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'In Search of a Criminal: Donald Rumsfeld's Name Tops the List of Accused of War Crimes.
By Alexia Garamfalvi
Legal Times

No one thinks that Donald Rumsfeld will end his days in a German prison. Or that there is any real chance he will have to face trial in Germany over allegations that he authorized policies leading to the torture of prisoners at U.S. detention facilities in Iraq and Guantánamo Bay, Cuba.
But that doesn't mean that a complaint filed in Germany last month won't have some ripple effects. The complaint asks a federal prosecutor there to begin an investigation, and ultimately a criminal prosecution, of the former secretary of defense and other U.S. officials for their roles in the abuses.
"Rumsfeld is no longer untouchable," says Wolfgang Kaleck, the German lawyer who filed the complaint along with the New York-based Center for Constitutional Rights and the International Federation for Human Rights. "He is now deeply connected with claims of abuses and torture. We have taken the first step to begin the legal discussion on his accountability."
The complaint against Rumsfeld, Attorney General Alberto Gonzales, former CIA director George Tenet, and other senior civilian and military officials, was filed in mid-November on behalf of 11 Iraqis who had been detained at Abu Ghraib prison and Mohammed al-Qahtani, a Saudi detained at Guantánamo. It alleges that the defendants ordered, aided, and abetted war crimes and failed to prevent the commission of war crimes by their subordinates. In international law, war crimes are defined as grave breaches of the Geneva Conventions, including torture and inhuman treatment.
Rumsfeld has said the abuse that occurred at Abu Ghraib was the work of a few low-level soldiers and the prisoners affected were mostly not the subject of interrogations, but just "common criminals" who were also detained. "It's pretty clear that on the midnight shift, for a period of some weeks, there were people there who were behaving in a way that was fundamentally inconsistent with the president's instructions to treat people humanely [and] my instructions that they were to treat people humanely," Rumsfeld said in a Dec. 15 television interview.
But the plaintiffs claim that the torture that occurred at detention centers in Iraq and Guantánamo were not isolated incidents or the product of a few soldiers gone bad, but rather was widespread and systemic, having been ordered from the top levels of the military and the Defense Department. "The interrogational torture applied by the United States was not an accident, not a mistake, not a secret action," the complaint states. (Pentagon and Department of Justice spokesmen declined to comment for this article.)
Stymied in their call for high-level accountability in the United States, the groups thought their best shot was to bring a case in a country, like Germany, that has a strong universal-jurisdiction law, says Michael Ratner, the CCR's president.
The CCR has been involved in much of the litigation challenging the Bush administration's post-Sept. 11 policies on the treatment of detainees in the context of the war on terror, including the landmark case Rasul v. Bush, which challenged the indefinite detention of foreign nationals at Guantánamo.
German law recognizes the principle of universal jurisdiction, whereby some crimes, such as torture, war crimes, genocide, and crimes against humanity, are considered so heinous they can be prosecuted anywhere, regardless of where they took place or the residence or nationality of the victims or perpetrators.
But legal experts predict that the Bush administration is sure to vigorously oppose the case and that Germany will be reluctant to take it. Under Germany's universal-jurisdiction statute, the prosecutor has the discretion to decline to take a case.
"It's quite risky for Germany to do this," says Eric Posner, an international law professor at the University of Chicago. "The danger of backlash is quite real. Congress, even a Democratic Congress, could very well retaliate if a serious prosecution went forward."
Moreover, the filing could also strengthen the position of those in the government who oppose the International Criminal Court, says Lee Feinstein, a senior fellow at the Council on Foreign Relations and a former Defense Department and State Department official during the Clinton administration.
But human rights lawyers contend that even if the case doesn't result in the prosecution of a specific defendant, it could reopen a debate in the United States about Rumsfeld's responsibility. They also say filing cases abroad under universal-jurisdiction laws may catalyze domestic efforts to open investigations and push for accountability.'

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http://www.law.com/jsp/dc/PubArticleDC.jsp?id=1166522799501