An Attempt to Have Secretary Rumsfeld and Others Indicted for War Crimes under the German Völkerstrafgesetzbuch
By Jan Arno Hessbruegge
It is well-established that atrocities, including acts of torture, were committed against Iraqi detainees by some members of the United States Armed Forces. On 30 November 2004, the Center for Constitutional Rights in New York and four Iraqi citizens, who were allegedly detained and severely mistreated by U.S. forces in Iraq, brought criminal charges in Germany against United States Secretary of Defense Donald Rumsfeld, his Deputy Secretary for Intelligence Stephen Cambone, the former CIA Director, George Tenet, the former Commander of the United States Forces in Iraq, Lieutenant General Ricardo Sanchez, and six other high-ranking officers who have served or are serving in Iraq.  According to the complainants, Lieutenant General Sanchez and three other officers are currently stationed at U.S. bases in Germany.
The complainants seek to have the ten U.S. officials indicted for war crimes under the German Völkerstrafgesetzbuch  (Code of Crimes Against International Law) and for acts of torture under domestic criminal legislation committed against the four Iraqi citizens and other detainees in Abu Ghraib and elsewhere. The complainants charge that each of the accused either ordered or otherwise induced the commission of war crimes or allowed them to happen even though he or she knew or could have known about them.
Having received considerable media attention in Germany and abroad, the case is the first practical test for the universal jurisdiction clause contained in the Völkerstrafgesetzbuch, a criminal statute enacted in June, 2002.  Germanx’s Chief Federal Prosecutor, who is dealing with the criminal complaint, has not yet decided whether to indict any of the ten accused.
This Insight does not reach any conclusions about the individual criminal responsibility of any of the ten accused. It merely identifies and briefly analyzes the legal norms determining whether international law permits an indictment of the accused in Germany and whether the accused are likely to be indicted under the Völkerstrafgesetzbuch.
1. Permissibility of an Indictment According to International Law
According to international law, an indictment would only be permissible if Germany had jurisdiction to prosecute the alleged crimes even though they were committed abroad by non-nationals against other non-nationals, and if the accused could not claim immunity from German jurisdiction.
A. Universal Jurisdiction over War Crimes
International law has long accepted that some crimes ? the historical precedent being piracy ? are so heinous that the perpetrator must be considered an enemy of all of mankind (hostis humanis generis). In these instances, any member of the community of states may try the perpetrator according to the principle of universal jurisdiction regardless of where, by whom and against whom the crime was committed. After World War II, Israeli courts were the first to explicitly rely upon the principle, when they convicted Adolf Eichmann for crimes against humanity. 
There is disagreement as to which crimes can be tried under universal jurisdiction.  Most international legal scholars and practitioners agree, however, that war crimes can be prosecuted and tried under universal jurisdiction. This follows from the four Geneva Conventions of 1949, to which virtually all states are members. They oblige states to search for anyone ? whether national or non-national ? responsible for war crimes as defined by the Geneva Conventions. A state must either prosecute an apprehended war criminal or, if it prefers, hand him over to another state that can and wants to prosecute.  These obligations logically imply that a State has universal jurisdiction to try anyone who has committed a war crime anywhere in the world.
B. War Crimes
It is conceivable that some or all of the accused are chargeable with war crimes. The Geneva Conventions of 1949 were applicable throughout the period of belligerent occupation during which the atrocities were committed. Iraqi detainees were either protected as combatants by Geneva Convention III (Relating to Prisoners of War) or as civilians by Geneva Convention IV (Relating to Civilians).  Therefore it was a war crime to treat these detainees inhumanely, to torture them or to cause them great suffering or serious physical injury.  Outrages upon personal dignity, in particular humiliating and degrading treatment, and sexual violence causing great suffering or serious injury also constitute war crimes according to the customary laws of international armed conflict. 
Not only persons ordering or committing atrocities in the course of armed conflict can be responsible for war crimes, but also those that have intentionally or negligently failed in their responsibility as military commanders or civilian superiors to prevent them. A military commander who knows or, owing to the circumstances of the time, should know that forces under his command commit war crimes can himself be responsible for a war crime. This is the case, if he fails to take all the necessary and reasonable measures to prevent or repress the crimes or to report them to the competent authorities.  The same principles would probably apply to a civilian who knows or consciously disregards information which clearly indicates that subordinates under his control are committing war crimes. This doctrine of superior responsibility has evolved under customary international criminal law to prevent impunity resulting from the daunting prosecutorial task of proving an uninterrupted chain of command from the top brass all the way to the ordinary soldier who executes the atrocity. On the strength of this doctrine, the Japanese General Yamashita, who had turned a blind eye when his troops murdered thousands of Filipino civilians, was sentenced to death by a U.S. military tribunal. 
