¹ See 5 German Law Jouranl No. 5 (1 May 2004), at http://www.germanlawjournal.com.Google Scholar

² Cf. the extensive discussion of V. Zöller, Liberty dies by Inches: German Counter-Terrorism Measures and Human Rights, 5 German L.J. No. 5 (1 May 2004), at http://www.germanlawjournal.com.Google Scholar

³ See here the many contributions at the conference on terrorism organised by the Max Planck Institute for Comparative Foreign and Public International Law, Heidelberg: http//edoc.mpil.de/conference-on-terror/index.cfm. The Institute for International Law of Peace and Armed Conflict, Ruhr-University of Bochum also organised two conferences on this in the Hague – the first dealt with “Reflections on the War in Iraq,” held on 27-28 July 2003; the second was on “The Information Requirements for the Exercise of the Right to Self-Defence in International Law,” held on 28-29 November 2003.Google Scholar

⁴ Cf. President Bush's speech to the House of Congress on 21 September 2001 – full text translated and reprinted in the Frankfurter Allgemeine Zeitung (abbr. FAZ), 22 September 2001 at 8. The tenor of the speech was that everybody who was not for the Americans was regarded to be against them.Google Scholar

⁵ A State that has been attacked by an armed terrorist group harboured by a host state is justified to exercise its right of self-defence in terms of art. 51 of the United Nations Charter (SC Res.1368). For a more details see the discussion at D.III infra.Google Scholar

⁶ The full text of the address under www.whitehouse.gov/news/releases/2002/01/20020129-11.html. Former Bush speechwriter, David Frum explained his rationale for creating the phrase “axis of evil” in his book, see David Frumm, The Right Man: The Surprise Presidency of George W. Bush (2003). Due to an email circulated by his wife, bragging about the phrase coined by her husband, the speechwriter subsequently resigned (or had to). The phrase indeed caused quite a stir. The Economist 2 Frebruary 2002 at 13 referred to it as a “brave but hazardous course for American foreign policy‥ That Frum is a Canadian Jew need not be of further interest, were it not for the fact that the coining of this phrase probably stems from the trauma caused to Jews by the holocaust. Healing from such trauma has to be respected. It cannot be rushed and may transcend generations. What makes it difficult to deal with in legal terms is the instrumentalisation of such trauma in a new crisis to get back at an old enemy. See also note 7 infra.Google Scholar

⁷ During the heated phase whether to attack or not to attack Iraq, US Defence Secretary Rumsfeld referred France and Germany as “old Europe” and testified to congress that “three or four countries” have indicated they wouldn't participate in military action in Iraq or post-war rebuilding thereof. “I believe Libya, Cuba and Germany are ones that have indicated they won't help in any respect,” he said. Coupling Germany with Libya and Cuba was regarded to go beyond a mere breach of good manners, especially as the reference to the Axis powers seemed to have been dug out again to bully Germany into toeing the line.Google Scholar

⁸ See, e.g., The Case for War, Economist 3 August 2002 at 11, 20-22; Vulnerable but pre-emptive America, Economist 1 July 2002 at 23; Wielders of mass deception? Economist 4 October 2003 at 13, 24-26; also Der endlose Blitzkrieg. Wie die USA die Welt belogen, einen Tyrannen besiegten und nun in einem Guerilla-Krieg stecken, Der Spiegel 21 July 2003 at 102-138.Google Scholar

⁹ As Sir Jeremy Greenstock, Britain's permanent representative at the UN from 1998-2003, and its special representative for Iraq from 2003-2004 recently explained so poignantly, the UK joined forces with the USA “because the damage to world diplomacy if America went solo was too awful to contemplate”. Cf. What must be done now, Economist 8 May 2004 at 24.Google Scholar

¹⁰ For more details, see CIA hatte Hinweis auf Attentäter des 11. September“, FAZ 25 February 2004 at 1 and 7. In the mean time, the US Congress has launched an inquiry into the matter. A former FBI translator for Persian and Turkish, Sibel Edmonds, has given evidence to the effect that she translated documents during the first part of 2001 (spring and summer) from which it was transparent that Al Qaida soon planned an attack on prominent US targets with aeroplanes. The Bush Administration apparently tried to obtain an interdict against the 33 year old translator to prevent her testimony to be considered by Congress in terms of the inquiry it launched. Cf. C.I.A. Chief Defends Handling of Hijacker Data, New York Times, 25 February 2004. Nafeez Ahmed, Geheimsache 09/11 – Hintergründe über den 11. September und die Logik amerikanischer Machtpolitik, 204 ff. (2003) analyses the role of the US secret services under the theme of structural incompetence or political blockade.Google Scholar

