Why Germany Can and Should Open an Investigation into US Torture

In 2004, four Iraqis filed a criminal complaint with the German federal prosecutor against senior United States officials alleging torture by US armed forces in Abu Ghraib prison in Iraq. The US government strongly protested and warned that the complaint could affect US-German relationships. The German federal prosecutor rejected the complaint, making a sweeping statement that "there were no indications that the US authorities and courts were refraining from taking legal action" on torture in US-led detention centres in Iraq.

Ten years later, it is abundantly clear that the US has failed to conduct effective investigations not only into most of the crimes committed at Abu Ghraib, but also in the broader state-sanctioned torture program created following the 9/11 attacks.

In December 2014, the US Senate released a damning 499-page summary of its report investigating the CIA secret rendition, detention, and interrogation program. The Senate report summary confirmed previous accounts of grave abuses against detainees and revealed that torture committed by US officials had been more brutal, systematic, and widespread than previously known. Detainees were held in pitch-dark windowless cells, chained to the walls, naked or diapered, for weeks, months or years. Others were subjected to abusive "rectal feeding" and waterboarding. One detainee was forced to stand for days on end without sleep with broken bones.

Grave crimes under international law were committed. The US government has a legal obligation to investigate and prosecute those responsible. But the unwillingness of US authorities to seek justice for the victims of grave abuses heightens the importance of other governments, including Germany, acting where possible to limit impunity.

In a report issued on December 1, Human Rights Watch debunks the excuses that US officials give to justify impunity, including President Obama's position that it is "time to look forward and not backwards" and claims that legal obstacles prevent criminal investigations. The report shows that it is possible under US federal law to prosecute these crimes. Failure to do so not only violates US obligations under international law, but it also leaves open the option that future US officials will reinstate such abusive policies. This is hardly an alarmist statement, given that some 2016 US presidential candidates have already suggested they would bring these policies back if elected.

The US Justice Department should conduct new investigations. But investigations are also possible in other countries.

German domestic legislation grants jurisdiction to national courts over certain grave international crimes, even if they were committed abroad, against foreigners or by foreigners. This is consistent with an important principle under international law known as "universal jurisdiction." In 2009, Germany established a specialized "war crimes unit" within the Federal police and Prosecution Office to investigate atrocity crimes. Two trials have already been held, for crimes committed in Rwanda and the Democratic Republic of Congo. Several other investigations are ongoing, including "structural investigations," which allow the collection of information and evidence in the absence of a specific suspect - for example concerning ongoing crimes in Syria.

International law rules and political resolve to eliminate impunity for unspeakable atrocities originated with the rejection of Nazi crimes after World War II and the ensuing Nuremberg trials. Building on its history, Germany is one of the countries that have taken a leading role today in ensuring that such serious crimes do not go unpunished.

In December 2014, following the release of the US Senate report summary, a new criminal complaint against US officials in relation to US torture was filed in Germany.

The German federal prosecutor should consider opening a "structural investigation" into grave abuses committed by US officials after 9/11. Opening such a structural investigation would be a strong signal that even the officials of a powerful nation like the US who commit torture and war crimes are not beyond the reach of the law. It would show that Germany is equally determined to fight impunity for atrocities, be it in Rwanda, Syria, or the US.

The information collected through the structural investigation could be used in future prosecutions, should the suspects ever travel to Germany. Even if the suspects avoided going to Germany and other countries where such investigations could be opened, all would not be lost. Shrinking travel options for suspects and the collection of evidence for later use would only be a small step for accountability. But it would be a step in the right direction.