CHAPTER TEN Use of Force New cases: Israeli Targeted Killing Case ......(§10.6 SCt re Occupied Territ.) Hamdan Military Comm'n Case ......(§10.7 SCt June 2006 version) Military Commission Act ......(§10.7 October 17, 2006) 10.6 Laws of War--Traditional Applications In Center for Constitutional Rights v. Rumsfeld, the Oberlandesgericht (Higher Regional Court at Stuttgart) dismissed a case against the U.S. Secretary of Defense, on February 10, 2005, reprinted at 45 I.L.M. 122 (2006), unofficial translation available at <http:// www.iuscomp.org/gla/statutes/VoeStGB.pdf>. This proceeding sought to impose criminal liability on the Secretary, and others, for war crimes at Iraq's Abu Grahib prison (see Course Web Page, Chapter 10, click Abu Grahib Prison Scandal). Germany's universal jurisdiction law states as follows: "This Act shall apply to all criminal offences against international law designated under this Act, [i.e.,] to serious criminal offences designated therein even when the offence was committed abroad and bears no relation to Germany." Section 153f of this law also provides: "the public prosecution office can . . . refrain from prosecuting an offence . . . punishable pursuant to . . . the Code of Crimes against International Law, if (1) there is no suspicion of a German having committed such offence, (2) such offence was not committed against a German, (3) no suspect in respect of such offence is present in Germany and such presence is not to be anticipated and (4) the offence is being prosecuted before an international court or by a state on whose territory the offence was committed, whose national is suspected of its commission or whose national was harmed by the offence." The Federal Prosecutor thus dimissed this case, which was reviewed by the above Stuttgart court. Only then did Secretary Rumsfeld attend a security conference in Germany. .....Germany's General Prosecutor interpreted this section to mean that the State of the perpetrator or the victim is supposed to have primary jurisdiction for criminal prosecution, whereas other states shall merely posses a subsidiary competence. Article 129(2) of the 1949 Geneva Conventions refers to the duty of instantaneous investigation, and prosecution of persons accused of having ordered (or committed) grave breaches of the conventions. The petitioners thus alleged that the General Prosecutor's assumption that American justice would deal seriously with the criminal responsibility of potential criminal defendants--other than subordinate soldiers--violated Germany's obligations under International Law. Nevertheless, the Stuttgart court referred to the Code of Criminal Procedure, which provides: "The application shall not be admissible when the subject of the proceedings is solely a criminal offence which may be prosecuted by the aggrieved party by way of a private prosecution, or if the public prosecution office refrains from bringing public charges. . . ." .....As the reviewing court noted: "There were no indications that the authorities and courts of the United States of America were refraining or would refrain from prosecuting the alleged crimes described in the complaint. Therefore no review would be necessary as to whether the claims of the plaintiffs were sufficient to justify the initiation of an investigation procedure." (45 I.L.M., at 123). Further, "[n]o contacts are purported to exist or seem to exist to Germany, apart from the military bases in Heidelberg and Wiesbaden, since the crimes were allegedly committed in Iraq (and therefore outside Germany). The defendants are citizens of the United States of America, and the complainants are Iraqi nationals, therefore, no German national is suspected of having committed the crimes." 10.7 Laws of War: Post-9-11 US Application The US 2006 National Security Strategy contains no substantive change in the US policy regarding pre-emptive first-strike self-defense. It focuses on democracy and related ideals which, in the US view, necessitate adherence to this policy. The full report is available on the Course Web Page, immediately under the 2002 US National Security Exercise. The Military Commission Act of (MCA Oct.) 2006 is the legislative response to the U.S. Supreme Court's June 2006 Hamdan decision, wherein the majority held that the President's military commissions violated both U.S. law and the Geneva Conventions. Both Hamdan and the MCA are on the Course Web Page under Chapter Ten.
Bibliography: G. Miller, DEFINING TORTURE (NYC: Cardozo School of Law, 2005). Contact info: .....<www.cardozo.yu.edu/floersh/index.asp> D. Gambetta, MAKING SENSE OF SUICIDE MISSIONS (Oxford, Eng: Oxford Univ. Press, 2005) F. Kalshoven, BELLIGREENT REPRAISALS (Leiden: Martinus Nijhoff, 2005) F. Martin, et al., INTERNATIONAL HUMAN RIGHTS & HUMANITARIAN LAW: TREATIES, CASES & ANALYSIS (Cambridge, Eng.: Cambridge, 2006) P. Eden & T. O'Donnell (ed.), SEPTEMBER 11, 2001: A TURNING POINT IN INTERNATIONAL AND DOMESTIC LAW? (Ardsley, NY: 2005) L. Perna, THE FORMATION OF THE TREATY LAW OF NON-INTERNATIONAL ARMED CONFLICTS (Leiden: Martinus Nijhoff, 2006) Symposium: Torture and the War on Terror, 37 CASE WESTERN RESERVE J. INT'L LAW 145-614 (and Appendices) (2006)Andreas Laursen, CHANGING INTERNATIONAL LAW TO MEET NEW CHALLENGES: INTERPRETATION, MODIFICATION aND THE USE OF FORCE (Copenhagen: DJØF Publishing, 2006) Rosa Brooks, Jane Stromseth, David Wippman, CAN MIGHT MAKE RIGHT? BUILDING THE RULE OF LAW AFTER MILITARY INTERVENTIONS (Cambridge, Eng.: Cambridge University Press, 2006) Fiommuala Ni Aolain, Oren Grossm, LAW IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE (Cambridge, Eng.: Cambridge University Press, 2006) .