¹¹ See, e.g., Robert Kagan, Power and Weakness, 113 Policy Review June 2002 available at www.policyreview.org/JUN02/kagan.html). Kagan, a senior associate at the Carnegie Endowment for International Peace, tirelessly publishes books and articles on the theme of America's “power” – in clear text: military power – and Europe's “weakness”. Consequently, the role of Europeans has been reduced to that of “peace-keeping forces” after the US has “stabilized” a region decisively with military force. In short, the US is “making the dinner” and the Europeans are “doing the dishes.”Google Scholar

¹² A recent Pew Research Centre poll indicates that 80% of Germans believe that a country needs UN approval first before using force, whereas only 41% of Americans believed this to be necessary. Cf. A Year After Iraq War – Mistrust of America in Europe even higher, Muslim Anger Persists, Report released by the Centre on 16.3.04 in Washington, available at http://people-press.org/reports.Google Scholar

¹³ § 261 Strafprozeßordnung (abbr. StPO) or Criminal Procedure Act determines that: “The court comes to a verdict, taking into consideration all evidence put before the court.” The Commentary of Meyer-Goßner on criminal law interprets the standard of evidence in § 261 StPO to mean “keine vernünftige Zweifel”, which for all practical purposes corresponds to the Anglo-Saxon standard of “beyond reasonable doubt”.Google Scholar

¹⁴ § 129a Strafgesetzbuch (abbr. StGB) or Penal Code.Google Scholar

¹⁵ § 129b StGB.Google Scholar

¹⁶ See, e.g., note 34 infra.Google Scholar

¹⁷ The accused had been charged in terms of § 211 (murder) and § 224(1) no. 2-5 (serious injury) read with § 22 (attempt); § 27(1) and (2) (aiding and abetting), § 49 (mitigating factors) and § 52 (unity of act, coincidence) of the Penal Code or Strafgesetzbuch (abbr. StGB).Google Scholar

¹⁸ In terms of § 129a No. 1 and 3 StGB.Google Scholar

¹⁹ OLG Hamburg, Case 2 BJs 88/01 2St E 4/02-5 of the 3^rd Penal Senate, available at http://www.jurawelt.de/gerichtsurteile/8919.Google Scholar

²⁰ See the Guidelines Regulating Letters Rogatory in Criminal Matters between the USA and Germany – http://www.justiz.nrw.de/RB/justizverwaltungsv/ir_online/index.html. The document also lists diverse bilateral treaties. The new bilateral treaty concluded on 14.10.2003 has not yet been promulgated by Parliament.Google Scholar

²¹ In short, § 96 StPO stipulates that the presentation of documents or other official written material by authorities may not be required for court proceedings, when such an authority declares that the publicising of the contents of such material is not in the interest of the Federal Republic or would cause harm to a German Land.Google Scholar

²² E.g. in dubio pro reo – § 244 StPO.Google Scholar

²³ Cf. note 20 supra.Google Scholar

²⁴ § 54 and § 161 StPO read with § 96 StPO (dealing with legitimate state interests to keep specific information secret).Google Scholar

²⁵ Cf. Operation Heiliger Dienstag, Der Spiegel, 27 October 2003 at 120-135.Google Scholar

²⁶ This has been broadcasted in an interview given by the two of them to the TV station Al Dschasira shortly before they were arrested. See Der Spiegel 27 October 2003 at 121; also Yosri Fouda & Nick Fielding, Masterminds of Terror (2003).Google Scholar

²⁷ Originally they conceived of the idea to hijack 10 planes, five on the east coast and five on the west coast of America, flying them all into major targets. The co-ordination of such a gigantic project proved a bit too risky. Finally they settled for four hijacks.Google Scholar

²⁸ It appears that newly the Attorney-General has refused to submit three memoranda to Congress, which apparently sanctioned interrogation methods that are forbidden in terms of US law and international law as falling within the scope of torture. Cf. Sanchez billigte 32 Verhörmethoden, FAZ 14 October 2004 at 6.Google Scholar

²⁹ § 112(I) 1 StPO. For more details with regard to the BGH's argument on criminal procedure, see its decision of 19.12.2003, StB 21/03 (2St E 5/03-5) – the text of the decision is available under www.bundesgerichtshof.de.Google Scholar

