The following report details criminal complaints filed against those responsible for the US-torture program.

Between 2004 and 2007 three complaints were filed in Germany and in France against members of the US-Government, including former Secretary of Defense Donald Rumsfeld and members of the military forces, for war crimes, torture and other criminal acts, which took place in the military prisons of Guantanamo and Abu Ghraib. In all three cases, however, the court authority in Karlsruhe and Paris, where the cases were filed, refused to initiate investigations. 

The public was shocked when news broke of the torture and inhuman treatment in the American operated Iraqi prison, Abu Ghraib, and in the military base at Guantanamo Bay, Cuba. Despite the outrage surrounding these incidents, to this day, those responsible for overseeing these crimes have not been held accountable. While some lower ranking military personnel have been convicted in military courts for torture committed at Abu Ghraib, their senior officers, the military and political leadership, remain at large and unprosecuted. Moreover, high-ranking jurists have sought to legitimatize the government's actions by refusing to pursue legal recourse.

In all three cases, legal impunity, on the part of leading representatives of the Government, the Armed Forces and the Intelligence Service was cited. The complaints are based on the principle of universal jurisdiction, which was introduced into by the German and French legal systems. According to the principle, German and French national authorities are entitled to pursue legal action against offenders who committed so called "core crimes," such as war crimes or crimes against humanity, even if the relevant criminal acts took place on foreign soil.


Criminal Complaint in Germany, 2004

On November 29, 2004, the General Secretary of the ECCHR, Wolfgang Kaleck filed a criminal complaint, in Germany, on behalf of the American Center for Constitutional Rights, as well as on behalf of four victims of the Iraqi war. The complaint cites violations of the UN-Convention Against Torture, and of the German Code of Crimes Against International Law, and was directed against the former Secretary of Defense Donald Rumsfeld, former CIA Director George Tenet, as well as high ranking military personnel. The complaint referred to mistreatment of detainees in US-run prisons in Guantanamo Bay, Cuba and in Abu Ghraib, Iraq.

The basis of the complaint is the failure of American authorities to investigate and the imminent impunity arising therefrom. According to international conventions, and the principles of international law, third parties, not directly connected to the aforementioned criminal acts, can initiate investigations into egregious abuses such as war crimes, crimes against humanity, torture and enforced disappearances. The complaint against Donald Rumsfeld and other high-ranking military personnel will help to enforce equality before the law and to prevent the further impunity for gross crimes, as well as to uphold existing international conventions.

On February 10, 2005, the responsible German authority, the General Attorney, decided against initiating an investigation into abuses. The decision was based on the notion that investigations in Germany are only permitted if the competent state, either the state where the criminal acts took place, the home state of the victim or of the perpetrator's home state, is unwilling or unable to investigate itself.

On behalf of the victims, a number of human rights and civil society organizations, Wolfgang Kaleck lodged an appeal against the decision, which was rejected by the Appeal Court in Stuttgart on September 13, 2005.

 
Criminal Complaint in Germany, 2006

On November 14, 2006, an expanded complaint was filed. Based on new evidence, the claim was directed against Rumsfeld, Tenet as well as other high-ranking government officials, including the government lawyers Gonzales, Haynes, Addington, Yoo and Bybee and other members of the US Armed Forces. In particular, the complaint cited the fact that until November 2006, no investigations have been conducted in either the USA or in Iraq. This last complaint was supported by a number of lawyers' associations, human rights and civil society organizations, as well as by distinguished scholars through expert opinions.

Once again, the German General Attorney rejected the request to initiate investigations. This time, the Attorney justified its decision by arguing that the suspects did not reside, or expect to do so, on German soil; thus adding an additional barrier to the initiation of legal procedures against the U.S.

The appeal, filed by Wolfgang Kaleck, requested the initiation of a legal inquiry, due to the fact that investigations can take place even in absentia of the accused. Under this argument, the findings of the inquiry could be eventually taken into account in future procedures in other states. On April 21, 2009 the Appeal Court Stuttgart dismissed the appeal as inadmissible.


Criminal Complaint 2007 in France

On October 25, 2007 a French lawyer filed in France a criminal complaint against Donald Rumsfeld, while he was staying in France on private visit, on behalf of four human rights organizations: the FIDH, LDH, CCR, and the ECCHR. Object of the complaint was, once again, the torture and inhumane treatment in the US military prisons of Guantanamo Bay and Abu Ghraib, and specifically the illegal interrogation techniques applied and approved in memo, personally signed by Donald Rumsfeld.

The French authorities, nevertheless, did not take action, but on February 27, 2008, they rejected the final request to arrest Rumsfeld and to initiate an inquiry based on the aforementioned abuses. They referred to Rumsfeld's immunity as former Minister of Defense, defying the rules of present-day international law.

 
Procedures in other states

There are currently procedures pending in Spain against six government lawyers, including Addington, Bybee, Feith, Gonzales, Haynes and Yoo, due to the mistreatment of Spanish citizens at the Guantanamo Bay detention center. The decision, which would initiate an inquiry, lies in the hands of an investigation judge and of a first-instance-court. Criminal complaints have also been filed in Argentina (2005) and Sweden (2007). At the present time there is no progress in any of the cases.

 
Developments in the USA

Under the pressure of US civil rights organizations, a number of documents, which were previously classified, reveal the extent of detainee mistreatment in US-run military prisons.

This information has been detailed and is available to the public at http://www.aclu.org/accountability/released.html. A Senate Inquiry Committee has questioned government officials as to their participation in detainee mistreatment, and has published a detailed report available at  http://levin.senate.gov/newsroom/supporting/2008/Detainees.121108.pdf. After a prolonged investigation into the government's interrogation program, the Office of Professional Responsibility of the Ministry of Justice and of Detainee Mistreatment submitted a report to Eric Holder Jr., Minister of Justice. As a result, Minister Holder appointed a special investigator to inquire as to whether U.S. federal laws were violated with regard to the treatment of specific detainees in prisons outside American soil. The inquiry focuses on CIA agents and the interrogation techniques used in CIA-run prisons.

The decision would have had a bearing on all subsequent investigations, but the complaints in Germany, which referred to incidents of abuse in Guantanamo Bay and Abu Graib, were rejected and will not be examined further. Up to this point, there has been no inquiry into, let alone prosecution of, the practices of those responsible for the U.S. torture program.

 
Effect of the complaints

Criminal complaints in Europe had wide repercussions throughout American society. This legal pressure has allowed the Guantanamo and Abu Ghraib abuses to remain a part of the public debate. Those responsible have been repeatedly obliged to defend their involvement in torture programs to the public, though they have not been brought before a court of law.

U.S. officials must address and convincingly justify their decision, with regard to torture programs, not to initiate a legal investigation. The first steps have been taken by the international human rights community to inquire after these violations, but valuable time has elapsed and pertinent evidence can no longer be accessed.

An additional barrier to further pursuing criminal investigations is a complaint recently filed with the UN Special Rapporteur, on the Independence of Judges and Lawyers, which charges German General Attorney with exhibiting a lack of independence.

New York Times, 15.11.2006 - 12 Detainees Sue Rumsfeld in Germany, Citing Abuse

From Magna Carta to Abu Ghraib
German War Crimes Complaint Against Donald Rumsfeld, et al.
French War Crimes Complaint Against Donald Rumsfeld, et al.