The Magazine

Rumsfeld Accused

Anyone home at the State Department?

Dec 4, 2006, Vol. 12, No. 12 • By JEREMY RABKIN
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Germany then amended its own law to authorize its prosecutors to act against internationally recognized crimes, even when the crimes had no connection to Germans or to Germany. The idea was to fill gaps left by the Statute of the International Criminal Court, as, for example, in dealing with countries that had not subscribed to the ICC. Which countries might be in that category? The German Code of Crimes Against International Law was enacted in 2002--four years after the completion of the Rome Statute but also more than a year after the Bush administration had announced its decision to withdraw even the symbolic signature on the treaty that President Clinton had offered in his last weeks in office.

Yes, yes, there is a special history in Germany. "For historical reasons," as a recent article in an international law journal explains, "Germany had a moral obligation not to take a passive role in implementing the Rome Statute." At one level this is quite clearly fanciful. Germany has no more disposition than any other country in Europe to mobilize opposition to mass murder in Darfur, in Chechnya, or anywhere else.

But in another sense, the German past has a great deal to do with Germany's current eagerness to open its courts to accusations against others. Germans have not forgotten their past--but they very much resent those who remind them about it. A 2004 survey by Bielefeld University found that nearly two-thirds of Germans were sick of "all this harping" on Nazi crimes. And a majority of Germans agreed that Israel's actions against Palestinians were similar to what Nazis had done to Jews during the Second World War.

Having committed terrible crimes in the past, Germans are determined to ensure that such crimes will never be repeated--or at least, that other perpetrators will be placed in the same frame as Nazi perpetrators. In the mid-1990s, the German government risked new strains in its already strained relations with Britain by protesting the erection of a London memorial for crews of Bomber Command in the Second World War. Wasn't the bombing of German civilians now agreed to have been a war crime? A few years later, at the risk of greater strains in its relations with Poland and Czechoslovakia, the German government approved plans for a museum and memorial to commemorate the sufferings of Germans expelled from neighboring countries at the end of the war. Wasn't that also a war crime?

In 2003, Germany's president, Social Democrat Johannes Rau, insisted that the record of Nazi crimes should not "exonerate anyone who answered terrible wrongs with terrible wrongs," and all the sufferings of that era must be "understood in its entire context" amidst a "pan-European catastrophe." Many nations fought in that terrible war, and yet all the war guilt was placed on Germany--no, that was not Rau's point, that was in the speeches of an earlier, better-known German leader. Rau's point was that . . . well, that Germans should now be allowed to point accusing fingers, too!

And so they do. The German press has been shrieking with rage over Guantánamo. Prisoners held behind barbed wire! Prisoners without rights! Torture! Gas . . . okay, maybe not that, but, but . . . torture! Have we seen pictures of piled-up corpses, of emaciated detainees, of maimed victims of monstrous experiments? Even the International Red Cross, which has had ready access to Guantánamo, acknowledges there has been nothing of the sort going on there. (Even the CCR complainants protest against pain and humiliation but not permanent, debilitating physical injuries.) Still, when Angela Merkel made her first visit to Washington as chancellor, having affirmed her intention to mend fences with America, she assured the German media that she would confront President Bush with German concerns about--Guantánamo.

Meanwhile, as the CCR prepared to file its new call for prosecutions in Germany, the Democratic Lawyers of Germany awarded a prize to CCR president Michael Ratner for his "pioneering work on international human rights." The award is named after Hans Litten, a lawyer who cross-examined Hitler in a 1931 lawsuit (before German voters placed the Nazis in power) and was subsequently hounded to his death by Nazi police. Litten stood up to Hitler, Ratner stood up to Bush. How appropriate to crown Ratner with Litten's halo!