IT IS HARDLY CONCEIVABLE that Donald Rumsfeld will end up serving a prison sentence in some modern counterpart of Spandau Prison, where the Nuremberg defendants served out their terms.
But a German prosecutor is now considering whether to go after Rumsfeld and more than a dozen other high-ranking American officials for alleged war crimes at Abu Ghraib and Guantánamo. Almost certainly German officials will flinch before getting to formal trials. But the issue for now is in German hands.
The Germans can claim that this prosecution was not their idea. The initiative came from the New York-based Center for Constitutional Rights (CCR), which filed a 200-page complaint in mid-November on behalf of 11 Iraqis who claim to have been abused at Abu Ghraib and a Saudi national with similar claims about his treatment at Guantánamo. It's the sort of thing CCR does--an obvious add-on for its domestic litigation against antiterror measures, its appeals for Lynne Stewart (convicted message-carrier for convicted terrorist mastermind Omar Abdel Rahman), and its recent efforts to mobilize demands for the impeachment of President Bush.
CCR filed a similar complaint in November 2004 on behalf of the same complainants. That was dismissed by German prosecutors less than three months later, on the grounds that the United States was already pursuing its own investigations into these abuses. The premise for this earlier German decision is now untenable, says CCR: The U.S. government has continued to shield top officials from accountability, and the Military Commissions Act of 2006 now blocks any effective recourse to U.S. courts.
Janis Karpinski, the demoted former commander at Abu Ghraib who was a target of the original CCR call for prosecution, has now announced that she wants to testify for the prosecution of higher-ups who, she says, are the real culprits. Professors of international law from the United States and elsewhere offer statements of support. International law, they say, not only authorizes but also obligates foreign governments to step forward when perpetrators of international crimes are not called to account by their own government.
If you comb through international treaties and precedents from international tribunals, you might well find plausible grounds for the German prosecutors to act (as under the prohibition on "humiliating and degrading treatment" in the Geneva conventions). The charges are only "frivolous"--as a Pentagon spokesman called them--if you look up from lawyerly parsing of treaty provisions and tribunal precedents and think seriously about real world implications. That is not the way officials in the civilian courts of Europe are trained to think.
So the Germans are in a somewhat awkward spot. And the Bush administration has acted as if it sympathizes with Germany's difficulty here. Or at least, the administration has acted as if it doesn't want to be seen putting overt pressure on the German legal process.
We haven't always acted with such restraint. When Belgian prosecutors announced in 2002 that they were looking into charges against Vice President Cheney--for alleged abuses in the conduct of the 1991 Gulf war, when Cheney was in charge at the Defense Department--American officials warned that we might have to urge the relocation of NATO headquarters, away from Belgium to some country where U.S. officials wouldn't be threatened with subpoenas at every meeting. The Belgians promptly rescinded their universal jurisdiction law.
Even in the earlier round in CCR's case, Rumsfeld announced that, if the prosecution remained open, he could not attend a Munich conference where he'd been expected to speak at the beginning of 2005. Prosecutors then announced the dismissal of the case, in time for Rumsfeld to show up in Munich without a protective entourage of legal advisers. This time, however, the Bush administration has said nothing in public about changes in travel plans, let alone about plans to close remaining U.S. military facilities in Germany, if prosecutors don't reconsider.
But the Germans do not deserve patient forbearance. On the contrary, this episode should be a warning to Washington. If the United States treats this situation as no more than an inadvertent moment of legal confusion, it is asking for more and more challenges down the road. And a lot of Germans really want to supply them.
Start with the law, itself. The CCR sought to have this prosecution launched in Germany because German law is especially open to this sort of legal claim. That is not inadvertent. Germany was, among major states, perhaps the single most enthusiastic advocate for establishing an International Criminal Court in the 1990s. The Germans eagerly pushed forward with the project in disregard of American concerns and objections.
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!
