. 90, entered into force 1 July 2002.Google Scholar

27 IStGH-Statutgesetz [Law Regarding the Statute of the ICC] – IStGHG, BGBl. 2000 II, 1393.Google Scholar

28 On the efforts of operationaizing the norm: Roger Clark, Rethinking Aggression as a Crime, LJIL 15, 859 (2002); see also Benjamin Ferencz, Defining International Aggression: the Search for World Peace (1975); General Assembly Res. 3314 (XXIX), 29 Resolution number, U.N. GAOR, session number, Supp. No. 31, at 24, U.N. Doc. A/9631 (1975).Google Scholar

29 See Art. 12 ICC-Statute (Preconditions to the exercise of jurisdiction):Google Scholar

(1) A State which becomes a Party to this Statute thereby accepts the jurisdiction of the Court with respect to the crimes referred to in article 5.Google Scholar

(2) In the case of article 13, paragraph (a) or (c), the Court may exercise its jurisdiction if one or more of the following States are Parties to this Statute or have accepted the jurisdiction of the Court in accordance with paragraph 3:Google Scholar

(a) The State on the territory of which the conduct in question occurred or, if the crime was committed on board a vessel or aircraft, the State of registration of that vessel or aircraft;Google Scholar

(b) The State of which the person accused of the crime is a national.Google Scholar

(3) If the acceptance of a State which is not a Party to this Statute is required under paragraph 2, that State may, by declaration lodged with the Registrar, accept the exercise of jurisdiction by the Court with respect to the crime in question. The accepting State shall cooperate with the Court without any delay or exception in accordance with Part 9.Google Scholar

30 On the U.S.-resistance towards the ICC see Monroe Leigh, The United States and the Statute of Rome, Am. J. of Int'l L. 95, 124 (2001).Google Scholar

31 Joint sep. opinion, Judges Higgins, Kooijmans and Buergenthal, I.C.J., Arrest Warrant of 11 April 2000 (Dem. Rep. Congo v. Belg.), I.C.J. Rep. 2002, pp. 121. und I.L.M. 41 (2002), pp. 536, available at http://www.icj-cij.org; as the ICC has no jurisdiction via the ‘universal jurisdiction principle’ this estimation is not simply a repetition of the principle of ‘complementarity’ mentioned in art. 17 ICC-Statute. The latter governs the admissibility of ICC-proceedings, in cases the ICC has jurisdiction via territoriality or active personality principles of jurisdiction, on the systematic see Markus Benzing, The complementarity regime of the International Criminal Court, 7 Max Plank Yearbook Of United Nations Law 591 (2004).Google Scholar

32 § 1 CCAIL reads: “This Act shall apply to all criminal offences against international law designated under this Act, to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany.”Google Scholar

33 Protocols of the German Bundestag, 14/233 25/4/2002, 23270.Google Scholar

34 On the norm of § 153f Code of Criminal Procedure see below.Google Scholar

35 Gerhard Werle & Florian Jeßberger, Völkerstrafgesetzbuch, 7 Juristenzeitung 725 (2002); See Cristina Hoss & Russell Miller, German Federal Constitutional Court and Bosnian War Crimes: Liberalizing Germany's Genocide Jurisprudence, in 44 German Yearbook of Int'l L. 576 (2001).Google Scholar

36 § 8 para 1 CCAIL: “Whoever in connection with an international armed conflict or with an armed conflict not of an international character […] 3. treats a person who is to be protected under international humanitarian law cruelly or inhumanly by causing him or her substantial physical or mental harm or suffering, especially by torturing or mutilating that person.”Google Scholar

37 The committee formed according to the International Anti-Torture Convention has continually criticized precisely this failing of German law (see most recently A/53/44, no. 185, available at http://www.unhchr.ch/tbs/doc.nsf). This is also pertinent to the so-called Daschner case, i.e. in respect to the accusations of torture against the former Vice President of the Frankfurt Police Headquarters, since in this case the indictment and sentence were only related to duress. In general, the Committee has criticized German law as follows: “The Committee is concerned that there are certain openly formulated legal determinations according to which, however, it is permissible under certain circumstances severely to restrict the legally guaranteed rights of persons who are in police custody on their way to being tried […] Even invoking the “principle of proportionality” can, in the absence of any binding decisions of German courts, lead to arbitrary restrictions of these guaranteed rights” (A/53/44, no. 189). See also the European Convention on the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (BGBl. 1989 II p. 946) and the criticism of the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), that visited Germany in December 2000 (2/8/2001, CPT/Inf (2003) 20; Answer of the German government of 14 June 2002 (CPT/Inf (2003) 21), both available at http://www.cpt.coe.int/documents/deu/2003-21-inf-eng.htm. The reports of the preceding visits of the CPT in the Federal Republic and the answers of the Federal government are published under the following reference numbers: CPT/Inf (93) 13; CPT/Inf (93) 14; CPT/Inf (97) 9 and CPT/Inf (99) 10).Google Scholar

38 Convention against torture and other cruel, inhuman or degrading treatment or punishment, 10.12.1984 (BGBl. 1990 II p. 246; 1465 UNTS 85).Google Scholar

39 Geneva Conventions of 12 August 1949 on the Treatment of Prisoners of War (BGBl. 1954 II 781; 75 UNTS 135, 150).Google Scholar