³⁰ U. Rippert, Verdict due in German terror trial – Justice at the behest of the secret services, 5 February 2004, available at http://www.wsws.org/articles/2004/feb2004/mazo-f05.shtml.Google Scholar

³¹ The attorney for the co-plaintiffs, Schulz afterwards scathingly remarked that “Germany is a country with full comprehensive insurance for terrorists”. This remark appears to be rather misplaced and directed at the wrong address. The Counter Terrorism Committee established by the Security Council after September 11 did not criticise Germany of not satisfactorily fulfilling any of its core obligations in terms of international counter-terrorism measures to be taken. Cf. Zöller note 2 supra, at part 1, par. [15].Google Scholar

³² § 136a StPO prohibits “mistreatment, exhaustion, physical intervention, administration of substances, torture, deception or hypnosis'” of witnesses. The United States have acknowledged more than once they were using stress and duress techniques for questioning Al Qaida suspects.Google Scholar

³³ A brief synopsis of the judgement has been posted by two lawyers, who attended the hearing on the website of Jurawelt, available at www.jurawelt.com/anwaelte/8812.Google Scholar

³⁴ It has not been clarified who sent the anonymous BKA fax to the Court. It is possible that Attorney-General Ashcroft and the German Minister of the Interior, Schily, who were in constant close contact during the trial, were no longer interested in securing Mzoudi's conviction. This would mean Mzoudi disappearing for years inside the German prison system, outside the reach of the American security apparatus. Just before the planned judgment was pronounced, the press reported plans to immediately deport Mzoudi to Morocco in a lightening action following his acquittal. There it would have been easy for the CIA to lay their hands on him, since his extradition to the US following an acquittal would not have been possible under German law. Apparently Schily had previously reached an agreement with the interior senator of Hamburg about what should happen to Mzoudi. A lawyer, who represented victims of the September 11 attacks, had already procured the plane tickets. It would not be the first time that Schily collaborated with Ashcroft via “expedited official channels” in order to hand over terrorist suspects – against whom the German justice system was unable to prove any punishable offence – to the American security apparatus. Zammar, a Syrian with a German passport living in Hamburg, is a case in point. Zammar was suspected of being Atta's contact man to Bin Laden. Legally, however, nothing could be proved against him. When he requested a new German passport in November 2001, in order to travel to Syria, German authorities are believed to have informed the CIA. Zammar was arrested at the airport when he arrived. Since then, he has been held at Far-Falastin prison near Damascus, where he has been interrogated and tortured. Mzoudi's lawyers reacted with an application for asylum, which should make a rush deportation more difficult. Cf. U. Rippert, note 30 supra.Google Scholar

³⁵ §§ 337, 338 StPO regulate the review powers of the Court.Google Scholar

³⁶ BGH decision of 4.3.2004, 3 StR 218/03, available at www.recht-in.de/urteile/master.php; a synopsis was published in 17 NJW at 1259-1263 (2004), cited as NJW. See also the discussion of C. Safferling, Terror and Law – Is the German Legal System able to deal with Terrorism? – The BGH decision in the Case against El Motassadeq, German L.J. Vol. 5 No. 5 – 1 May 2004.Google Scholar

³⁷ § 244(3)-(5) StPO.Google Scholar

³⁸ §§ 54, 96 and 261 StPO read with art. 6 (1) and (3) (d) of the European Convention on Human Rights – NJW at 1259.Google Scholar

³⁹ NJW at 1260.Google Scholar

⁴⁰ Art. 20(3) Grundgesetz (abbr. GG) read with art. 2 (1) GG; also art. 6 (1) of the European Convention on Human Rights – see NJW at 1261.Google Scholar

⁴¹ Art. 103 (1) GG.Google Scholar

⁴² BVerfGE 57, 250 at 274f.Google Scholar

⁴³ In terms of § 54 StPO.Google Scholar

⁴⁴ BGH, NJW 2000 at 1661; BVerfGE 101, 106, reprinted in NJW 200, 1175; also BVerGE 74, 358 at 360.Google Scholar

⁴⁵ NJW at 1262.Google Scholar

⁴⁶ NJW at 1263.Google Scholar

⁴⁷ OLG decision of 7 April 2004, Case No. 2 BJs 88/01-5 2 StE 4/02-5, available at www.jurion.de/index_frame.html?/de/right/Rechtsprechung/040407_motassadeq.html.Google Scholar

