In November 2004, ECCHR General Secretary Wolfgang Kaleck filed a criminal complaint in Germany on behalf of four Iraqi survivors and the Center for Constitutional Rights based in New York. The complaint was directed against, among others, former Secretary of Defense Donald Rumsfeld, former CIA Director George Tenet and a number of high ranking military personnel in relation to breaches of the UN Convention against Torture and the German Code of Crimes against International Law.
The criminal complaints focused on the impunity of leading representatives of the government, the armed forces and the intelligence services. The complaints were based on the principle of universal jurisdiction which has been laid down in the German and French legal systems. Under this principle it is possible to pursue legal action in national courts in cases of so called “core crimes,” such as war crimes or crimes against humanity, even if the relevant criminal acts took place on foreign soil.
Since in the cases at hand no prosecutions were pursued in the home states of the perpetrators or the victims, nor by any international courts, it was possible to initiate investigations in Germany and France.
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 in connection with war crimes, torture and other criminal acts which took place in the military prisons of Guantánamo and Abu Ghraib. In all three cases, however, the court authorities in Karlsruhe and Paris, where the cases were filed, refused to initiate investigations and rejected appeals against these decisions.
The public was shocked when news broke of the torture and inhuman treatment in the US operated Iraqi prison, Abu Ghraib, and in the military base at Guantánamo Bay, Cuba. Despite the outrage surrounding these incidents, those responsible for overseeing these crimes have to this day 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 unprosecuted. This is despite the fact that these individuals directly or indirectly ordered and – in the case of top government lawyers – attempted to legitimize these crimes.