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Hastings Law Journal

Abstract

Following the release of disturbing photographs from Abu Ghraib, the Center for Constitutional Rights (CCR) filed a criminal complaint in Germany against high-ranking U.S. political and military leaders, under a law that gives German courts universal jurisdiction over war crimes and crimes against humanity. This law enables Germany to prosecute perpetrators of these crimes, regardless of where the crime occurred, or whether the perpetrators or victims have any connection to the German forum. The CCR had viewed the German court as the court of last resort based on the documented unwillingness of the U.S. government to investigate involvement of all but the lowest level of participants in the Abu Ghraib crimes. The German Prosecutor ultimately dismissed the complaint out of deference to the U.S. government to perform its own investigation. However, war crimes and crimes against humanity have no statute of limitations. As the case of General Pinochet attests, there is no guarantee that prosecutions will not ultimately be pursued under universal jurisdiction laws in the future, as political power waxes and wanes.

The failure of the political branches to instigate or allow an independent investigation of high-ranking U.S. officials' involvement and culpability for the crimes committed at Abu Ghraib creates at least two problems: 1) it allows for the perception and possibility that U.S. officials may commit war crimes through U.S. military operations with impunity; and 2) it contributes to the likelihood that U.S. citizens traveling overseas will be hauled into criminal courts in foreign jurisdictions where the U.S. government cannot guarantee their rights to due process and a fair trial. The creation of an independent prosecutor function, with the appropriate checks and balances on its investigative and prosecutorial authority, would provide a long-term solution to the problem of protecting U.S. citizens while simultaneously holding them accountable.

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