⁴⁸ The prosecution presented a letter to the Court, which Bahaji wrote to his mother, dated 26 April 2002. Bahaji explained the background to the September 11 attacks and stated that Motassadeq was not involved. In a telephone conversation with his wife, who lives in Hamburg, Bahaji said that he was also definitely not involved in the plot. He himself decided to lie low since an international warrant of arrest has been issued for him. It is possible that he wrote the letter to exonerate not only himself but also Motassadeq, who was convicted shortly before. Cf. FAZ 6 April 2004 at 2; and Nachrichten aus dem Untergrund, Der Spiegel, 5 April 2004 at 21.Google Scholar

⁴⁹ Cf. note 10 supra.Google Scholar

⁵⁰ See the evaluation of the BKA Meckenheim in the matter of USA vs Zacarias Moussaoui, cited by Oliver Schröm, Al Qaida – Akteure, Strukturen, Attentate, 134 f. and note 7 at 199 (2003), cited as Schröm.Google Scholar

⁵¹ He applied for asylum on 27.9.1995 in Schleswig-Holstein, saying he came by ship – cf. Schröm 131.Google Scholar

⁵² Schröm 96 ff.; P. Bergen, Holy War Inc. (2001).Google Scholar

⁵³ See the Report of the Minister of the Interior for 2003 on terrorist advances in Germany, available at http://www.verfassungsschutz.de/de/publikationen/verfassungsschutzbericht/vsbericht_2003; also Bin Ladens Glaubenskrieger in Deutschland, Der Spiegel 22. March 2004 at 24-38.Google Scholar

⁵⁴ Gericht: Kaplan darf abgeschoben werden, FAZ 27 May 2004 at 1; Güle, Güle, FAZ 27 May 2004 at 1.Google Scholar

⁵⁵ Europe has substantial Muslim minorities, numbering around 17 million. France has the biggest Muslim minority but even in Germany there are some 3 million Muslims.Google Scholar

⁵⁶ Part of the problem with regard to the spread of radical Islamist fundamentalism is a shortage of domestically trained clerics to lead congregations of European-born Muslims. A substantial number of foreign imams do not have any knowledge of the country where they go to preach and often do not speak the language of the land. The issue has become more pressing as the fundamentalist clerics provided inspiration and support for Islamists returning from Afghanistan and Eastern Europe jihads. They have also helped prepare fresh recruits from among Europe's frustrated, disenfranchised second-generation immigrant youths now rediscovering their religious roots. A solution might be to support programmes to train clerics locally, but as various Muslim Councils have pointed out, they need state aid. However, in France any government support of such a programme faces huge obstacles because of laws strictly prohibiting the state from meddling in religion. Cf. France Struggles to Curb Extremist Muslim Clerics, New York Times, 30 April 2004. Germany, again, faces the tricky balance of its own anti-Semitic history and keeping the trust of Jews. Currently Germany has the fastest growing Jewish community in the world – see FAZ 29 April 2004 at 1. At the same time Islamist hate-preachers are fanning anti-Semitism in an unacceptable manner. How to curb the effects of this to safeguard the democratic order is no easy balancing act.Google Scholar

⁵⁷ For a comparison, see L. Blaauw, The Rechtsstaat idea compared with the rule of law as a paradigm for protecting rights, South African L. J. at 76 ff. (1990); generally P. Kunig, Das Rechtsstaatprinzip (1986).Google Scholar

⁵⁸ Montreal 23.9.1971, 10 ILM (1971) 1151 – the USA ratified this Convention and it entered into force on 26.1.1973.Google Scholar

⁵⁹ New York15.12.1997 (another source states: 9.1.1998), 37 ILM (1998) 249. The USA ratified this Convention on 26.6.2002 and it entered into force on 26.7.2002.Google Scholar

⁶⁰ Martha Minow, Between Vengeance and Forgiveness – Facing History after Genocide and Mass Violence (1998).Google Scholar

⁶¹ Prodi, Romano, President of the EU Commission, has been severely criticized by Americans for his view that the use of force is not the way to resolve a conflict with terrorists: Bush: Wir lassen uns nicht einschüchtern, report in FAZ 17 March 2004 at 8.Google Scholar

⁶² According to Anne-Marie Slaughter, President of the American Society for International Law, a major deficit of anti-terror initiatives was that they often lack well orchestrated co-ordination and transparency. This has been illustrated well by the hearings before the US Congress: The CIA and FBI did not join forces effectively and information passed on by foreign secret services has been brushed over – Cf. FAZ 23 February 2004 at 8. See also note 10 supra with regard to data collected by the FBI preceding the attacks.Google Scholar