C. Limits to Universal Jurisdiction
While universal jurisdiction principally extends to all war crimes, this does not mean that it can be exercised in all circumstances. As a general principle of international law, rights and powers must be exercised in good faith and not be abused. It has therefore been suggested that a state must have a legitimate interest in the exercise of universal jurisdiction, e.g. because the perpetrator or at least one of his victims is residing in that state at the time of indictment. The former would be the case with regard to the four officers stationed in Germany.
In addition, it can be argued that states contemplating the exercise of universal jurisdiction must first give the state where the crime was committed, and the state of which the alleged perpetrator is a national, the chance to investigate the charges and decide whether to prosecute. This limitation might also follow from the international legal principle of comity that requires one state’s organs of justice to be courteous to those of another country. The fact that even the International Criminal Court’s jurisdiction is only complementary and subsidiary to that of national courts lends further support to the idea that the authorities closer to the offence ? in this case the U.S. authorities ? should have primary jurisdiction.
D. Functional Immunity
Some of the accused might also be able to claim immunity from prosecution in Germany. Customary international law distinguishes between functional immunity and personal immunity.
A person enjoys functional immunity for all acts committed in his official capacity. It is now a well-established principle of international law, however, that functional immunity does not stand in the way of a prosecution for international crimes. There are different approaches to justify this principle. One can argue that a person cannot possibly be said to act in “an official capacity? when committing such heinous deeds. Alternatively, one may take the view that international human rights norms, which demand punishment for atrocities, take precedence over the customary norm of functional immunity. Some suggest that the denial of functional immunity is a justified counter-measure against the state’s breach of an obligation owed to all other states (a so-called obligation erga omnes), which occurs when one of its official commits an international crime. Finally, one can make a functional argument. The duty under the Geneva Conventions to prosecute even non-national war criminals would be almost meaningless if soldiers and their civilian military leaders could claim functional immunity for acts committed in the course of armed conflict. Therefore, under this argument, states would be considered to have tacitly waived the right to claim functional immunity for war criminals when they became states parties to the Geneva Conventions. Therefore, none of the ten accused would be protected from prosecution by the mere fact that he or she was acting in the course of official duty.
E. Personal Immunity
Personal immunity protects heads of state, heads of government and diplomats from foreign prosecution until they leave office. Historically, personal immunity flows from the principle of sovereign equality of states. Because one state cannot be the judge of another, no state may prosecute the key officials that represent another state without that state’s consent. Functionally, personal immunity ensures that these key officials can travel unhindered and inter-state relations can continue to function. For these reasons personal immunity still precludes prosecution even for international crimes,  although this view is increasingly being contested.
In 2002, the International Court of Justice held that a foreign minister enjoys personal immunity as well.  Although this view is supported by very little state practice,  there is much to be said for the argument that a state’s chief diplomat must enjoy the same privileges as his subordinates and must not be impaired from traveling abroad to fulfill the core function of his job. Expanding upon the second prong of the argument, one might therefore contend that the same must apply to a Secretary of Defense who has to meet colleagues abroad to maintain the international alliances needed to counter globalized threats. It could be argued, though, that this is a slippery slope. A globalization argument might nowadays be made for every cabinet member and many other state officials (e.g. the Chief of Intelligence). It could also be argued that cabinet members with national security functions are more likely to be the target of purely political indictments than others and must therefore enjoy special protection. On the other hand, their national security brief could make them targets of well-founded indictments, which could militate against granting them personal immunity.
F. NATO Status of Forces Agreement
Accused officers stationed in Germany might be able to claim immunity under the NATO Status of Forces Agreement (NATO SOFA) that delineates the relationship between the government of a NATO member state and foreign NATO troops stationed in that state. Article VII of the NATO SOFA provides that the “military authorities of the sending state shall have the primary right to exercise jurisdiction over a member of a force or of a civilian component in relation to offences arising out of any act or omission done in the performance of official duty.” 
This provision might preclude a prosecution of officers stationed in Germany. However, two arguments may be advanced against this view. Firstly, Article VII might be limited to crimes committed within Germany and might not embrace international crimes committed abroad. If Article VII prohibited the host state from prosecuting war crimes committed by soldiers of the sending state, this would force the host state to breach its obligations under the Geneva Conventions, whenever the duty to prosecute or extradite a war criminal is narrowed to a duty to prosecute because the sending state does not want to prosecute. It would be problematic to interpret a provision in the NATO SOFA to require a receiving state to breach the pre-existing Geneva Conventions, when the NATO SOFA does not show that the parties intended to apply it in that way. In addition, some consider the duty to prosecute or extradite war criminals to be a peremptory norm of international law that other treaties may not derogate from. If this is correct, any interpretation of Article VII would have to respect the receiving state’s obligation to prosecute every war criminal present on its territory if no other state wants to prosecute. This conclusion would follow from the principle, embodied in the Vienna Convention on the Law of Treaties, that a peremptory norm trumps any conflicting treaty provision. 
