comment | posted November 2, 2006 (November 20, 2006 issue)
War Criminals, Beware
Jeremy Brecher & Brendan Smith
On November 14 a group of lawyers and other experts will come before the German federal prosecutor and ask him to open a criminal investigation targeting Donald Rumsfeld, Alberto Gonzales and other key Bush Administration figures for war crimes. The recent passage of the Military Commissions Act provides a central argument for the legal action, under the doctrine of universal jurisdiction: It demonstrates the intent of the Bush Administration to immunize itself legally from prosecution in the United States, even for the most serious crimes.
The Rumsfeld action was announced at a conference in New York City in late October titled "Is Universal Jurisdiction an Effective Tool?" The doctrine allows domestic courts to prosecute international crimes regardless of where the crime was committed, the nationality of the perpetrator or the nationality of the victim.
It is reserved for only the most heinous offenses: genocide, war crimes and crimes against humanity, including torture. A number of countries around the world have enacted universal jurisdiction statutes; even the United States allows it for certain terrorist offenses and torture.
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The case will draw on a powerful new argument. The Military Commissions Act of 2006, which the President promoted and recently signed into law, provides retroactive immunity for civilians who violated the War Crimes Act, including officials of the Bush Administration. Such
an attempt to provide immunity for their crimes, it will be argued, is in itself evidence of an effort to block prosecution of those crimes. Indeed, according to Scott Horton, chair of the International Law Committee of the New York City Bar Association, when Yugoslavia sought to immunize senior government officials, the United States declared the act itself to be evidence of such a conspiracy.
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Wolfgang Kaleck, a German human rights lawyer who is bringing the case in cooperation with CCR, FIDH and other groups, told the conference in New York that he is often asked,
Do you really expect Rumsfeld to be arrested for war crimes? His answer is that he doesn't expect it immediately. "But we make it possible that someday Rumsfeld will be arrested," he says. According to Kaleck, the German government regularly receives calls from potential high-level visitors asking, "Are there any complaints against me?"
much more at:
http://www.thenation.com/doc/20061120/brechersmith 
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