⁶³ Cf. The Wielders of Mass Deception, Economist 4 October 2003 at 13 f.Google Scholar

⁶⁴ On attribution of and liability for international terrorism see Joachim Wolf, Die Haftung der Staaten für Privatpersonen nach Völkerrecht, 428-454 (1997); and Noelle Quenivet, The Attribution of Activities of Networks of Terrorists, address delivered at the conference on “The Information Requirements for the Exercise of the Right to Self-Defence in International Law” organised by the Institute for International Law of Peace and Armed Conflict, 28-29 November 2003, The Haque (forthcoming).Google Scholar

⁶⁵ But see the excellent discussion of C. Walter, Defining Terrorism in National and International Law, at http//edoc.mpil.de/conference-on-terrorism/index.cfm.Google Scholar

⁶⁶ Bergen, P., note 52 supra.Google Scholar

⁶⁷ See, e.g. the War Manuals of the US on psychological warfare and how this was invoked – available at www.fortliberty.org/militarylibrary/information-warfare.shtml; also Joachim Wolf, Media Sponsored Violence, address delivered at the conference on “The Information Requirements for the Exercise of the Right to Self-Defence in International Law”, organised by the Institute for International Law of Peace and Armed Conflict, 28-29 November 2003, The Haque (forthcoming) where he explores the consequences of the role played by the mass media in psychological warfare for international law.Google Scholar

⁶⁸ Cf. Walter Laqueur, Krieg dem Westen, Terrorismus im 21. Jahrhundert (2003).Google Scholar

⁶⁹ See Tariq Ali, Fundamentalismus im Kampf um die Weltordnung – Die Krisenherde unserer Zeit und ihre historischen Wurzeln (2002).Google Scholar

⁷⁰ The US provided them with weapons and logistics. Through a network of about 150 NGOs for development aid and taking care of political refugees, money was channelled from Saudi-Arabia, Kuweit and the US into backing the Mudschaheddin. They even founded and a university – Dawa al-Jihad (Assembly of the Holy War) – where volunteers for the war were trained in “engineering” (i.e. how to construct and assemble landmines and explosives). For more details, see Schröm 82 ff.; see also Jean-Charles Brisard & Guillaume Dasquié, The Forbidden Truth: U.S.-Taliban Secret Oil Diplomacy, Saudi Arabia and the Failed Search for bin Laden (2001) 23 ff, 31 f, 35, 41, 94-109 (cited as Brisard) where he discusses the US's financial inputs that furthered bin Laden, but first and foremost was the result of their own ambitions in that region. Brisard is a leading French intelligence expert and investigative journalist, who has presented well-researched evidence, contextualising the US energy-based foreign policy and the Bush administration's fighting of international terrorism. Much of the research is based on information presented by John O'Neill, formerly in charge of the FBI's counter-terrorism work who left the FBI in August 2001 because he was frustrated by the laxness of the current administration to award a high priority to fighting international terrorism. He became the chief of security for the WTC and died nine days later.Google Scholar

⁷¹ Cf. Schröm at 84-87.Google Scholar

⁷² Schröm at 88-90 discusses Bin Laden's time in Sudan where he took up connections with other Muslim extremist groups in order for them to join forces.Google Scholar

⁷³ The Deputy Minister of Foreign Affairs, Talbott travelled personally to Islamabad on 1 February 1999 to meet with the Taliban as de facto regime and to hand over the US extradition order for Bin Laden.Google Scholar

⁷⁴ There are three possible routes for these pipelines: through Iran – an illusion; otherwise through Afghanistan and Pakistan; or through Iraq and Turkey. Iraq itself has enormous oil reserves (an estimated 250 billion barrel) – a fact that gains in dimension considering the feeble reasons presented to justify the Iraq war. Cf. Der Treibstoff des Krieges, Der Spiegel, 13 January 2003, 95 at 96.Google Scholar

⁷⁵ See Brisard at 43-48.Google Scholar

⁷⁶ The current US Vice-President was running Halliburn, the world's biggest the oil services firm. Condoleeza Rice, now the national security advisor, served as an oil-company consultant on Central Asia as member on the board of directors of Unocal. She also served as the principal expert on Kazakhstan for the oil Corporation Chevron that holds the largest concession of any of the international oil companies there. Commerce Secretary Donald Evans and Cathleen Cooper, Under Secretary of Commerce for Economic Affairs also have oil connections. See Brisard at 60 f.Google Scholar

