DOS Cable re: Justice Ministry View on Legal Assistance for U.S. Military Commission Cases

State Department cable concerning the German representative to the Council of Europe. Committee of Ministers. Justice Ministry committee told U.S. Embassy officials thast military commissions are "extraordinary courts" and thus "run counter to international law and the German constitution," and thus that Germany would not approve extradition requests to military commissions.

Doc_type: 
Cable
Doc_date: 
Thursday, April 11, 2002
Doc_rel_date: 
Wednesday, December 29, 2004
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827391 111100Z /38
P 111057Z APR 02

FM AMEMBASSY BERLIN
TO SECSTATE WASHDC PRIORITY 7289
INFO EU MEMBER STATES
DEPT OF JUSTICE WASHDC
SECDEF WASHDC

NSC WASHDC
USMISSION USNATO
USMISSION USUN NEW YORK
XMT AMEMBASSY BERLIN

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TAGS: PTER, KJUS, GM
SUBJECT': JUSTICE MINISTRY VIEW ON LEGAL ASSISTANCE FOR U.S.
MILITARY COMMISSION CASES

SUMMARY

1. (SBU) A JUSTICE MINISTRY INTERNATIONAL LAW EXPERT TOLD
EMBOFFS APRIL 10 THAT, DESPITE SOME POSITIVE ASPECTS OF THE
NEWLY-PUBLISHED DOD RULES FOR MILITARY COMMISSIONS, THE MOJ
BELIEVES THEY ARE STILL "EXTRAORDINARY COURTS" AND

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UNITED STATES DEPARTMENT OF STATE REVIEW AUTHORITY: SHARON E AHMAD DOS-001935 DATE/CASE ID: 04 NOV 2004 200303827
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THEREFORE RUN COUNTER TO INTERNATIONAL LAW AND THE GERMAN
CONSTITUTION. HE SAID THE MOJ WOULD NOT APPROVE A U.S.
REQUEST FOR EXTRADITION TO MILITARY COMMISSION UNDER THE
BILATERAL EXTRADITION TREATY. REQUESTS FOR GENERAL LEGAL
ASSISTANCE IN THE CONTEXT OF A MILITARY COMMISSION WOULD BE
DECIDED ON A CASE-TO-CASE BASIS, AND WOULD REQUIRE THE

CUSTOMARY DEATH PENALTY WAIVER. AN INFORMAL EMBASSY
TRANSLATION OF THE MOJ'S ASSESSMENT IS PROVIDED AT PARA 5.
MFA LEGAL ADVISOR SCHMIDT-BREMME SEPARATELY PROVIDED US A

SIMILAR NEGATIVE VIEW ON MILITARY COMMISSIONS.

NO EXTRADITION TO A MILITARY COMMISSION

2. (SBU) JUSTICE MINISTRY INTERNATIONAL LAW EXPERT EBERHARD
DESCH TOLD EMBOFFS APRIL 10 THAT, IN THE MOJ'S VIEW, US
MILITARY COMMISSIONS BASED ON THE PRESIDENT'S MILITARY
ORDER FROM NOVEMBER 13, 2001 ARE "EXTRAORDINARY COURTS"

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("AUSNAHMEGERICHTE"). EXTRAORDINARY COURTS ARE DEFINED AS
COURTS THAT ARE IMPLEMENTED AD HOC FOR SPECIFIC CASES,
AFTER THE FACT, AND OUTSIDE OF THE GENERAL COMPETENCY RULES
FOR COURTS. IN GERMANY'S VIEW, SUCH COURTS ARE FORBIDDEN
UNDER THE 1949 GENEVA CONVENTION -- WHICH GERMANY NOTES THE

U.S. APPLIES TO AT LEAST THE TALIBAN DETAINEES -- AND UNDER
THE GERMAN CONSTITUTION. DESCH NOTED THAT THE U.S.-GERMAN
EXTRADITION TREATY FORBIDS TRIAL OF AN EXTRADITED PERSON BY
AN EXTRAORDINARY COURT IN THE REQUESTING STATE.

3. (SBU) DESCH SAID THE JUSTICE MINISTRY COULD POSSIBLY
PROVIDE OTHER LEGAL ASSISTANCE TO A MILITARY COMMISSION IF
THE U.S. PROVIDES THE CUSTOMARY ASSURANCES THE DEATH
PENALTY WILL NOT BE SOUGHT. DECISIONS WOULD BE MADE ON A
CASE-BY-CASE BASIS. EMBOFFS ARGUED THAT THE MILITARY
COMMISSIONS ARE JUSTIFIED BY THE U.S. CONSTITUTION AND LAW,
AND HAVE BEEN USED IN THE PAST. DESCH COUNTERED THAT
GERMAN LAW, BASED ON BITTER GERMAN EXPERIENCE WITH LEGAL
ABUSES, DOES SUPPORT SUCH COURTS. SO'SENSITIVE IS THIS
ISSUE THAT, DESCH CLAIMED, GERMANY ITSELF DOES NOT EVEN
HAVE A PROPER MILITARY JUSTICE CODE THAT CAN BE APPLIED TO
POWS.