40 Art. 129. para. 2 Geneva Convention on the Treatment of Prisoners of War (see supra note 39).Google Scholar

41 ICTY, Furundzija, December 12, 1998, no. 159, I.L.M. 38 (1999), pp. 317 et seq.; ICTR, Akayesu, 2 September 1998, no. 593, I.L.M. 37 (1998), pp. 1399 et seq.; see Michael Bothe, War Crimes, in: The Rome Statute of the International Criminal Court, Vol. 1, 379 (A. Cassese, P. Gaeta & J.R.W.D. Jones eds., 2002), Gerhard Werle Volkerstrafrecht 338 (2003), and also Sean D. Murphy, Contemporary Practice of the United States Relating to International Law: International Criminal Law: U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison, 98 Am. J. of Int'l L. (2004), and The Association of the Bar of the City of New York, Human Rights Standards Applicable to the United States’ Interrogation of Detainees, 59 The Record of The Association of the Bar of New York 271 (2004).Google Scholar

42 Art. 1 of the Convention against torture and other cruel, inhuman or degrading treatment or punishment.Google Scholar

43 Lewis, Neil A., Red Cross Finds Detainee Abuse in Guantanamo, The New York Times, 30 November 2004, at 1.Google Scholar

44 Id.Google Scholar

45 Id.Google Scholar

46 Beginning with the trial of Charles Graner, reservist of the 372nd Military Police Company in January 2005, who was convicted of inflicting serious bodily harm, conspiracy, prisoner mistreatment, sexual assault and other crimes (see Frankfurter Rundschau, 16 January 2005).Google Scholar

47 Kaleck, supra note 4, at 8.Google Scholar

48 See Werle & Jeßberger, supra note 35, at 725.Google Scholar

49 § 4 CCAIL reads: “(1) A military commander or civilian superior who omits to prevent his or her subordinate from committing an offence pursuant to this Act shall be punished in the same way as a perpetrator of the offence committed by that subordinate. […] (2) Any person effectively giving orders or exercising command and control in a unit shall be deemed equivalent to a military commander. Any person effectively exercising command and control in a civil organization or in an enterprise shall be deemed equivalent to a civilian superior.”Google Scholar

50 § 13 para 1 CCAIL: “A military commander who intentionally or negligently omits properly to supervise a subordinate under his or her command or under his or her effective control shall be punished for violation of the duty of supervision if the subordinate commits an offence pursuant to this Act, where the imminent commission of such an offence was discernible to the commander and he or she could have prevented it.” See also § 14 para 1 CCAIL: “A military commander or a civilian superior who omits immediately to draw the attention f the agency responsible for the investigation or prosecution of any offence pursuant to this Act, to such an offence committed by a subordinate, shall be punished with imprisonment for not more than five years.” On the systematic see e.g. Kai Ambos, Der Allgemeine Teil Des Voklerstrafrechts 2002.Google Scholar

51 § 4 CCAIL.Google Scholar

52 The documents cited can be found in The Torture Papers: The Road to Abu Ghraib 181 (Karen Greenberg & Joshua Dratel eds., 2005); see also the report by Sean D. Murphy, Contemporary Practice of the United States Relating to International Law: International Criminal Law: U.S. Abuse of Iraqi Detainees at Abu Ghraib Prison, 98 Am. J. of Int'l L. 591 (2004), and The Association of the Bar of the City of New York, Human Rights Standards Applicable to the United States’ Interrogation of Detainees, 59 The Record of The Association of the Bar of New York 271 (2004); see also the recent Memorandum of the Office of Legal Counsel, U.S. Department of Justice, Memorandum for James Comey, Deputy Attorney General, supra note 17.Google Scholar

53 See the general thesis of Giorgio Agamben, The State of Excepton (Homo Sacer II.I) (2004).Google Scholar

54 The relevant rules are those of international public law, to be applied via § 20 Para. 2 of the Gerichtsverfassungsgesetz (The Organization of the Courts Act (cited GVG) is translated as the Judicature Act and the Constitution of the Courts Act.) in conjunction with Art. 25 of the Grundgesetz (GG – Basic Law).Google Scholar

55 I.C.J., Arrest Warrant (Dem. Rep. Congo v. Belg., 14 February 2002, see supra note 31), para 61 reads: “Accordingly, the immunities enjoyed under international law by an incumbent or former Minister for Foreign Affairs do not represent a bar to criminal prosecution in certain circumstances. First, such persons enjoy no criminal immunity under international law in their own countries, and may thus be tried by those countries’ courts in accordance with the relevant rules of domestic law. Secondly, they will cease to enjoy immunity from foreign jurisdiction if the State which they represent or have represented decides to waive that immunity. Thirdly, after a person ceases to hold the office of Minister for Foreign Affairs, he or she will no longer enjoy all of the immunities accorded by international law in other States. Provided that it has jurisdiction under international law, a court of one State may try a former Minister for Foreign Affairs of another State in respect of acts committed prior or subsequent to his or her period of office, as well as in respect of acts committed during that period of office in a private capacity. Fourthly, an incumbent or former Minister for Foreign Affairs may be subject to criminal proceedings before certain international criminal courts, where they have jurisdiction. Examples include the International Criminal Tribunal for the former Yugoslavia, and the International Criminal Tribunal for Rwanda, established pursuant to Security Council resolutions under Chapter VII of the United Nations Charter, and the future International Criminal Court created by the 1998 Rome Convention. The latter's Statute expressly provides, in Article 27, paragraph 2, that “[i]mmunities or special procedural rules which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person”.Google Scholar