⁷⁷ Four days after the Bush administration took over Vice-President Cheney called together an informal organisation, the Energy Policy Task Force. The lack of transparency of the Task Force's goals prompted the General Accounting Office of Congress to rebuke them for it. See Something of a Secret Society, Washington Post, 4 April 2001; also Brisard 60 ff.Google Scholar

⁷⁸ That Unocal, a division of Chevron, of which Condoleeza Rice was the CEO for years, was the company wanting to build the pipeline, casts a different light on the foreign policy of the current US administration. In Crude Politics: How Bush's Oil Cronies Hijacked the War on Terrorism (2003), Paul Sperry presents alarming evidence that the Bush administration resumed talks with Pakistani officials over gas and oil pipelines in Afghanistan while the United States was still reeling from the horror of September 11. With regard to the Iraq war, see also Treibstoff des Krieges, Der Spiegel, 13 January 2003 at 94-108Google Scholar

⁷⁹ Martin, P., Unocal Advisor Named Representative to Afghanistan, Centre for Globalisation, available at http://www.globalresearch.ca/articles/MAR201B.html, report from 29 February 2002. For an overview of top members of the US administration's involvement in the pipeline, see http://www.cooperativeresearch.org/timeline.jsp?timeline=complete_911_timeline&theme=oil.Google Scholar

⁸⁰ See the reports of the Guatanamo Bay Britons that has been released, notes 94 and 101 infra. Nafeez Ahmed, Geheimsache 09/11 – Hintergründe über den 11. September und die Logik amerikanischer Machtpolitik, 269 ff. (2003) analyses reports by The Wall Steet Journal to the effect that the Carlyle Group, in which both Bush Sr. and the Saudi-Arabian family of bin Laden are major shareholders, has made a profit of about 1,3 billion US $ from the recent war in Afghanistan.Google Scholar

⁸¹ According to a recent study done by the Pew Research Centre, the credibility of America has been severely damaged as a result of the 2003 Iraq war and the way in which America has chosen to fight international terrorism. In predominantly Muslim nations surveyed, anger towards the US remains pervasive and a majority doubt the sincerity of the war on terrorism. Cf. A Year After Iraq War – Mistrust of America in Europe even higher, Muslim Anger Persists, Report released by the Centre on 16 March 2004 in Washington, available at http://people-press.org/reports.Google Scholar

⁸² According to the latest information, Al Qaida is logistically still able to launch similar attacks like the one of September 11. The International Institute for Strategic Studies in London revealed that the Iraq war mobilised many young Muslims for the jihad again. The Institute estimates that Al Qaida not only still have a well-functioning top commanding structure but also potentially again some 18.000 recruits – FAZ 26 May 2004 at 1.Google Scholar

⁸³ Cf. Der erste große Schlag in Europa? FAZ 16 March 2004 at 3; Neue Qualität des Terrors, FAZ 15 March 2004 at 1-3; Richtungwechsel in Spanien, also Die Wahl nach dem Terror, FAZ 16 March 2004 at 1; Die Folgen, FAZ 17 March 2004 at 1.Google Scholar

⁸⁴ Fernando Reinares, Terrorismo global/Global Terrorism (2003). Apparently he also looked at the Arabic mystical numerical system to make projections regarding future terrorist attacks by Al Qaida. See the FAZ 22 April 2004 at 31 in this regard.Google Scholar

⁸⁵ One of the main proponents of Al Qaida, Abu Musab al Zarqawi shortly before warned the Iraqi Shiites that they will take revenge if they co-operate with the Americans. More than 140 Shiites were killed and many wounded in the attack of 2 March 2004. Cf. FAZ 3 March 2004 at 1 and 3.Google Scholar

⁸⁶ Provisorische Verfassung für den Iraq unterzeichnet, FAZ 9 March 2004 at 1.Google Scholar

⁸⁷ According to a recent opinion poll done by the Pew Research Centre, Americans at that stage had a far different view of the war's impact than do people in the other surveyed countries. Generally, Americans thought the war helped in the fight against terrorism, illustrated the power of the U.S. military, and revealed America to be trustworthy and supportive of democracy around the world – Cf. A Year After Iraq War – Mistrust of America in Europe even higher, Muslim Anger Persists, Report released by the Centre on 16 March 2004 in Washington, available at http://people-press.org/reports.Google Scholar

