Last month, a coalition of self-styled human rights groups, including the New York-based Center for Constitutional Rights, announced that it had filed a war crimes complaint in Germany against Donald Rumsfeld and thirteen other present or former U.S. officials. Other sponsoring plaintiffs include Germany's Union of Republican Lawyers (RAV) and the French-based International Federation for Human Rights (FIDH). (The presence of the FIDH among the plaintiffs is particularly noteworthy, since the FIDH is a regular and substantial recipient of EU financing.) Whereas the announcement will undoubtedly have sent Rumsfeld-haters, Bush-bashers and anti-Iraq War activists the world over into raptures, those taking a more sober view of the matter as a strictly legal development may well have asked themselves "What war crimes did Donald Rumsfeld commit in Germany?"
After all, the principle of state sovereignty -- still at least nominally the cornerstone of the international system as reaffirmed in Article 2.1 of the U.N. Charter -- would appear to exclude any such prosecution of Rumsfeld by Germany if he had not. For one state to claim anything other than territorially based jurisdiction over acts of citizens of another state must, needless to say, be regarded as a hostile measure -- and all the more so if the latter are or were state officials and the acts in question were performed in official capacity. Were the other state to respond in kind -- say, in this instance, by charging German Defense Minister Franz Josef Jung for the real or imagined misdeeds of German troops -- its hostile nature would become especially plain and the potential for a perilous escalation, obvious. The raison d'être of the classical protections of sovereignty -- namely, the preservation of international peace -- is thus unmistakable.
But apparently it is not so well understood in Germany. For many years now, German philosophers, jurists and even state officials have been militating for the application of a so-called "principle of cosmopolitan law" or "Weltrechtsprinzip" that would transcend the classical restrictions in the case of war crimes and related charges. Defying ordinary logic in the manner of squared circles or the contradiction-laden "dialectical" logic of the 19th Century German philosopher Hegel, the Weltrechtsprinzip is supposed somehow to invest particular states with "universal jurisdiction."
Already in the 1990s, German courts began to apply the Weltrechtsprinzip in connection with the Balkan civil wars. It is not widely known that Germany was one of the major forces behind the establishment of the International Criminal Tribunal for the former Yugoslavia (ICTY). Then-German Foreign Minister Klaus Kinkel called for the creation of such a tribunal already in August 1992, barely four months after the outbreak of hostilities in Bosnia (International Conference for the Former Yugoslavia, London, Aug. 26, 1992). But it is even less widely known -- outside of Germany at any rate -- that German courts also tried and convicted alleged Serb war criminals independently of the ICTY.
In June 2002, the German Bundestag then gave a statutory backing to the practice of the courts by passing into German law a so-called "International Criminal Code." Paragraph 1 of the latter reads: "This law is applicable to all the crimes against international law described in it . . . even if the criminal act is committed in another country and has no relation to this country [zum Inland]." In pleading for the adoption of the law before the Bundestag on April 25, 2002, the German Minister of Justice explained the meaning of this provision in more colloquial language: "Even perpetrators who are neither themselves German, nor have committed their crimes against humanity in Germany or against Germans, can be brought to justice here."
In retrospect, it can be seen as a sign of things to come that the German Minister of Justice who uttered these words was none other than Herta Däubler-Gmelin: the same Herta Däubler-Gmelin who only three months after the passage of the law -- and, n.B., some six months before the beginning of the Iraq War -- would famously compare George W. Bush to Adolf Hitler. It is also worth noting that by Summer 2002, war crimes accusations against the American military had already begun to circulate widely in the German media: namely, in connection with the war in Afghanistan and an alleged "massacre" of Taliban fighters. Indeed, already in November 2001, the so-called Society for Endangered Peoples (GfbV), an influential German NGO that has played a leading role in agitating for war crimes prosecutions, pointed the finger specifically at Donald Rumsfeld. Thus a November 30, 2001, article in the GfbV newsletter bears the title "Rumsfeld Complicit in the Mass Killing of Taliban -- War Crimes Like in Vietnam Must Not Be Permitted to Happen Again!" (For background on the GfbV, see here.)