56 As a whole, if one includes the decision of the Divisional Court, there were four decisions in the Pinochet affair: (1) Divisional Court Decision: Augusto Pinochet Ugarte, [1999], I.L.M. 68 et seq. (Q.B. Div'l Ct. 1998); (2) Pinochet 1: R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, 3 W.L.R. 1456 (H.L. 1998); nullified by: (3) Pinochet 2: R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (no.2), 2 W.L.R. 272 (H.L. 1999) und (4) Pinochet 3: R v. Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte, 2 W.L.R. 827 (H.L. 1999).Google Scholar

57 Vienna Convention on Diplomatic Relations of April 18, 1961, 500 UNTS 95.Google Scholar

58 Vienna Convention on Consular Relations of April 24, 1963, 596 UNTS 262.Google Scholar

59 UN Convention on Special Missions, Annex to UNGA Resolution 2530 (XXIV) of 8 December 1969Google Scholar

60 ICJ, Arrest Warrant (Dem. Rep. Congo v. Belg., 14 February, 2002, see supra note 31).Google Scholar

61 M. Cherif Bassiouni & Edward Wise, Aut Dedere Aut Judicare: The Dduty To Eextradite Or Prosecute In International law (1995).Google Scholar

62 ICJ, Arrest Warrant (Dem. Rep. Congo v. Belg., February 14, 2002, see supra note 31); Dapo Akande, International Law Immunities and the International Criminal Court, 98 Am. J. of Int'l L. 407 (2004).Google Scholar

63 Thus already Michael Bothe, Die strafrechtliche Immunität fremder Staatsorgane, 31 Heidelberg J. Of Int'l Law 246 (1971).Google Scholar

64 Certain Criminal Proceedings in France (Republic of the Congo v. France), Order of 17 June 2003, I.C.J. available at www.icj-cij.org.Google Scholar

65 Id.Google Scholar

66 Similarly the argumentation in the framework of the weighing of rights by the International Criminal Court, Case Concerning Certain Criminal Proceedings in France (Republic of the Congo v. France), Decision of 17 June 2003; the French investigative procedure has in the meanwhile been discontinued, see Chambre d'instruction de la Cour d'appel de Paris, November 22, 2004.Google Scholar

67 Instructive summary by Akande, supra note 62.Google Scholar

68 An exception is made for the International Criminal Court, Art. 27 (2) Rome Statute.Google Scholar

69 Cassese, Antonio, When may Senior State Officials be tried for International Crimes? Some Comments on the Congo v. Belgium Case, EJIL 853 (2002).Google Scholar

70 See the criticism of Judge van den Wyngaert: “In the present case, there is no settled practice (usus) about the postulated “full” immunity of Foreign Ministers to which the International Court of Justice refers in paragraph 54 of its present Judgment. There may be limited State practice about immunities for current or former Heads of State in national courts, but there is no such practice about Foreign Ministers. On the contrary, the practice rather seems to be that there are hardly any examples of Foreign Ministers being granted immunity in foreign jurisdictions.” (I.C.J., Arrest Warrant (Dem. Rep. Congo v. Belg., 14 February 2002, see supra note 31, diss. Opinion van den Wyngaert, para 13).Google Scholar

71 Id.Google Scholar

72 See Art. 129 of the Third Geneva Convention. On this obligation see Christian Tomuschat, The duty to prosecute international crimes committed by individuals, in Festschrift Helmut Steinberger: Tradition und Weltoffenheit des Recht 315 (Hans-Joachim Cremer et al. (eds.), 2002).Google Scholar

73 Therefore the criticism of Adam Day, Crimes Against Humanity as a Nexus of Individual and State Responsibility: Why the ICJ Got Belgium v. Congo Wrong, 22 BERKELEY J. INT'L L. 489 (2004) concerning the I.C.J. decision in the arrest warrant case (Dem. Rep. Congo v. Belg., 14 February, 2002, see supra note 31, especially para 59 of the decision) is justified.Google Scholar

74 Report of the International Law Commission on the work of its forty-eighth session, 6 May-26 July 1996, U.N. GAOR, 51st Sess., Supp. No. 10, at 41, U.N. Doc. A/51/10 (1996).Google Scholar

75 Art. 16 permits specific Security Council Resolutions for the grant of immunity in limited cases. On this legally doubtful strategy of securing immunity see Carsten Stahn, The Ambiguities of Security Council Resolution 1422 (2002), 14 EUROPEAN JOURNAL OF INTERNATIONAL LAW 85 (2003), and Marc Weller, Undoing the global constitution: UN Security Council action on the International Criminal Court, 78 International Affairs 693 (2002).Google Scholar

