I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Wednesday, November 15, 2006

Germany's claim to "universal" power over other countries' citizens

The Center for Constitutional Rights, working with various European human rights groups and German lawyers, has "filed a lawsuit calling on German prosecutors to investigate outgoing US Defense Secretary Donald Rumsfeld for allegedly sanctioning torture." Other defendants include Alberto Gonzales and George Tenet.

None of the acts which the lawsuit alleges were committed by the defendants took place in Germany, nor were they committed against German citizens or even against any individuals in Germany. Rather, the complaint was "brought on behalf of 11 former Iraqi detainees of the notorious Abu Ghraib prison near Baghdad and one Saudi currently being held at the US prison in Guantanamo Bay, Cuba."

The reason the prosecution is sought in Germany -- even though the alleged acts have nothing to do with Germany or German citizens -- is because Germany enacted a law granting itself so-called "universal jurisdiction," whereby it claims the right to prosecute anyone in the world for various war-related crimes regardless of where the crimes occurred or against whom they were committed. As the CCR says:

The complaint is being filed under the Code of Crimes against International Law (CCIL), enacted by Germany in compliance with the Rome Statute creating the International Criminal Court in 2002, which Germany ratified. The CCIL provides for “universal jurisdiction” for war crimes, crimes of genocide and crimes against humanity. It enables the German Federal Prosecutor to investigate and prosecute crimes constituting a violation of the CCIL, irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved.

Belgium previously had a similar law, but repealed it. As a result, Belgium's claim to power is now much more modest and democratic: "Belgian courts will only have jurisdiction over international crimes if the accused is Belgian or has his primary residence in Belgium; if the victim is Belgian or has lived in Belgium for at least three years at the time the crimes were committed; or if Belgium is required by treaty to exercise jurisdiction over the case."

But Germany continues to claim the power to subject other countries' citizens to its laws, to be convicted by its judges and sentenced by its government, even if those citizens have nothing whatsoever to do with Germany or with German citizens. That is nothing less than a claim to worldwide power -- to subject individuals to the rule of the German political system even though those individuals have no say in that system and no representation in it. In short, it is the assertion of government rule without even the pretense of consent by the governed.

What possible justification is there for the German Government to assert legal power over other countries' citizens for acts that were not committed in Germany or to German citizens? And how can anyone justify having Americans subjected to trial by German courts and German judges under German law, when they have no representation whatsoever in the German system of government?

This notion of one country being so hubristic that they arrogate unto themselves the right of "universal jurisdiction" -- basically the power of a world government -- seems rather dangerous and un-democratic in the extreme. "Consent of the governed" is the linchpin of the legitimate exercise of government power, and it is utterly lacking with Germany's claim of universal jurisdiction.

It doesn't matter how bad of a person one thinks Rumsfeld is or how criminal one thinks his conduct is. None of that justifies having him prosecuted by a foreign government in which he has no democratic representation and no input and which has no unique connection to his alleged crimes (in exactly the same way that the fact that certain detainees in U.S. custody may very well be evil, murderous terrorists doesn't justify denial of minimal protections of due process).

This is not a case where numerous countries have jointly convened an international tribunal to judge war criminals from a country which no longer has a functioning government, nor is it a case of subjecting an individual to a system of international laws by which the defendant's government has agreed to be bound. This is just an exercise of raw and arrogant power -- wholly undemocratic, unaccountable power -- by one government which apparently thinks it is authorized to assert its rule over the entire world.

The sentiments fueling this effort are clear and understandable. The CCR represents numerous Iraqis and other foreign nationals held in Abu Grahib and Guantanamo who have been subjected to hideous abuses -- physical, psychological and legal -- and they are searching for ways to advance their clients' interests and hold the wrongdoers accountable. Not only is there nothing wrong with that, that is their obligation. But that doesn't make their effort any less dangerous or wrong.

After all, it's also true (without positing any equivalencies one way or the other) that there really are Islamic extremists plotting to slaughter large numbers of innocent civilians around the world and it is necessary to find them, stop them and punish them. But in neither case do the desirable ends justify the use of undemocratic and lawless means to achieve them.

As always, exotic and extreme powers -- whether it be unchecked executive powers to break the law, the ability to criminalize the expression of certain opinions, the power to eavesdrop with no oversight, having foreign governments assert "universal" jurisdiction -- ought not be cheered on simply because they happen to be exercised in a way that seems desirable, or against individuals who are dangerous or destructive in some way. There is a responsibility to assess those powers as a general principle -- not only when wielded by those whom one likes against those whom one dislikes, but to assess their potential for abuse and how they might be used by different governments towards different ends.

Even if one thinks that Donald Rumsfeld is the most evil war criminal in history, and that the invasion of Iraq was the most evil and criminal act of aggression in the last century, the German Government has no authority whatsoever to subject Rumsfeld to its courts, its political officials and its laws. And the profoundly anti-democratic attempt to do so is no less disturbing merely because one believes that it is being pursued with noble goals or against individuals who merit punishment.

UPDATE: Several people have defended the theory of "universal jurisdiction" in the comment section -- very unpersuasively (in my view) though intelligently. As a result, the ensuing disussion in the comment section is quite substantive and informed and sheds much additional light on this topic, for those interested.

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