In her April 2002 speech to the Bundestag, Däubler-Gmelin had some trouble making clear why German jurisdiction should be "universalized" via the "International Criminal Code" when the Rome Statute creating an International Criminal Court (ICC) to try the same categories of crime had only just come into effect. Germany was one of the original members of the new court and indeed had been more active than any other state in agitating for its creation. "We all know that the prosecution of crimes against international law by the German courts remains important," Däubler-Gmelin insisted:
The principle of complementarity in the Rome Statute lays down that that the International Criminal Court has jurisdiction only when states are not willing or able to prosecute one of the core crimes included in the Statute. That means that the state-parties retain responsibility for international criminal jurisdiction inasmuch as they are able. As a state respecting the rule of law, we can and want to [wir . . . können und wollen das].
Däubler-Gmelin did not mention -- and perhaps indeed did not understand -- that the relevant article of the Rome Statute (Art. 17) clearly refers to just those states that have jurisdiction according to the classical either territorial or personal criteria. It does not refer, as Däubler-Gmelin's remarkably capricious interpretation would suggest, to just any state that so happens to decide that it "can and wants to." (The paragraph refers to "a state which has jurisdiction over [a case]": a specification that would obviously be devoid of sense if all states, as according to the German doctrine of "universal jurisdiction," were presumed to have jurisdiction.)
Whereas, moreover, Germany lobbied hard to have the Rome Statute assert the "universal jurisdiction" of the ICC, the final version of the statute largely limits the jurisdiction of the court to those states that have expressly recognized its jurisdiction by becoming members. Although the wording of the statute on this point -- presumably as an artifact of German lobbying efforts -- continues to display a curious lack of precision, the only clear exception to the rule is if a case is referred to the court by the U.N. Security Council. In unilaterally extending German jurisdiction to the entire world, Germany's "International Criminal Code" thus represents a far more radical departure from international norms than the ICC Statute.
It is notable in this connection that Germany itself does not accept the compulsory jurisdiction of the International Court of Justice: the U.N. court with which the ICC is often confused and that was established to arbitrate disputes between states.
It is equally notable that reunited Germany has displayed a marked reluctance to acknowledge German responsibility for war crimes or to cooperate in war crimes prosecutions of Germans undertaken abroad in accordance with the traditional territorial principle of jurisdiction. Thus, for example, German courts predictably dismissed a war crimes complaint filed against Germany by survivors of a NATO air attack on the Serbian town of Varvarin that occurred during the Kosovo War. Still more remarkably, the reluctance to accept legal responsibility or to facilitate prosecutions abroad extends also to well-documented Nazi-era war crimes. Thus, for example, both the German government and German courts have persistently refused to recognize Germany's legal responsibility for the massacre of over 200 civilians, most of them women and children, by an SS division in the Greek village of Distomo in June 1944. Indeed, the German government has carefully avoided qualifying the Distomo massacre as a war crime, preferring in a 1995 letter to speak of "measures taken within the framework of the war effort" [Maßnahme im Rahmen der Kriegsführung]. According to a June 2002 report by the German television magazine Fakt, veterans of the SS division responsible for the Distomo massacre meet yearly in the Austrian town of Gröbming to commemorate their fallen comrades.
Efforts to hold individual German citizens criminally responsible for Nazi-era war crimes have likewise been made to fail through the non-cooperation of German authorities. Thus, for example, in June 2005, 10 former members of the Waffen-SS "Reichsführer" division were found guilty of mass murder by an Italian court for their roles in the massacre of some 560 residents of the village of Sant'Anna di Stazzema on August 12, 1944. None of them, however, will serve their life sentences, since Germany refuses to extradite them. (On the Sant'Anna case, see here.) Despite the announcement of a separate German "investigation," to date no charges have been brought against the ten men in Germany -- a fact that, to paraphrase Ms. Däubler-Gmelin, might lead one to wonder whether Germany "can or wants to" prosecute them. The perpetrators of the Sant'Anna massacre, like those of the Distomo massacre, have every prospect of living out the remainder of their lives in comfortable retirement in Germany.
John Rosenthal writes on European politics and transatlantic relations. He has written previously on Germany and "Universal Jurisdiction" in "A Lawless Global Court: How the International Criminal Court Undermines the UN System" in Policy Review magazine.
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