76 Even the German administration, its noble assertions notwithstanding, has had recourse to this regulatory approach and has reached exemption or immunity agreements, for example, in the military-technical convention with the Afghan interim government and in the troop stationing accord between Germany and Uzbekhistan of 12 Febryary 2002. The military-technical accord of 4 January 2002 negotiated between the ISAF and the Afghan interm government regulates in its Annex A (Arrangements Regarding the Status of the International Security Assistance Force), para. 4 questions of immunity: “The ISAF and supporting personnel, including associated liaison personnel, will be immune from personal arrest or detention. The ISAF and supporting personnel, including associated liaison personnel, mistakenly arrested or detained will be immediately handed over to ISAF authorities. The Interim Administration agree that ISAF and supporting personnel, including associated liaison personnel, may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation” (the MTA can be found at <www.operations.mod.uk/isafmta.pdf> and in: Harvey Langholtz, Boris Kondoch & Alan Wells, International Peacekeeping, The Yearbook of International Peace Operations 8 (2004), documentation on CDROM)). Nevertheless, the Federal government does not see that these clauses compromise its cooperation with the ICC. It assumes “that contracting states have, with the ratification of the Statute, already given their approval to a possible transfer to the ICC” (answer of the Federal administration to a parliamentary inquiry, August 1, 2002, BT–Drs. 14/9841, p. 2).+and+in:+Harvey+Langholtz,+Boris+Kondoch+&+Alan+Wells,+International+Peacekeeping,+The+Yearbook+of+International+Peace+Operations+8+(2004),+documentation+on+CDROM)).+Nevertheless,+the+Federal+government+does+not+see+that+these+clauses+compromise+its+cooperation+with+the+ICC.+It+assumes+“that+contracting+states+have,+with+the+ratification+of+the+Statute,+already+given+their+approval+to+a+possible+transfer+to+the+ICC”+(answer+of+the+Federal+administration+to+a+parliamentary+inquiry,+August+1,+2002,+BT–Drs.+14/9841,+p.+2).>Google Scholar

77 See NATO Status of Forces Agreement (SOFA), BGBl. 1961 II 1190; SOFA Zusatzvereinbarung, BGBl. 1961 II 1218; Revised SOFA Supplemental Agreement, BGBl. 1994 II 2594, 2598; see further the trooop statute “Partnership for Peace” of NATO of 19 June 1995 (BGBl. 1998 II p. 1340); see also Art. 8 Para. 1 of the EU troop statute of November 4, 2003 (13028/03, JUR 375, PESC 548).Google Scholar

78 ICTY, Furundzija, I.L.M. 38, 349, para 155 (1999).Google Scholar

79 BGBl.1985 II, 926; 1155 UNTS 331.Google Scholar

80 Details in Rainer Birke, Strafverfolgung Nach Dem Nato-Truppenstatut: Grundlagen Und Praxis Eines “International-Arbeitsteiligen“ Sreafverfahrens 77 (2004); see also Dieter Fleck, Are Foreign Military Personnel Exempt from International Criminal Jurisdiction under Status of Forces Agreements?, 1 J. of Int'l Criminal Justice 651 (2003).Google Scholar

81 Federal Prosecutor, decision of 10 February 2005, file-no 3 ARB 207/04-2, on file with the author; the decision is partly documented at http://www.generalbundesanwalt.de/news/index.php?Artikel=163&Thema=6&Start=0 Google Scholar

82 Kafka, Franz, Vor dem Gesetz, in Der Prozess (1915).Google Scholar

83 Section 160 (Investigation Proceedings) of the Criminal Procedure Code reads:Google Scholar

(1) As soon as the public prosecution office obtains knowledge of a suspected criminal offense either through a criminal information or by other means it shall investigate the facts to decide whether public charges are to be preferred.Google Scholar

(2) The public prosecution office shall ascertain not only incriminating but also exonerating circumstances, and shall ensure that such evidence is taken the loss of which is to be feared.Google Scholar

(3) The investigations of the public prosecution office should extend also to the circumstances which are important for the determination of the legal consequences. For this purpose it may avail itself of the service of the court assistance agency.Google Scholar

84 See e.g. Ursula Knapp, In erster Linie sind Heimatstaaten zuständig, Frankfurter Rundschau, 11 February 2005.Google Scholar

85 On this principle see section 153f Criminal Procedure Code. On ground of this subsidiarity principle also the Spanish Tribunal Supremo recently rejected a case against former Peruvian President Alberto Fujimori, See STS, 20 May 2003 (Sentencia No. 712/2003), available at <http://www.derechos.org/nizkor/peru/doc/tsperu.html>..>Google Scholar

86 Section 172 (Proceeding to Compel Public Charges) of the Criminal Procedure Code reads:Google Scholar

(1) If the applicant is at the same time the aggrieved party, he shall be entitled to lodge a complaint against the notification made pursuant to Section 171 to the official superior of the public prosecution office within two weeks after receipt of such notification. On the filing of the complaint with the public prosecution office the time limit shall be deemed to have been observed. The time limit shall not run if no information has been given pursuant to Section 171, second sentence.Google Scholar

(2) The applicant may, within one month of receipt of notification, apply for a court decision in respect of the dismissal of the complaint by the superior official of the public prosecution office. He shall be informed of this right and of the form provided for such application; the time limit shall not run if no information has been given. The application shall not be admissible when the subject of the proceedings is solely a criminal offense which may be prosecuted by the aggrieved party by way of a private prosecution, or if the public prosecution office dispensed with preferring public charges in accordance with Section 153 subsection (1), Section 153a subsection (1), first and sixth sentences, or Section 153b subsection (1); the same shall apply in cases under Sections 153 c to 154 subsection (1), as well as under Sections 154b and 154c.Google Scholar

(3) The application for a court decision shall indicate the facts which are intended to substantiate preferment of public charges as well as the evidence. The application must be signed by an attorney-at-law; legal aid shall be governed by the same provisions as in civil litigation. The application shall be submitted to the court competent for the decision.Google Scholar

(4) The Higher Regional Court shall be competent to decide on the application. Section 120 of the Courts Constitution Act shall apply mutatis mutandis.Google Scholar