One need not, of course, see things in quite these terms--especially if one indulges the German penchant for abstraction. One might argue instead, as legal commentators often do, that the new Germany is committed to the rule of law, founded on universal values, so the new Germany must also be committed to international law with universal reach. Accordingly, Germany was bound, by its commitment to universal values, to insist that the new International Criminal Court must apply to all nations. And if the ICC cannot act, Germany's commitment to universal values requires it to embrace a universal jurisdiction to see that international crimes are properly punished.
But most abuses won't be punished. After several years in operation, the ICC has so far started only one prosecution (of a warlord from Uganda). Germany cannot address all the remaining crimes in the world. In fact, it has shown no serious interest in pursuing wrongdoers around the world. It has so far launched prosecutions only in relation to atrocities in the Balkan wars of the 1990s (and then in cases where either the victims or the perpetrators ended up in Germany). Does it make sense to focus on minor abuses in democratic states when the world fails to confront entire regimes founded on terror and murder? Yet Germany's Code of Crimes Against International Law, like the ICC statute itself, does not distinguish the most terrible atrocities from lesser offenses, nor does it distinguish democracies from other states.
In effect, Germany's code of international crimes conflates imperfections in reasonably decent countries with the persistent evils that define the world's worst tyrannies. Which side does Germany mean to be on? The implication of its universal jurisdiction statute is that it is simply committed to universal law--that is, it is not on any side. Which is, come to think of it, pretty much where Germany has been since 9/11.
When you point this out to earnest Germans, you are quickly told that Germany has repudiated the nasty doctrines of the Nazi legal theorist Carl Schmitt, who taught that to be "political" one must heed, above all, the difference between "friends and enemies."
Okay, let's agree that Schmitt was not nice. Is there no alternative between Schmitt's brutal "decisionism," on one side, and a Kantian devotion to universal norms, without regard to context or consequence, on the other? For too many Germans, the answer is no. A sense of balance, of proportion, of prudent moderation, has not been a hallmark of German political culture.
Classical treatises on international law held that no nation should set itself up as judge of another except under the most serious provocation--the sort of provocation that might justify a military response. That's still a good rule, if you want to be universal. But if you want to get down to cases, of all nations, Germany is among the very least suited to serve as judge of the world.
Apart from older disabilities, arising from those "historical reasons," today's Germany is so averse to military engagement that it cannot distinguish reasonable from excessive military tactics. It has refused to allow its own troops in Afghanistan to engage in combat operations, even with a German in nominal command of NATO forces there. Even after the Security Council urged all states to assist the new Iraqi government in restoring order in 2003, Germany's offer was so insultingly small--it would train Iraqi police but not in Iraq and not even in any neighboring country--that the Iraqis rejected it out of hand. Despite Germany's much larger population, Canada and Australia, even little Denmark, make much more of a military contribution to struggles against evil forces in the world today. Germany is no longer a fighting nation. Being a bystander to world conflict is no qualification, in itself, to be a world judge.
Yet the Bush administration now seems to think it would be enough for Germany to find some technical reason to dispense with the charges against Rumsfeld. If it does not protest openly and emphatically against Germany's claim to jurisdiction over American officials, however, the administration implies that there is nothing wrong with the claim in principle. Which means we remain open to the possibility that similar charges may be revived in the future, even for the same episodes. Germany's law allows no statute of limitations. And a prosecution, once it gets started, can cause lots of headaches, even if it does not reach a guilty verdict. (Ask Scooter Libby.)
The objection to letting Germany set itself up as judge of American officials is not technical. We ought to mention that we object to this sort of thing in principle. We might even call that objection universal. But we might also make clear that our objection to German trials is also special, or at least especially emphatic.
Sure, sure, there are more varieties of relationship than "friend" and "enemy." But we should not tolerate Germany's trying to engage in prosecutorial therapy at American expense. Secretary of State Condoleezza Rice should make the point very clear. Germany can continue to call itself an American ally or it can persist in setting itself up as our judge. It can't do both.
Jeremy Rabkin teaches international law at Cornell and is author, most recently, of Law without Nations? Why Constitutional Government Requires Sovereign States (Princeton).