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The insider's guide to putting world leaders on trial

By Justin Gest for CNN
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(CNN) -- A U.S.-based human rights advocacy group plans to file a criminal lawsuit against several top Bush Administration officials today in a German court, prosecuting them for allegedly authorizing war crimes in the context of the War on Terror. So is this serious, or is it just a stunt?

First of all, who is suing whom?

The Center for Constitutional Rights has announced they will sue former Defense Secretary Donald Rumsfeld, former CIA Director George Tenet, and current Attorney General Alberto Gonzales. The complaint will be brought on behalf of 12 alleged torture victims -- 11 Iraqis who were held at Abu Ghraib prison and one Guantanamo Bay detainee. The lawsuit alleges that the defendants "ordered" war crimes, "aided or abetted" war crimes, or "failed, as civilian superiors or military commanders, to prevent their commission by subordinates, or to punish their subordinates." Prosecutors say that the Bush Administration has sanctioned "harsh interrogation techniques," that constitute torture in violation of several human rights conventions which the US has signed.

This lawsuit follows up a similar 2004 complaint that was dismissed by German courts. However, the organization claims it now has stronger legal grounds for prosecution thanks to new evidence, a new German federal prosecutor, and new circumstances: Rumsfeld resigned last Wednesday.

Why now that Rumsfeld has resigned?

International courts have traditionally respected a general international law that national leaders are granted full immunity from international criminal jurisdiction throughout the duration of their time in office. According to the 1961 Vienna Convention on Diplomatic Relations, "the purpose of such privileges and immunities is not to benefit individuals but to ensure the efficient performance of the functions of diplomatic missions as representing States." But immunity has not been equated with exemption from all future prosecution and/or punishment.

According to the United Nations' International Court of Justice, after a government official leaves office, he or she no longer enjoys all of the immunities accorded by international law in other countries. So, provided that it has jurisdiction under international law, a court of one country may try a former official of another country for acts committed before or after his or her term of office. However, the U.S. withdrew from the UN court in 1986, and currently accepts the court's jurisdiction only on a case-to-case basis.

Why is a U.S. organization suing U.S. officials... in a German court?

There is no international law that gives officials immunity inside their home countries. And out of respect for national sovereignty, controversial executive actions are usually left to be judged by the justice systems inside a leader's home country. But Rumsfeld's prosecutors say the U.S. cannot be expected to provide justice after Congress' recent passage of a law that grants American officials retroactive immunity from prosecution for war crimes. They complain that no international courts or criminal tribunals in Iraq were allowed to conduct investigations of U.S. officials. And they say that because the U.S. has refused to join the International Criminal Court, the option of pursuing prosecution in international courts has been ruled out. So Germany is their best option.

In 2002, Germany approved the Codes of Conduct under International Law -- a statute that allows the German Federal Prosecutor to investigate and prosecute crimes constituting a violation of international human rights laws -- irrespective of the location of the defendant or plaintiff, the place where the crime was carried out, or the nationality of the persons involved.

Has this happened before?

Perhaps the most well-known instance of a national official being tried in a foreign court occurred in 1998 when former Chilean dictator Augusto Pinochet, was arrested in the United Kingdom under an international arrest warrant issued by Spanish judge. Although the government of Chile opposed his arrest, he was placed under house arrest under charges that he tortured 94 Spanish citizens while he was the Chilean head of state between 1973 and 1990.

After a prolonged legal battle in the House of Lords over whether Pinochet could claim immunity, he was eventually extradited to Spain for the crimes he allegedly committed after England's incorporation of the International Convention against Torture in 1988. Once in Spain, Pinochet, who was suffering from dementia, was released on medical grounds. But in May 2004, Chile's supreme court decided that he was actually capable of standing trial, and he was prosecuted on torture allegations that December.

Will it happen this time?

"I mean if Rumsfeld went to the wrong country for some reason, I can imagine a warrant being presented, but they're going to need the evidence," said Professor Chris Brown, an international relations expert at the London School of Economics. "And it's just not there."

Brown added, "At this point, I think it's just a political stunt by left-wingers trying to embarrass the American government. So I wouldn't take it seriously as a legal possibility. The proper thing to do would be to bring a case against him in American courts. I don't believe that there is evidence to suggest it. But that would be the place to do it."


Former Chilean leader Pinochet was proscuted by the country's Supreme Court in 2004.

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