⁸⁸ This has been the gist of recent study by the Centre de l'Homme in Libanon, done under the auspices of Theodor Hanf, Professor at the University of Freiburg, Germany (sponsored by Unesco and the Libanese government). Cf. Demokratie aus Notwendigkeit – Recherchen zur politischen Kultur in der arabischen Welt, Neue Züricher Zeitung, 29 January 2004 at 35. See also the in-depth analysis of reform forces to establish an Islamic democracy in Iran – Die iranische Halbdiktatur, FAZ 25 February 2004 at 1.Google Scholar

⁸⁹ The legacy of Iraq is typical for the solutions the peacemakers came up with in the aftermath of World War I after the Ottoman Empire's disintegration when they vainly carved up the Ottoman Empire and the colonies of the losers. Cf. Margaret MacMillan, Paris 1919: Six Months that Changed the World (2003).Google Scholar

⁹⁰ Hermann, R., Nicht der Islam allein – auch andere Faktoren bestimmen das Verhältnis der Muslime zur Demokratie, FAZ 29 April 2004 at 10, reporting on the first congress on Islamic democracy held in Istanbul and sponsored by the UN Development Programme and National Democratic Institute for International Affairs.Google Scholar

⁹¹ Cf. Is torture ever justified? Economist, 11 January 2003 at 11; and R. Poscher, Menschenwürde als Tabu, FAZ 2 June 2004 at 8. Both articles vigorously argued that torture is an absolute no go area and that the human dignity of others, and especially prisoners of war, has to be respected.Google Scholar

⁹² Cf. FAZ 3 May 2004 at 1 and 5; also Ends, Means and Barbarity, Economist 11 January 2003 at 20 ff. Detainees in Afghanistan already reported that the temperature in cells were raised to a tropical 38°C and then suddenly dropped to −12°C for so long until they broke down and “confessed”, Der Spiegel 27 October 2003 at 135.Google Scholar

⁹³ See http://web.amnesty.org/pages/usa-190803-action-eng – BBC TV Newsnight, 5 June 2003. Sayed Abbasin, arrested for being a taxi driver in the wrong place at the wrong time, is now attempting to rebuild his life in Afghanistan after a year in US custody. His friend and fellow taxi driver, Wazir Mohammed, remains in Camp Delta, having been transferred there more than a year ago, in effect, apparently, for having sought information on Sayed Abbasin's whereabouts.Google Scholar

⁹⁴ The troops of the Nothern Alliance forced prisoners into lorry containers and locked them in, so that people started to suffocate. British Guatanamo Bay prisoners that have been set free in the mean time, described how only 20 of 300 prisoners in each container lived, and then only because someone made holes in its side with a machine gun – an action which killed even more prisoners. Cf. Revealed: the full story of the Guantanamo Britons, The Observer (Sunday) 14 March 2004 (http://observer.guardian.co.uk/uk_news/story/0,6903,1168976,00.html).Google Scholar

⁹⁵ Secretary of Defence Rumsfeld has rejected concern about the Guantanamo Bay prisoners as “based on the shrill hyperventilation of a few people who didn't know what they were talking about” – Interview with Sunday Times (UK). Department of Defence News Transcript, 21 March 2002. For more details, see http://web.amnesty.org/library/Index/ENGAMR511642003. Only after the disgusting Abu Ghraib torture pictures have been released and spread over the front pages of all Western newspapers in May 2004, the Pentagon finally started to investigate the matter after Congress prompted them to do so – Cf. FAZ 11 May 2004 at 2 and 3.Google Scholar

⁹⁶ See the full page analysis of the Director of the Max Planck Institute for International Law in the FAZ – R. Wolfrum, Genfer Recht und Bagdader Realität, FAZ 28 May 2004 at 8.Google Scholar

⁹⁷ Art. 4A No. 1 of the Third Geneva Convention. Militia have to be treated like ordinary soldiers, affording them prisoner of war status too (art. 4A No. 2).Google Scholar

⁹⁸ Arts. 14, 17 of the Third Geneva Convention.Google Scholar

⁹⁹ Arts. 27 and 31 of the Fourth Geneva Convention.Google Scholar

¹⁰⁰ Cf. http://web.amnesty.org/pages/guantanamobay-index-eng. Amnesty International has expressed concern about the tribunals that will lack independence and will restrict the right of defendants to choose their own counsel for an effective defence. The tribunals will also accept a lower standard of evidence than in ordinary courts. This could include evidence extracted under torture or coercion.Google Scholar

