The German Criminal Charges Against Donald Rumsfeld - the Long Road to Implement International Criminal Justice at the Domestic Level

Abstract

At a first glance, the Rumsfeld case seems to demonstrate to what extent Realpolitik may affect the quest for justice. The latter was hereby heavily affected by political and diplomatic questions and considerations by the United States secretary of state’s threat to abstain from participating in the global security conference in Munich, Germany, in November 2005 because the criminal proceedings were still in progress. Conveniently and in order to avoid any diplomatic annoyance, the case was dismissed precisely one day before the commencement of this event.The Rumsfeld case did not establish the necessary “Grundsatzentscheidung” on the applicability of the Code of Crimes against International Law for future cases. The federal prosecutor missed the opportunity to add some jurisprudence to the otherwise hardly developed case law on the commission of international crimes through the means of legal aiding and abetting. It only resembled an example where German penal procedural law led to the eventual dismissal on the grounds of the principle of the subsidiarity of the criminal prosecution of international crimes before German criminal courts.The outcome of the Rumsfeld case explicitly acknowledged the fact that the present United States administration does not cover up incidents of criminal misconduct of its military personnel but prosecutes such crimes in a satisfying (at least for the German prosecution) fashion. Recent examples from the ongoing anti-terror “Operation Iraqi Freedom” document illustrate the determination of the United States military leadership to stamp out any misconduct which would undermine and jeopardize the overall war effort of the allies (which is to counter the present threat of global Islamist extremism).The most recent development in that regard is George Bush’s presidential decree of 20 July 2007 which considerably limits the possibilities of coercion and other “stressful” interrogation techniques.

The Rumsfeld case could have provided the opportunity to test the practical value of the Code of Crimes against International Law and its judicial application for the prosecution of international crimes at the domestic German level. To miss such a chance is unfortunate, considering the fact that the prosecution of international crimes before domestic courts has faced some stagnation since the outcomes in the Pinochet and Yerodia cases (as the more prominent examples of domestic adjudications of international crimes and their domestic and international reverberations). It will be interesting to see how the concept of international justice for serious international crimes develops in future and what its implementation will look like.