Rumsfeld on the Lamb?

According to the AP wire, Secretary of Defense Donald Rumsfeld is thinking about postponing his scheduled trip to attend and speak at the Munich Conference on Security Policy in Germany next week. Apparently, Defense Secretaries typically attend, though DoD #2 Paul Wolfowitz represented the US in 2002.

Want to know why Rumsfeld may not be going?

Attorneys from the New York-based Center for Constitutional Rights filed a suit with German federal prosecutors last November charging that U.S. officials, including Rumsfeld, are responsible for acts of torture against detainees at the Abu Ghraib prison in Iraq. That is the prison where U.S. soldiers were photographed abusing and sexually humiliating Iraqi detainees...

The lawsuit against Rumsfeld was filed in Germany because its laws allow for the prosecution of war crimes and human rights violations across national boundaries.

The cases are obviously different, but the underlying legal argument is similar to the one used to go after former Chilean dictator Augusto Pinochet in Spanish courts in the late 1990s.

The AP story also includes this odd line:

"Because the United States is not a member of the International Criminal Court, the case could not be filed there."

Meaning: an ICC case could not be filed in Germany. However, this is a simplification that obscures more than it explains.

The ICC has jurisdiction over states that are not party to the Rome Statute. Parties to the treaty had no reason to think that leaders of rogue states and other potential war criminals were going to agree to abide by the rules.

However, there are limits on all prosecutions under the agreement. For example, Rumsfeld could claim that the case should first be filed in the US. This protection was negotiated by the US in Rome years ago. The idea was to protect US soldiers from international prosecutors potentially gone wild.

Also, the US helped negotiate language in the treaty that created other notable exemptions -- and the US has been seeking those exemptions over the years. For a year or so, the US gained Security Council exemption for potential prosecution of its peacekeepers in various UN missions. Most importantly, the US has bargained bilaterally with at least 68 other states to gain exemptions (under so-called Status of Forces Agreements, or SOFAs). Unsurprisingly, a lot of US aid recipients have signed these deals with America. Various "carrots and sticks" were reportedly used to induce cooperation.

EU nations like Germany, however, have not and apparently cannot sign them.

The AMICC, a US NGO, keeps track of these sorts of things. Here, it demonstrates that the Bush administration is well-aware of the risk from US deployments abroad, even under the auspices of the UN:

US Ambassador Cunningham stated that, "In the absence of a new [Security Council exemption] resolution, the United States will need to take into account the risk of ICC review when determining contributions to UN authorized or established operations. We will also continue to negotiate bilateral agreements consistent with Article 98 of the Rome Statue to further protect U.S. persons from the exercise of jurisdiction by the ICC." Shortly after announcing its decision, the US pulled out peacekeepers from several UN missions, including 2 from Kosovo and 7 from Ethiopia-Eritrea.

So, we may one day have some neo-convicts after all.