¹⁰¹ Cf. http://web.amnesty.org/library/Index/ENGAMR511642003 for Amnesty International's Report. The first prisoners, transferred from Afghanistan on 20-hour flights in conditions of sensory deprivation and heavy use of restraints, arrived in Guantanamo Bay on 11 January 2002. A photograph released by the Pentagon at this time has become an icon of unacceptable US exceptionalism. It shows detainees in orange jumpsuits, kneeling before US soldiers, shackled, handcuffed, and wearing blacked-out goggles over their eyes and masks over their mouths and noses. The detainees face severe psychological distress and there have been numerous suicide attempts. The Guautanamo Britons that have been released after 26 months of interrogation because they were falsely identified by the Americans as having been pictured in a video tape of a meeting in Afghanistan between Bin Laden and Atta, reported that prisoners are held in tiny cells in solitary confinement 24-hours a day, with a military police officer permanently stationed outside each cell door at the secret super-maximum security facility outside the main part of Guantanamo's Camp Delta known as Camp Echo. Military officials have confirmed that they may be interrogated for up to 15 hours a day and that sleep deprivation was not uncommon. Some detainees were interrogated 200 times.Google Scholar

¹⁰² For a detailed report see e.g. Crime and Punishment, Economist 8 May 2004 at 41 f.Google Scholar

¹⁰³ Wolfowitz gesteht Verstöße gegen die Genfer Konvention ein, FAZ 15 May 2004 at 1.Google Scholar

¹⁰⁴ Cf. Resign Rumsfeld – Responsibility for Errors and Indiscipline needs to be taken at the Top, Economist 8 May 2004 at 11.Google Scholar

¹⁰⁵ Even so, this is more of a psychological argument. In terms of article 17 of the Rome Statute of the International Criminal Court and the principle of subsidiarity, such cases should be investigated and prosecuted by a State, which has jurisdiction over it. The ICC only tries cases where a State is unwilling or genuinely unable to carry out the investigation or prosecution. Cf. Rome Statute, adopted 17 July 1998, 37 I.L.M. 999 (1998).Google Scholar

¹⁰⁶ Selbstanklage, Amerikas, Die Zeit 13 May 2004 at 1.Google Scholar

¹⁰⁷ Heading in the wrong direction, Economist 8 March 2003 at 14.Google Scholar

¹⁰⁸ Nur die Sonne war Zeuge, FAZ 20 April 2004 at 33.Google Scholar

¹⁰⁹ The lawyer for Padilla, who has been detained in terms of the Patriot Act for over two years, has finally succeeded to lodge a habeas corpus petition before the Supreme Court on behalf of his client – see Rumsfeld v Padilla, details available at www.supremecourtus.gov (docket no. 03-1027). See also Hamdi v. Rumsfeld, available at www.supremecourtus.gov (docket no. 03-6696).Google Scholar

¹¹⁰ See the brief synopsis by L Greenhouse, The Imperial Presidency and the Constraints of the Law, New York Times 18 April 2004 (www.nytimes.com/2004/04/18/weekinreview).Google Scholar

¹¹¹ Lord Steyn described the military tribunal for trying the detainees as a “kangaroo court”. The term, he said, implied “a pre-ordained arbitrary rush to judgment by an irregular tribunal which makes a mockery of justice”. Cf. Law lord castigates US justice – Guantanamo Bay detainees facing trial by ‘kangaroo court', report by Clare Dyer, legal correspondent, The Guardian 26 November 2003.Google Scholar

¹¹² Rasul v. Bush and Al Odah v. United States: The cases deal with whether federal courts have jurisdiction over the detention of non-citizens held at the naval base at Guantanamo Bay, Cuba. Cf. www.supremecourtus.gov (docket no. 03-334 and 03-343).Google Scholar

¹¹³ Häftlinge in Gautanamo dürfen vor Gerichten klagen, FAZ 29 June 2004 at 1; Anwälte und Opposition begrüßen Gautanamo-Urteil, FAZ 30 June 2004 at 1 and 2.Google Scholar

¹¹⁴ See, note 109 supra; also FAZ 29 June 2004 at 1.Google Scholar

¹¹⁵ bilden, Staatliche Netzwerke, FAZ 23 February 2004 at 8.Google Scholar

¹¹⁶ See the discussion under D II.Google Scholar

¹¹⁷ Verdammenswert und gottlos – Beunruhigende Fragen: Kardinäle nehmen Stellung zur Folter, FAZ 28 May 2004 at 12.Google Scholar

¹¹⁸ Eberhard Horst, Friedrich der Staufer (1976).Google Scholar