Secondly, and this is the weaker argument, Article VII of the NATO SOFA only gives the United States primary but not exclusive jurisdiction over acts committed in official duty. Arguably, Germany may exercise its secondary jurisdiction if the United States does not make use of its primary jurisdiction by not investigating the allegations.
2. The Unlikelihood of an Indictment under the Völkerstrafgesetzbuch
Under the German law of criminal procedure, prosecutors must launch a criminal investigation if concrete facts suggest that an offence has been committed. However, in cases involving universal jurisdiction the prosecution has a degree of discretion to drop cases without investigating them. This makes an indictment rather unlikely.
A. Universal Jurisdiction over the Alleged International Crimes
The Völkerstrafgesetzbuch, which was occasioned by Germanx’s ratification of the ICC Statute, seeks to diminish impunity for international crimes by embracing the principle of universal jurisdiction.  Germanx’s prosecutors and courts may exercise jurisdiction over genocide, war crimes, crimes against humanity and superior responsibility for any of the aforementioned crimes “even when the offence was committed abroad and bears no relation to Germany.” 
An exercise of universal jurisdiction is precluded by German law, though, if the accused can claim immunity under customary international law or an international treaty to which Germany is a party.  If any of the accused is protected by the principle of personal immunity or by Article VII of the NATO SOFA, German law prohibits indictment of the accused, and the Chief Federal Prosecutor must drop the case against the accused.
B. Opportunity Principle
Germanx’s Chief Federal Prosecutor will also drop the case if he comes to the conclusion that the allegations are unfounded. In that case, however, a victim of the offence can go to court and force an indictment, if the victim can show the allegations to be sufficiently well-founded. 
However, whenever an indictment of an accused would amount to an exercise of universal jurisdiction, Germanx’s Chief Federal Prosecutor has a degree of discretion not to investigate alleged offences against the Völkerstrafgesetzbuch in the first place (principle of opportunity).  The exercise of this prosecutorial discretion cannot not be challenged in court ? not even by the alleged victim. 
The Chief Federal Prosecutor only has to investigate and prosecute crimes that occurred abroad and involved a foreign accused and a foreign victim if two conditions coincide. Firstly, it is necessary that the accused is or will be present in Germany (principle of presence). Even an expected brief presence that leaves just enough time for an arrest is sufficient.  Secondly, neither an international court, the state of the crime, the state of the accused, nor the state of the alleged victim must be prosecuting the offence in question (principle of complementarity). The official explanations accompanying the Ministerial Draft justify this prosecutorial discretion clause with the need not to overburden German authorities with cases that bear no connection to Germany and that German authorities are unlikely to resolve. Furthermore, they consider that there is a hierarchy of jurisdiction, with universal jurisdiction being a subsidiary jurisdiction that should ultimately prevent impunity but should not interfere with ongoing investigations and proceedings in states that have a stronger link to the case.
Making use of the discretionary clause, the Chief Federal Prosecutor may therefore decide not to investigate the criminal complaint against the ten accused, if he concludes that U.S. authorities are investigating the allegations with sufficient vigor. His decision cannot even be challenged by the four Iraqi citizens that have co-filed the criminal complaint. The prospect of Secretary Rumsfeld being arrested at the annual Munich Conference on Security Policy and prosecuted for war crimes before the Bavarian Supreme Court is therefore unlikely to become reality.
The author is a Junior Lawyer at the Higher Court of Appeals in Berlin, Germany. He also works as an advisor to Member of Parliament Rudolf Scharping, Germanx’s Former Minister of Defence. The author would like to thank Ms. Angie Brice and Ms. Marti Flacks for their comments on a draft version.
 The original text of the criminal complaint and an English translation of its introductory paragraphs can be found at http://www.ccr-ny.org/v2/reports/report.asp”ObjID=TCRlT9TuSb&Content=471.
 For unofficial English translations of the Völkerstrafgesetzbuch and the official explanations accompanying the Ministerial Draft see http://www.iuscrim.mpg.de/forsch/online_pub.html.
 In none of the previous 26 criminal complaints alleging offences under the Völkerstrafgesetzbuch has a formal investigation been opened. See Rumsfeld angezeigt wegen Kriegsverbrechen, at www.rp‑online.de/public/article/nachrichten/politik/70597 (last visited 8 December, 2004).