87 § 153f Criminal Procedure Code reads:Google Scholar

(1) In the cases referred to under Section 153c subsection (1), numbers 1 and 2, the public prosecution office may dispense with prosecuting an offence punishable pursuant to sections 6 to 14 of the Code of Crimes against International Law, if the accused is not present in Germany and such presence is not to be anticipated. If in the cases referred to under Section 153c subsection (1), number 1, the accused is a German, this shall however apply only where the offence is being prosecuted before an international court or by a state on whose territory the offence was committed or whose national was harmed by the offence.Google Scholar

(2) In the cases referred to under Section 153c subsection (1), numbers 1 and 2, the public prosecution office can, in particular, dispense with prosecuting an offence punishable pursuant to sections 6 to 14 of the Code of Crimes against International Law, ifGoogle Scholar

1 there is no suspicion of a German having committed such offence,Google Scholar

2 such offence was not committed against a German,Google Scholar

3 no suspect in respect of such offence is present in Germany and such presence is not to be anticipated and 4. the offence is being prosecuted before an international court or by a state on whose territory the offence was committed, whose national is suspected of its commission or whose national was harmed by the offence.Google Scholar

The same shall apply if a foreigner accused of an offence committed abroad is residing in Germany but the requirements pursuant to the first sentence, numbers 2 and 4, have been fulfilled and transfer to an international court or extradition to the prosecuting state is permissible and is intended.Google Scholar

(3) If in the cases referred to under subsection (1) or (2) public charges have al-ready been preferred, the public prosecution office may withdraw the charges at any stage of the proceedings and terminate the proceedings.Google Scholar

88 Art. 129 Para. 2. Geneva Convention on the Treatment of Prisoners of War (see supra note 39); this Convention has been ratified by the Federal Republic and the U.S.Google Scholar

89 As, for example, in Jan Hessbruegge, An Attempt to Have Secretary Rumsfeld and Others Indicted for War Crimes under the German Völkerstrafgesetzbuch, ASIL Insight 12/2004, at www.asil.org/insights.htm (2004), who is piquantly described in ASIL's biographical note as an advisor to former Minister of Defense Rudolf Scharping.Google Scholar

90 Federal Prosecutor, supra note 81.Google Scholar

91 For the complementarity principle of the ICC, see Michael A. Newton, Comparative Complementarity: Domestic Jurisdiction Consistent with the Rome Statute of the International Criminal Court, 167 Military L. Rev. 20, 54 (2001): “The ICC prosecutor and court must make a subjective assessment whether the sovereign state is “genuinely unwilling” or “genuinely unable” to take action on the case. This new standard also allows the supranational institution to review, and potentially reverse, the disposition of the case following prior judicial or investigative action in the domestic system.”Google Scholar

92 See Scott Horton: “In addition to UCMJ, the other principal bodies of criminal law under which war crimes may be charged are the War Crimes Act of 1996, 18 U.S.C. sec. 2441, and the Anti-Torture Act of 1996, 18 U.S.C. sec. 2340. Enforcement of these acts is committed to the Department of Justice and particularly to the Attorney General and the various United States Attorneys. […] Accordingly, senior lawyers at DOJ, acting with the knowledge and support of the Attorney General, were complicit in the scheme to introduce torture and other abusive practices into authorized regimes of treatment for detainees in GWOT. It is therefore clear that DOJ will not act on its responsibility to initiate criminal investigations or undertake prosecutions of the conspirators and implementers of this scheme” (Scott Horton, Expert Report, 1/29/2005, para 25 and 28, available at http://www.ccrny.org/v2/legal/september_11th/docs/ScottHortonGermany013105.pdf and www.rav.de).Google Scholar

93 The “principle of legality” is laid down in § 152 para 2 Code of Criminal Procedure: “Except as otherwise provided by law, the public prosecution office shall be obliged to take action in the case of all criminal offenses which may be prosecuted, provided there are sufficient factual indications.” Whereas the principle of legality obliges to prosecute, the principle of “opportunity” gives discretion to the Prosecutor's office, see Theodor Kleinknecht & Lutz Meyer-goßner, Strafprozessrdnung § 152 para 2 (47th ed. 2004).Google Scholar

94 BT Drucks. 14/8524, p. 38Google Scholar

95 On the techniques of influencing the results of these official reports, see Scott Horton: “In May 2004, I had occasion to interview several soldiers stationed at various locations in the German Länder of Hessen and Baden-Württemberg, who were attached to military intelligence units under the U.S. Army's V Corps, and who were previously stationed at, or who visited, Abu Ghraib. I conducted my interview for purposes of understanding how MG Fay was proceeding with his investigation. The accounts I received were all consistent and were highly revealing of MG Fay's intent. MG Fay held group meetings with soldiers in the presence of their group commanding officers. At these meetings, he reminded them that any soldier who had observed the abuse of detainees at Abu Ghraib and other sites and who had failed to report it contemporaneously was guilty of an infraction and could be brought up on charges. He stated that any non-commissioned officer who observed the abuse of detainees at Abu Ghraib and other sites and who failed to intervene or stop it was guilty of an infraction and could be brought up on charges. He then asked if anyone had observed any incidents they wished to discuss with him. The result of such a process is entirely predictable. MG Fay worked hard to limit the number of accounts of abuse in order to sustain a preconceived theory that the abuse at Abu Ghraib was the result of a handful of “rotten apples” rather than systematic instructions rendered through the chain of command. The soldiers with whom I spoke all felt that anyone providing evidence of abuse would be the target of certain retaliation in the form of (i) criminal charges; (ii) hazing and harassment or (iii) potential exposure and “friendly fire” death on the field of battle in Iraq. One specifically inquired about the possibility of securing political asylum in Germany, and I arranged for this soldier to obtain U.S. and German legal counsel on that issue. Soldiers who raised issues about detainee abuse in Iraq were subject to ridicule and threat; one notorious case involved a soldier who, after registering a report of severe abuse, was ordered to be found “mentally deranged,” was strapped to a gurney and was flown out of Iraq Through interviews I conducted of military personnel who interacted with MG Fay, I was also able to document and establish cases of abuse and mistreatment which were duly reported to MG Fay and which he failed to note or take account of in any way in the report he ultimately issued. I passed some of this information to staff members of the Armed Forces Committee of the United States Senate for use when MG Fay appeared to testify before the Committee” (Horton, supra note 92, para 12 et seq.).Google Scholar

