Published 04 Dec 06

International Desk

By Abigail R. Esman
World Defense Review columnist

Torture vs. Terror in the German Courts

If all goes as planned, Donald Rumsfeld will soon be tried for war crimes – in Germany.

No, this is not a joke, and it is not "urban legend." In mid-November, an American organization, the Center for Constitutional Rights, filed charges against Rumsfeld, Alberto Gonzalez, and several others, accusing them of participating in torture and other war crimes. The criminal suit, filed on behalf of eleven Iraqi former prisoners at Abu Ghraib and one Saudi still held in Guantanamo Bay, is to be tried in a German court, thanks to a law in that country that allows the trial of those from all nations on war crimes charges.

This is, in fact, the second time the CCR has pursued this case against Rumsfeld in Germany (the first was in 2004); this time, however, with the loss of his diplomatic immunity status, they are more confident that they will win.

Once we've gotten past scratching our heads at the notion of anyone being tried for war crimes in a German court (and yes, to those bloggers who have repeatedly pointed this out, we do understand that the case has been filed by an American-led group; that doesn't detract from the fact that the courtroom and jury are German, or from the irony accompanying that fact), the question becomes: how reliable are the German courts in these matters?

If Rumsfeld was indeed partly responsible for the atrocities perpetrated at Abu Ghraib and Guantanamo Bay, naturally he should be called to account: but the legal loopholes that allow such a trial to be held in Germany notwithstanding, is Germany best-suited to handle the case?

One may well ask. We know, of course, that Hamburg served as a base for many of the 9/11 operatives. Considerable numbers of subsequent arrests also show that Al Qaeda has firmly ensconced itself throughout the Bundesrepublik, as have several other radical and terrorist groups, both international and homegrown. And the German courts have on more than a few occasions allowed members of such groups to go free.

In fact, in the same week that charges were filed against Rumsfeld and company, Germany finally convicted Mounir el Motassadeq – a known member of Al Qaeda (and friend of several of the 9/11 hijackers) who previously had been acquitted and set free (and retried, and re-released) on numerous occasions since he first faced charges of 3000 counts of murder in 2002. Sentencing, however, has yet to take place; the first time, he was given fifteen years (by German law, the minimum amount that can be served for a life sentence).

Some three million Muslims live in Germany, most from Turkey and Yugoslavia, along with a small but highly radicalized group of Saudis – like those, for instance, who settled in Hamburg before making New York City their final resting place one fateful September morning. Of these, though figures vary, one estimate puts the number of Islamic extremists at as many as 32,000 – or one percent. Not much, one might say; but it's 32,000 people – equivalent to the entire population of Monaco, or for those who prefer a domestic comparison, of Juneau, Alaska.

And probably the number is growing. A study cited by Zachary Shore in the International Herald Tribune determined that about a third of those Muslims felt that Islam should become the state religion – and not just in Germany, but throughout the world.

"Even though they live in Europe," writes Shore, "fifty-six percent declared that they should not adapt too much to Western ways, but should live by Islam. More than a third insisted that if it serves the Islamic community, they are ready to use violence against nonbelievers." (What the Herald Tribune reporter neglects to mention, however, is that this particular study dates from before 2001 – to 1996, in fact. Whether the results would be the same today, one can't really know, of course, without reproducing the study in full; but chances are, they wouldn't have changed much; in fact, they may well be worsening: according to a recent Frontline report, "German public schools are gradually incorporating Islamic education into their curricula.")

Yet Germany seems to be doing little to counteract this trend.

Islamist organizations are thriving, from Arab-led fundraising groups that collect monies for Al Qaeda and Hamas to two of the largest centers of the Muslim Brotherhood, a powerful, propagandizing, Egyptian group responsible for numerous attacks in the Arab region. Milli Görüs, a Turkish organization, also flourishes in Germany, and its German chapter is considered by many to pose one of the biggest threats to security throughout Europe.

German intelligence officials have issued repeated warnings about Milli Görüs (the name means "National Vision"), which, with its estimated 30-50,000 members, oversees as many as 500 German mosques. Dutch reports also show sizable membership among German Muslims in Hezbolla, and Hamas. (The 30-50,000 figure refers only to the German chapter and does not include the 100,000 so-called "sympathizers" in Germany cited by the Hudson Institute's Center on Islam, Democracy, and the Future of the Muslim World.) And of course, it is worth noting, too, that the plot to detonate bombs on two German trains in July of this year failed, not as a result of the brilliant sleuthing and courageous counterterrorism measures of German security officers, but because of the utter incompetence of the bombers.

Not only has Germany done little to address these conditions, but its record for prosecuting alleged terrorists when they are taken into custody – or even dealing with the social problems that encourage domestic radicalization – has been spotty, at best – and not just in the instance of Motassadeq.