 Attorney General of Israel v. Eichmann  36 ILR 18, 50 (1968) (District Court of Jerusalem); aff?d Attorney General v. Eichmann , 36 ILR 277, 282-83 (1968) (Supreme Court of Israel). Although this is sometimes contended, the Nuremberg and Tokyo Tribunals are not examples for the exercise of universal jurisdiction. The Allied states exercised de facto sovereign powers over the territories they occupied. Therefore they could rely on the territorial and the personality principle to establish jurisdiction over crimes committed in these territories or crimes committed by Germans or Japanese nationals elsewhere. See Madeline H. Morris, Universal Jurisdiction in a Divided World, 35 New Eng. L. Rev. 337, 342-3 (2001).
 In a 2002 case, the International Court of Justice side-stepped the issue. Yet, seven judges addressed the question in diverging separate opinions . Some feared that a broad ambit of application may cause judicial chaos. See Arrest Warrant of 11 April (Dem. Rep. Congo v. Belg.), 41 I.L.M. 536 (2002) (Feb.14, 2002) (separate opinion of President Guillaume), at 562. Cf. also id. (separate opinion of Judge Ranjeva), at 571, (separate opinion of Judge Rezek), at 593.) Others wanted to put an end to impunity for very serious crimes. See id. (dissenting opinion of Judge ad hoc Van Den Wyngaert), at 636-37. Cf. also id. (separate opinion of Jus Higgins, Kooijmanns and Buergenthal), at 583; (separate opinion of Judge Koroma), at 574-75.
 Geneva Convention I. for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 75 U.N.T.S. 31-83, art. 49; Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 75 U.N.T.S. 85-133, art. 50; Geneva Convention III Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135-285, art. 129; Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287-417, art. 146.
 For a discussion of the legal status of non-Iraqi detainees see Frederic L. Kirgis, Prisoner Transfers Out of Iraq, ASIL Insights, October 2004.
 Cf. Geneva Convention III, supra note vi, art. 130; Geneva Convention IV, supra note vi, art. 147.
 Cf. Rome Statute of the International Criminal Court, July 17, 1998, 2187 U.N.T.S. 90, art. 8 (2) (b) (xxi) & (xxii). It is likely that these provisions codify customary international law.
 Cf. id., art. 28 (also codifying customary international law).
 Trial of General Tomoyuki Yamashita (United States Military Commission, Manila, Oct. 8-Dec. 7, 1945) IV Law Rep. Trials War Crim. 1 (UN War Crimes Comm’n, 1948); aff?d In re Yamashita 327 US 1 (1946).
 Arrest Warrant of 11 April (Dem. Rep. Congo v. Belg.), 41 I.L.M. 536, para. 70 (Feb.14, 2002).
This view is not at odds with the fact that personal immunity cannot be claimed in proceedings before the International Criminal Court (see Article 27 (2) ICC Statute). Firstly, it can be argued that states parties to the Court’s Statute give a permanent waiver of personal immunity for proceedings before the International Criminal Court by ratifying its Statute. Secondly, sovereign equality remains unharmed by a prosecution before an international court. Thirdly, it is arguably more likely that national courts would prosecute another countrx’s key politicians out of ulterior motives than that an independent and supranational court would do so.
 Cf. Nikolaus Schultz, Has Lotus Wilted? A Note on the Decision of the ICJ of 14th February 2002 in the Case Concerning the Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium), 62 Heidelberg J. Int?l L. 703 (2002).
 Agreement Between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, Jun 19, 1951, 199 U.N.T.S. 67, art. VII (3) (a) (ii).
 Cf. Vienna Convention on the Law of Treaties, May 23, 1969, 1155 U.N.T.S. 331, art. 53.
 The German Constitution sets out a strict standard of nullum crimen sine lege: According to article 103 (3) of the Constitution only crimes that were codified in German law prior to the offence may be prosecuted in Germany. Therefore, Germany could not have prosecuted all international crimes covered by the Statute of the International Criminal Court. A situation could have arisen where the International Criminal Court would have assumed its complementary responsibility and prosecute an international crime linked to Germany because Germany proved constitutionally incapable to do so. The Völkerstrafgesetzbuch primary purpose is to remedy this problem by transforming the ICC Statute’s material provisions into offences under domestic law and thus enabling the German organs of justice to prosecute all crimes covered by the ICC Statute.
 Völkerstrafgesetzbuch [Code of Crimes Against International Law], art. 1.
 Gerichtsverfassungsgesetz [Act Constituting the Court System],