96 See also Schoreit, in Karlsruher Kommentar Zur Strafprozessordnung 921 (5th ed., Gerd Pfeiffer ed., 2003): “Also in cases to which § 153f para. 2 would be applicable, there can be grounds for complaints, not excluding domestic prosecution (see BR-Drucks. 29/02 pp. 87, 88), e.g., if there is concern that a prosecution in the state of the act's occurrence will be hampered and when important witnesses are present in Germany; a mock trial occurring elsewhere does not suffice. Even in cases that exhibit no tie to Germany, in which however no prior jurisdiction has begun investigations, the German authorities should, following the principle of universal jurisdiction, undertake investigations in preparation for subsequent criminal prosecution. If a connection to Germany regarding act, suspect or victim is present, and another jurisdiction is investigating the matter, the German authorities should, without seeking further legal assistance, support foreign proceedings to the best of their ability and be prepared for a possible later taking over of the proceedings.”Google Scholar

97 On this obligation see Christian Tomuschat, The duty to prosecute international crimes committed by individuals, in Festschrift Helmut Steinberger: Tradition Und Weltoffenheit Des Rechts 315 (Hans-Joachim Cremer et al. eds., 2002).Google Scholar

98 See e.g., the news report in: Die Welt, 11 Februry 2005.Google Scholar

99 I.e. functional equivalent, in public sector, of labor law in private sector.Google Scholar

100 See also the criticism in Anne van Aaken, Eli Salzberger & Stefan Voigt, The Prosecution of Public Figures and the Separation of Powers: Confusion within the Executive Branch, 15 Const. Pol. Econ. 261 (2004), at www.bepress.com/gwp/default/vol2003/iss1/art11.Google Scholar

101 The position of political official follows from § 36 para. 1 no. 5 Bundesbeamtengesetz in conjunction with § 31 Beamtenrechtsrahmengesetz. The supervision provision for the Chief Prosecutors Office is in § 147 no. 1 Gerichtsverfassungsgesetz.Google Scholar

102 Despite its organizational integration in the judiciary, the Constitutional Court has consistently assigned the Prosecutor's Office to the executive (see BVerfG, Neue Juristische Wochenschrift 815 (2002)).Google Scholar

103 On this case see Martine Silber, L'ex-tortionnaire argentin Scilingo devant la justice espagnole, Le Monde 14/1/2005 and Richard J. Wilson, Argentine Military Officers Face Trial in Spanish Courts, ASIL Insight 12/2003, at: www.asil.org/insights.htm.Google Scholar

104 References in Andreas Fischer-Lescano, GlobalVerfassung: Die Geltungsbegrundung Der Menschenrechte (2005).Google Scholar

105 §§ 153 to 154c German Code of Criminal Procedure.Google Scholar

106 See OLG Hamm, Monatsschrift für Deutsches Recht 460 (1993).Google Scholar

107 On basic rights of the victims that could be violated in case of a negative decision in the indictment enforcement procedure, see Bundesverfassungsgericht, BVerfG, 2 BvR 2104/01, decision of March 28, 2002, at http://www.bverfg.de/. Such a violation could lead to a constitutional compliant at the Federal Constitutional Court.Google Scholar

108 Art. 100 II German Basic Law.Google Scholar

109 According to information from the Press Office of the Chief Prosecutor (13 December 2004) the Chief Prosecutor has “looked at the circumstances of the charged acts in the framework of review procedures. For various criminal-procedural reasons […] there was in no case occasion for the introduction of a formal investigative procedure.”Google Scholar

110 Generally on universal jurisdiction see the contributions of Luc Reydams, Universal Jurisdiction: International and Mumicipal Legal Perspectives (2003); Anthony Sammons The ‘Under-Theorization’ of Universal Jurisdiction: Implications for Legitimacy on Trials of War Criminals by National Courts, 21 Berkeley J. of Int'l L. 111 (2003); Steven R. Ratner & Jason S. Abrams, Accountability For Human Rignts Atrocities In International Law: Beyond the Nuremberg Legacy 151 (2nd ed., 2001); Bruce Broomhall, International Justice and the International Criminal Court: Between Sovereignty and the Rule of Law 105 (2003); Christian Maierhöfer, Weltrechtsprinzip und Immunität: das Völkerstra-frecht vor den Haager Richtern, 30 Europaische Grundrechte-Zeitschrift 545 (2003).Google Scholar