"When it comes to dealing with Islamic radicals," reported Craig Whitlock on the front page of the December 14, 2004 edition of The Washington Post, "Germany has some of the most tolerant laws in Europe." In fact, says Whitlock, "Before the September 11 attacks, it was legal to belong to a foreign terrorist organization such as Al Qaeda, as long as it was not active inside the country." (September 11 survivors and the families of victims applaud here.) Further, Whitlock reports, "Germany has been slow to prosecute suspected terrorists wanted by other nations."

Even those suspected of ties to Mohammed Atta have largely escaped prosecution, thanks in part to American refusal to produce evidence, as in the case against Abdelghani Mzoudi, known to have been a member of the same Hamburg-based Al Qaeda cell that perpetrated the attacks. (Mzoudi's acquittal in December, 2004, provided the catalyst, in fact, for the reversal of Motassadeq's first conviction.) Meantime, Syrian-German Mamoun Darkazanli, whom Spanish authorities call "the permanent contact person and assistant of Osama bin Laden in Germany," according to the Associate Press, is another: a recent article in der Spiegel notes that "Darkazanli still lives in his Hamburg apartment, despite the authorities' best efforts to indict him." Adds der Spiegel, Darkazanli is "by no means the only suspected terrorist to escape prosecution, compounding the impression of legal lethargy. The states attorneys failed to build cases against most of the hijackers' associates. A handful have quit the country in the interim; some left voluntarily others were departed. Only one – Ramizi bin al Shibh – is being held by the US in an undisclosed location. But many continue to live in Germany because they are married to German nationals or still enrolled at universities. And above all, because no one can prove they were complicit in Mohammed Atta's plans."

But is it true that "no one can?" Or is Germany, understandably cautious in the shadow of its past persecution of another religious group, exercising a bit too much restraint in its investigations and acceptance of what could serve as evidence, too much willingness to appease and show a friendly face to Muslim extremists? After all, persecution of the Jews can't exactly explain away the eight million dollars the London Times claims Germany paid for the release of three Germans taken hostage in Iraq. True, France and Italy have done the same, and in all cases the prisoners were freed, while Britain's refusal to negotiate with terrorists resulted in the murders of both British victims – Kenneth Bigley and Margaret Hassan.

But there's the thing: Germany did negotiate with the terrorists.

Now, they are accused of negligence in their prosecution of other terrorists, and, in fact, of being lax on terror.

Just last year, German authorities released Mohammad Ali Hammadi, a Lebanese Shiite militant who had been convicted in 1989 of murdering U.S. Navy diver Robert Dean Stetham in the 1985 hijacking of TWA Flight 847.

According to Nile Gardiner, who reported on the release for The Heritage Foundation, Hammadi, who first beat Stetham before executing him, "was subsequently arrested at Frankfurt Airport in 1987 carrying liquid explosives in his luggage. He was sentenced to life in prison in Germany (after German refusals to hand him over for trial in the United States)" but was released in December, 2005 and returned to Lebanon after serving only 18 years. And all this when German Intelligence Chief Ernst Uhrau admitted to the Deutsche Welle that "Due to its prominent profile in foreign and security policy, Germany is becoming more and more a target of terrorist attacks."

Then, of course, there was the brief attempt to cancel the performance of Mozart's "Idomeneo" in Berlin after police warned theater officials that a scene in which the severed head of Mohammed was paraded on the stage would anger Muslim radicals – even while Mohammed's head would have marched alongside those of other greats, like Jesus and Poseidon. (In the end, the opera went on as planned.) But concern remains: How frightened has Germany become of its own history? And how dangerous is that fear to the rest of us? Of course the torturers, if indeed that is what they are, should be brought to justice. But Germany hardly seems the place to provide that justice. Its government and its courts must begin to first take the fomenting pestilence of terrorism in its own country seriously. Only then can true justice be served. No, Germany should not forget (though rising anti-Semitism in that country, particularly among its Muslim population, suggests many already have – and raises another issue the Germans would do well to address). But it is time for Germany to stop running so hard from its own shadow, and to face the reality of it today.

— Abigail R. Esman is an award-winning author-journalist who divides her time between New York and The Netherlands. In addition to her column in World Defense Review, her work has appeared in Foreign Policy, Salon.com, Esquire, Vogue, Glamour, Town & Country, The Christian Science Monitor, The New Republic and many others. She is currently working on a book about Muslim extremism and democracy in the West.

Abigail R. Esman can be reached at esman@worlddefensereview.com.

Visit Esman on the web at abigailesman.com.

© 2006 Abigail R. Esman

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