Why Rumsfeld Can Rest Easy Over German Charges

The lawsuit filed in Germany this week against Defense Secretary Donald Rumsfeld and other senior Administration officials for alleged war crimes in Abu Ghraib and Guantanamo has little chance of making it into court. That's according to Andreas Zimmerman, a professor of international criminal law at Kiel University who helped negotiate the Rome Treaty that founded the International Criminal Court and who drafted the German law under which Rumsfeld has been charged. Under German law, the decision over whether to try the case will rest with the federal prosecutor rather than with a judge. Federal prosecutors, of course, are subject to the wishes of the government, and the government is unlikely to press a case that would antagonize its American allies. "In theory the prosecutor could find him guilty of torture and put him in custody if he visited," says Zimmermann. "But in reality nothing is going to happen."

A similar suit was brought in Germany in 2005 and dismissed after prosecutors ruled that the U.S. still had jurisdiction and was pursuing those responsible. The civil rights activists who brought the Rumsfeld suit claim that the basis for that decision is no longer valid, since only lower-level figures have been convicted in the Abu Ghraib prisoner abuse scandal. The German federal prosecutor Monika Harms will likely make her decision officially early in the new year. "At best it's an uphill struggle," said Zimmermann.

Meanwhile, a German appeals court this week found a friend of three of the 9/11 hijackers guilty of being an accessory to "numerous murders," and sent the case back to a lower court for sentencing.

The finding is important because previously, Mounir el-Motassadeq, 32, had been convicted only of membership in a terrorist organization, and released — that charge carries only a two-year sentence. El-Motassadeq will now likely be rearrested pending sentencing. Hamburg authorities have said they will deport him back to his native Morocco after he has served his time. He faces a maximum sentence of 15 years after being found guilty of being an accessory in the murders of the 246 who died in the planes, but not in the killing of the victims in the towers. That, say experts, means that the judges had enough evidence to determine that he knew planes were going to be hijacked but not what the targets were going to be.