111 See the discussion supra lit. F.Google Scholar

112 Which initiated the procedure at the I.C.J. mentioned in notes 31 and 62Google Scholar

113 See e.g, the statement of Donald Rumsfeld: “Finally, I discussed the U.S. concern about the lawsuit that's recently been filed in a Belgian court against General Tom Franks and against Colonel Brian McCoy alleging that they were responsible for war crimes in Iraq, as well as suits that have been filed here in Belgium against former President Bush – George Herbert Walker Bush as opposed to George W. Bush – General Norman Schwarzkopf, Vice President Cheney and Secretary Powell. The suits are absurd. Indeed, I would submit that there is no general in history who has gone to greater lengths than General Franks and his superb team to avoid civilian casualties. I am told that the suit against General Franks was effectively invited by a Belgian law that claims to gives Belgian courts powers to try the citizens of any nation for war crimes. The United States rejects the presumed authority of Belgian courts to try General Franks, Colonel McCoy, Vice President Cheney, Secretary Powell and General Schwarzkopf, as well as former President Bush. I will leave it to the lawyers to debate the legalities. I am not a lawyer. But the point is this. By passing this law, Belgium has turned its legal system into a platform for divisive, politicized lawsuits against her NATO Allies. Now, it's obviously not for outsiders, non-Belgians, to tell the Belgian government what laws it should pass. And what it should not pass. With respect to Belgium's sovereignty, we respect it. Even though Belgium appears not to respect the sovereignty of other countries. But Belgium needs to realize that there are consequences to its actions. This law calls into serious question whether NATO can continue to hold meetings in Belgium and whether senior U.S. officials, military and civilian, will be able to continue to visit international organizations in Belgium. I would submit that that could be the case for other NATO Allies, as well. If the civilian and military leaders of member states can not come to Belgium without fear of harassment by Belgian courts entertaining spurious charges by politicized prosecutors, then it calls into question Belgium's attitude about its responsibilities as a host nation for NATO and Allied forces.” (News Transcript: Secretary of Defense Rumsfeld at NATO Headquarters, DEFENSELINK (June 12, 2003), available at http://www.defenselink.mil/transcripts/2003/tr20030612-secdef0271.html)Google Scholar

114 See Loi relative aux violations graves du droit humanitaire, 5 August 2003, M.B., Aug. 7, 2003; available at http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Transnational_criminal_justice/Inter-national_Criminal_Court/Documents/ConsultICC(2003)11F.pdf; on this Luc Reydams, Belgium Reneges on Universality: The 5 August 2003 Act on Grave Breaches of International Humanitarian Law, 1 J. of Int'l Crim. JUST. 679 (2003).Google Scholar

115 See the summary in Steven Ratner, Belgium's War Crimes Statute: A Postmortem, 97 Am. J. of Int'l L. 888 (2003); cf. also Michael Kirby, Universal Jurisdiction and Judicial Reluctance: A New Forteen Points, in Universal Jurisdiction: Natonal Courts and the Prosecution of Serious Crimes Under International Law 240 (Stephen Macedo ed., 2004).Google Scholar

116 The Princeton Principles on Universal Jurisdiction – Joint Declaration of the Princeton University's Program in Law and Public Affairs, Woodrow Wilson School of Public and International Affairs et al. on Universal Jurisdiction, available at http://www.law.uc.edu/morgan/newsdir/univjuris.html; see further: Human Rights Watch – Documentation of text on transitional justice: http://www.hrw.org/doc/?t=justice; Amnesty International – Memorandum “Universal Jurisdiction – the duty of states to enact and enforce legislation” (AI Index 53/002/2001), at http://web.amnesty.org/pages/uj-memorandum-eng;Google Scholar

117 ANDREAS FISCHER-LESCANO, GLOBALVERFASSUNG. DIE GELTUNGSBEGRÜNDUNG DER MENSCHENRECHTE (2005).Google Scholar

118 See e.g., Jonathan Powers: “After Pinochet and Milosevic does Kissinger see the writing on the wall for himself? Could some lone magistrate somewhere – another Baltasar Garzon – set the ball rolling towards him? Could he be picked up while attending some academic conference in France, or giving political advice on behalf of Kissinger Associates to the government of Taiwan or to multinational companies in Malaysia or taking a holiday in India?” (Jonathan Powers, Henry Kissinger Has Become a Very Nervous Person, at www.globalpolicy.org).Google Scholar

119 Kissinger, Henry, The Pitfalls of Universal Jurisdiction, 80 Foreign Affairs 86 (4/2001); for an opposing view see e.g. the reply to Kissinger by the Chair of Human Rights Watch, Kenneth Roth, The Case for Universal Jurisdiction, 80 Forreign Affairs 150 (5/2001) and Amnesty International – Memorandum “Universal Jurisdiction – the duty of states to enact and enforce legislation” (AI Index 53/002/2001), at http://web.amnesty.org/pages/uj-memorandum-eng.Google Scholar

120 On this see Andreas Fischer-Lescano & Gunther Teubner, Regime-Collisions: The Vain Search for Legal Unity in the Fragmentation of Global Law, 25 Mich. J. of Int'l L. 999 (2004).Google Scholar

121 On this necessity see, Jacques Derrida, Force of Law. The “Mystical Foundation of Authority”, in Deconstruction and the Possibility of Justice 3, 28 (Drucilla Cornell, Michel Rosenfeld & David Carlson, eds., 1992; on Derrida's legal philosophy see the German Law Journal's special issue “A Dedication to Jacques Derrida” at 6:1 German L. J. 1-199 (2005).Google Scholar

