Mr President,
11 June 2006, Geneva The International Federation for Human Rights (FIDH), and its member organisation in the United States, the Center for Constitutional Rights, together with the Republican Attorneys’ Association (RAV), and Lawyers Against the War (LAW) submitted in February 2006 a complaint to the Mr. Leandro Despouy, UN Special Rapporteur on the Independence of Judges and Lawyers, claiming that the case filed in 2004 on behalf of Iraqi citizens who were tortured while detained at Abu Ghraib and other US detention centres, was evidently dismissed by the German Federal Prosecutor for political rather than legal reasons. A second complaint in April 2007 this year was submitted by the plaintiffs to the German prosecutor and was also dismissed. It had been brought under Germany’s universal jurisdiction law, the 2002 Code of Crimes against International Law, which provides for the prosecution of war criminals wherever they are found and “even when the offence was committed abroad and bears no relation to Germany.”
The criminal case requests an investigation into war crimes allegedly carried out by high ranking American civilian and military officials, including Donald Rumsfeld, former US Secretary of Defense. The charges include violations of the German Code “War Crimes against Persons,” which outlaws killing, torture, cruel and inhumane treatment, sexual coercion and forcible transfers. The Code makes criminally responsible those who carry out the above acts as well as those who induce, condone or order the acts. It also makes commanders liable, whether civilian or military, who fail to prevent their subordinates from committing such acts.
The Code grants universal jurisdiction for the above-described crimes. As soon as the lawsuit against Donald Rumsfeld and others was made public, the Pentagon warned German authorities that such “frivolous lawsuits”, if taken seriously by the German judiciary, would affect the broader US-Germany relationship.
Mr President,
States also have the crucial duty to ensure that prosecutors can carry out their professional functions impartially and objectively, therefore both the United States and Germany committed a violation of that principle. Prosecutors have the obligation to act independently when the case submitted provides them with an abundance of irrefutable evidence accompanying the complaint, evidence of torture, such as the case filed in Germany. The Committee Against Torture stated that a public prosecutor commits a breach of his duty of impartiality if he fails to appeal for the dismissal of a judicial decision in a case where there is evidence of torture.
We call on Germany to ensure the independence of the judiciary in this case and to respond positively to Mr Despouy.
We also call on all members of the Human Rights Council to reaffirm the independence of the prosecutor, in particular for acts of torture involving public officials and to send a strong message in favour of human rights protection by shedding light on the violations committed respectively by the United States government and the German justice system.