THE COURTS HAVE THE FINAL SAY

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P 111057Z APR 02 FM AMEMBASSY BERLIN TO SECSTATE WASHDC PRIORITY 7290 ' INFO EU MEMBER STATES DEPT OF JUSTICE WASHDC SECDEF WASHDC NSC WASHDC USMISSION USNATO USMISSION USUN NEW YORK XMT AMEMBASSY BERLIN
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PAGE 02 BERLIN 01378 02 OF 02 111100Z TAGS: PTER, KJUS, GM

SUBJECT: JUSTICE MINISTRY VIEW ON LEGAL ASSISTANCE FOR U.S.
MILITARY COMMISSION CASES

DIFFERENT [THE LAST WORD IN BOLDFACE), AND THE REASON IS .

BECAUSE THE PRESIDENT RECOGNIZED THAT THERE HAD TO BE

DIFFERENCES TO DEAD WITH THE UNUSUAL SITUATION WE FACE".

ART. 84 PARA 1 OF THE THIRD GENEVA CONVENTION CONTAINS IN
ITS ESSENCE A BAN ON EXTRAORDINARY COURTS. THE GENERAL
APPLICABILITY OF THE THIRD GENEVA CONVENTION OF 1949 HAS
ALREADY BEEN OUTLINED. THE UNITED STATES ACKNOWLEDGES ITS
APPLICABILITY WITH REGARD TO TALIBAN FIGHTERS. ART. 84
PARA 1 OF THE THIRD GENEVA CONVENTION EXPLICITLY PRESCRIBES
MILITARY COURTS FOR TRYING PRISONERS OF WAR. HOWEVER, THIS
PROVISION SERVES MERELY AS PROTECTION FOR PRISONERS OF WAR,
AND IS NOT DESIGNED TO BE UNDERMINED EX POST FACTO BY AD-
HOC COURTS (GERMAN: "AD-HOC-SCHNELLGERICHTE"). THIS
FOLLOWS FROM THE FACT THAT PARA 1 IS SYSTEMICALLY CONNECTED
WITH PARA 2, WHICH OFFERS THE PRISONER THE ESSENTIAL
GUARANTEES OF THE COURT'S INDEPENDENCE AND IMPARTIALITY AS
GENERALLY RECOGNIZED, AS WELL AS A MINIMUM DEFENSE
STANDARD. ART. 84 OF THE THIRD GENEVA CONVENTION
ESTABLISHES CUSTOMARY INTERNATIONAL LAW IN THIS RESPECT.

' EXTRAORDINARY COURTS ARE NOT ALLOWED ACCORDING TO ARTICLE

101 PARA 1 SENTENCE 1 OF THE GERMAN CONSTITUTION.

FURTHERMORE, THE EXTRADITION RULES BETWEEN GERMANY AND THE

UNITED STATES DO NOT ALLOW AN EXTRADITED PERSON TO BE TRIED

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BY AN EXTRAORDINARY COURT.
-THE RULES ON PROCEDURE AND EVIDENCE, WHICH DEFENSE UNCLASSIFIED
PAGE 03 BERLIN 01378 02 OF 02 111100Z SECRETARY RUMSFELD ANNOUNCED ON MARCH 21, 2002, CONTAIN

SEVERAL POSITIVE SIGNALS REGARDING THE GUARANTEE OF A FAIR
TRIAL. THE PROOF OF GUILT BEYOND A REASONABLE DOUBT
MATCHES THE PROVISIONS THAT APPLY TO GENERAL U.S. CRIMINAL
COURTS. ALSO, A REVIEW PANEL WILL REVIEW THE TRIAL
FINDINGS WITHIN 30 DAYS WITH REGARD TO QUESTIONS OF THE

LAW. CIVILIAN JUDGE ADVOCATES MAY BE CALLED TO MILITARY

DUTY FOR A LIMITED TIME AND BE APPOINTED AS MEMBERS OF THE

COMMISSION. THE COMMISSION MAY IMPOSE THE DEATH PENALTY

ONLY UNANIMOUSLY.

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SNELL

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6502
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68