122 A summary of these processes should start with Filártiga v. Peña-Irala, 630 F.2d 876 (2nd Cir. 1980); see the inventory in Beth Stephens, Translating Filártiga: a comparative and international law analysis of domestic remedies for international human rights violations, 27 Yale J. of Int'l L. 1 (2002); Markus Rau, Das Ende der Weltrechtspflege? Zur Abschaffung des belgischen Gesetzes über die universelle Verfolgung völkerrecht-licher Verbrechen, 16 Humanitares Volkerrecht Informationsschriften, 212 (2003); concerning the legal actions arising from forced-labor cases, the establishment of the Foundation for Memory, Responsibility and the Future and the German-U.S. governmental agreement, see Andreas Fischer-Lescano, Bericht über die völkerrechtliche Praxis der Bundesrepublik Deutschland in den Jahren 2000 bis 2002, 64 Heidelberg J. Of Int'l L. 195, 210 (2004); Libby Adler & Peer Zumbansen, The Forgetfulness of Nobless: A Critique of the German Foundation Law Compensating Slave and Forced Laborers of the Third Reich, in Zwangsarbrit im Dritten Reich: Erinnerung und Verantwortung 333 (Peer Zumbansen ed., 2002); on the discussion on restitution in Germany see Ulrich Adamheit, Jetzt Wird die Deutsche Wirtschaft von Ihrer Geschichte Eingeholt: Die Diskussion um die Entschadigung Ehmaliger Zwangsarbeiter am Enfe des 20. Jarhunderts 72 and 213 (2004).Google Scholar

123 On global constitutionalism see Jurgen Habermas, Hat die Konstitutionalisierung des Völkerrechts noch eine Chance?, in Ibidem, der Gespaltene Westen: Kleinere Politische Schriften X 113 (2004); Jochen Abr. Frowein, Konstitutionalisierung des Völkerrechts, 39 Berichte der Deutschen Gesellschaftfur Volkerrecht 427 (2000); Fischer-Lescano, Redefining Sovereignty via International Constitutional Moments?, in Redefining Sovereignty: The Use of Force after the End of the Cold War. New Options, Lawful and Legitimate? (Michael Bothe, Mary Ellen O'Connell & Natalino Ronzitti eds., (2005), forthcoming, available as ConWEB Paper 1/2005 at http://www.qub.ac.uk/schools/SchoolofPoliticsInternationalStudies/FileStore/ConWEBFiles/Filetoupload,13000,en.pdf; see also Lothar Brock, Frieden durch Recht. Zur Verteidigung einer Idee gegen ‘die harten Tatsachen’ der internationalen Politik, 3 HSFK-Standpunkte 1 (2004), at www.hsfk.de.Google Scholar

124 See the instructive analysis by Axel Halfmeier, Menschenrechte und Internationales Privatrecht im Kontext der Globalisierung, 68 Rabels Zeitschrift fur Auslandisches und IinternationalesPrivatrecht 653 (2004); Burkhard Heß, Kriegsentschädigung aus kollisionsrechtlicher Sicht, 40 Berichte der Deutschen Gesellschaft fur Volkerrecht 107 (2003); on what is possible in terms of international law, see the socalled van Boven Report (1993) and the Revised Set of Basic Principles and Guidelines on the Right to Reparation for Victims of Gross Violations of Human Rights and Humanitarian Law, U.N. Doc. E/CN.4/Sub.2/1996/17.Google Scholar

125 Even if there are good reasons for this position, see KLAUS LÜDERSSEN, ABSCHAFFEN DES STRAFENS? 2 (1995).Google Scholar

126 See e.g., the decision of the Chief Prosecutor of 21 March 2003, which ended the proceedings regarding the complaints in respect to the Iraq War, i.e. the accusation (due to rights granted to use German air space and the German AWACS deployments in Turkey) of a war of aggression punishable according to § 80 Criminal Code: Generalbundesanwalt [Chief Federal Prosecutor], Kein Anfangsverdacht wegen Vorbereitung eines Angriffskrieges (§ 80 StGB) [No Initial Suspicion of Preparation of a War of Aggression (§ 80 Criminal Code), available at: http://www.unikassel.de/fb10/frieden/regionen/Irak/klagen.html; on this Klaus Kress, The German Chief Federal Prosecutor's decision not to investigate the alleged crime of preparing aggression against Iraq, 1 J. of Int'l Criminal Justice 245 (2004).Google Scholar

127 Regarding the decentralized processes of precedent establishment in the realm of civil law, Axel Halfmeier correctly states: “The future of judicial decisions in private law under conditions of globalization does not lie in a centralized system of world courts but in a decentralized patchwork of decisions of national civil courts on transnational issues. Out of these decentralized decisions a transnational civil law regarding human-rights violations is currently developing” (Axel Halfmeier, Menschenrechte und Internationales Privatrecht im Kontext der Globalisierung, 68 Rabels Zeitschrift fur Auslandisches und IinternationalesPrivatrecht 653, 685 (2004)).Google Scholar

128 See the stocktaking of Peer Zumbansen, Globalization and the Law: Deciphering the Message of Transnational Human Rights Litigation, 5 German L.J. 1499 (2004).Google Scholar

129 Kelsen, Hans, Wer soll der Hüter der Verfassung sein? (1931), in Die Wiener Rechtstheoretische Schule: Ausgewahlte Schriften von Hans Kelsem, Adolf Julius Merkl und Alfred Verdross 1873, 1883 (Hans Klecatsky et al. eds., 1968).Google Scholar

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131 1 Cranch 137 (1803).Google Scholar

132 Minister of Justice Zypries – Symposium: Strafverfolgung von Völkerrechtsverbrechen [Criminal Prosecution of Human-Rights Crimes], 27 June 2003, at http://www.bmj.bund.de/enid/fa.html.Google Scholar