New Trouble Ahead?

While the German Chancellor is – contrary to earlier reports – apparently planning to visit the US President even before his second inauguration in January, a US human rights group, the New York-based Center for Constitutional Rights, is about to disturb the two governments’ reconciliation efforts.

According to a report by the German newspaper Frankfurter Rundschau (quoted by The Raw Story, Reuters), the American activists will file war crimes charges in Germany against senior U.S. administration officials – including Secretary of Defense Donald Rumsfeld, and former Central Intelligence Agency director George Tenet – for their alleged responsibility for crimes committed in the Abu Ghraib prison.

Despite claims by the group that “German law in this area is leading the world” – because it allows war criminals to be prosecuted in Germany regardless of where the crime was committed or the defendant’s nationality – whether the German Federal Prosecutor will actually investigate will depend upon the evidence provided. Their German lawyer, Wolfgang Kaleck, seems not overly confident in this respect, stating that he hopes that “the Federal Prosecutor?s Office takes [the] affair seriously.”

However, the case will certainly not be dismissed for political reasons – and thus the Chancellor may actually have to hold another embarrassing meeting with the American President in January. The media, however, is certain to take the issue seriously when details of the case will be presented at news conferences today.

Update:The AP reports that the complaint was indeed filed Tuesday morning. The German Federal Prosecutor’s spokesperson, Frauke Scheuten, said “[w]e have received it and are looking into it.” But she declined to comment about the likelhood of an official investigation. As I already alluded to above, the group’s German attorney doesn’t seem too hopeful and expecting it will take some time before a decision is made.

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About Tobias Schwarz

German, turned 30 a while ago, balding slowly, hopefully with grace. A carnival junkie, who, after studies in business and politics in Mannheim, Paris, and London, is currently living in his hometown of Mainz, Germany, again. Became New Labourite during a research job at the House of Commons, but difficult to place in German party-political terms. Liberal in the true sense of the term.

His political writing is mostly on A Fistful of Euros and on facebook these days. Occasional Twitter user and songwriter. His personal blog is almost a diary. Even more links at about.me.

9 thoughts on “New Trouble Ahead?

  1. Sounds like Belgium all over again, except that prosecutions can’t be brought directly by private parties. Is Germany a mandatory prosecution jurisdiction – i.e., does the Federal Prosecutor have a duty to prosecute if presented with enough evidence – or does he have discretion to decline?

  2. German criminal justice has two categories of crimes. Some must be prosecuted as soon as the prosecutor knows about them. Others can be prosecuted only upon request of the victim.
    In no case does the prosecutor have discretion. He may rule that there’s obviously no evidence and close the case, but that is an ordinary decision to which the usual rules about appeals apply.

  3. A German court ruled itself incompetent in a case involving the NATO bombing of a bridge outside Kosovo in 1999, with some hilarious arguments (NATO press briefings prove there were no war crimes?…), so I don’t expect lawyers to show much courage in this affair.

    But it would be good if Schr?der could be kept from another self-demolition in a theatrical attempt at practicising what he believes to be ‘realpolitik’ (for other examples see his Putin connection, or the plutonium factory for China issue).

  4. It’s disturbing how much devaluation the term “war crimes” has experienced recently. Moral relativists are comparing Abu Ghraib to Auschwitz. Absolutely unbelievable.

  5. Oliver is correct, but his statement but must be understood with a bit of nuance.

    A few minor crimes are classified as Antragsdelikte, i.e., the prosecutor proceeeds only if the victim swears out a complaint. For other crimes, the prosecutor is bound by the ‘principle of legality’, i.e., it is obligated to commence an investigation of any punishable, prosecutable act brought to its attention. Formally speaking, then, the prosecutor’s office would be obligated to investigate charges of war crimes (which, as you might imagine, are taken rather seriously in modern Germany).

    However, the legality principle is not absolute. It is balanced by the ‘principle of opportunity’, which does in fact grant prosectors a measure of discretion (in some cases, a very wide discretion). This second principle permits the prosecutor to end (einstellen) the investigation more or less immediately. This probably happens most often in cases where the violation of law, even if proven, would in any event be de minimis. However, a quick glance at the code of criminal procedure (Strafprozessordnung) shows that there are least three escape hatches for the prosecutor in this case. First, a prosecutor may elect not to prosecute a crime committed outside German territory. Second, the office of the chief federal prosecutor may elect not to prosecute certain crimes (and those of which Rumsfeld et al. are likely to be accused could arguably fall among them) if prosecution would cause severe harm to the republic or would otherwise oppose an important public interest. Finally, the prosecutor may elect not to prosecute crimes under Germany’s international criminal code (V?lkerstrafgesetzbuch), which include genocide and war crimes, if the accused is not in Germany and it is not to be expected that he or she will come to reside in Germany. (The rules are stricter if the accused is a German. In that case the prosectuor may drop the case only if the accused is already before an international court or a court in the country where the act took place or whose citizens were the victims.)

    In short, while the prosecutor must open a file on these charges, it can almost certainly very quickly close that file and lay it, as German lawyers love to say, ad acta.

  6. It’s disturbing how much devaluation the term “war crimes” has experienced recently.

    Indeed. Warhawks now see anything short of Auschwitz as acceptable and normal conduct of war.

  7. Pavel: There is a high end and a low end to the spectrum, and the horrors of Auschwitz were clearly the former. But “war crime” is a surprisingly broad concept, even if the prosecutions that get seen (invariably) are the more horrific ones; I have a 1929(?) War Office law manual somewhere, which runs to several voluminous chapters on what constitutes a war crime – and that was before people contemplated the concept of death-camps, before it was possible to “devalue” it in context.

    Just because murder is a crime, to use an analogy, does not mean that “crime” is in some way lessened by the fact it also describes assault…

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