On 29 November 2004, Wolfgang Kaleck - in collaboration with the Center for Constitutional Rights (CCR) in New York and three years before he would go on to co-found and become the general secretary of ECCHR - filed a criminal complaint in Germany on behalf of four Iraqi torture survivors and CCR. The complaint was directed against, among others, former Secretary of Defense Donald Rumsfeld, former CIA Director George Tenet and a number of high-ranking military personnel in relation to breaches of the UN Convention against Torture and the German Code of Crimes against International Law.

The basis of the complaint was the failure of the US authorities to investigate evident torture and criminal acts that took place in its prisons in Guantánamo Bay, Cuba, and Abu Ghraib, Iraq. On 10 February 2005, the German prosecuting authorities decided against initiating an investigation on the matter. The reason given for the decision was that investigations in Germany are only permitted if the competent state, either the state in which the criminal acts took place, the victim’s home state or the perpetrator’s home state, is unwilling or unable to carry out an investigation. On behalf of the victims and a number of human rights and civil society organizations, Kaleck lodged an appeal against the decision, which was rejected by the Stuttgart Court of Appeals on 13 September 2005.

On 14 November 2006, an expanded complaint against US officials was filed in Germany. Based on new evidence, the claim was directed against Donald Rumsfeld, George Tenet as well as other high-ranking government officials, including the government lawyers Alberto Gonzales, William Haynes, David Addington, John Yoo and Jay Bybee, and other members of the US Armed Forces. The complaint cited the fact that no investigations had yet been conducted in either the US or in Iraq, and was supported by a number of lawyers’ associations, human rights groups, civil society organizations, and scholarly experts.

Once again, the German prosecuting authorities rejected the request to initiate investigations. This time, the prosecution argued that the suspects did not reside, nor expect to reside, on German soil, thus creating an additional barrier to the initiation of legal proceedings against the US. The appeal, filed by Wolfgang Kaleck, requested the initiation of a legal inquiry based on the fact that investigations can take place even in the absence of the accused. According to this argument, the findings of the inquiry could be eventually taken into account in future proceedings in other states. On 21 April 2009 the Stuttgart Court of Appeals dismissed the appeal as inadmissible.

On 25 October 2007, four human rights organizations filed a criminal complaint in France against Donald Rumsfeld: the International Federation for Human Rights (FIDH), Ligue des droits de l’Homme (LDH), CCR, and the newly-founded ECCHR. Rumsfeld was in France on a private visit at the time.

Once again, the complaint concerned torture and inhumane treatment in the US military prisons of Guantánamo Bay and Abu Ghraib, and specifically the illegal interrogation techniques applied and approved in a memo personally signed by Rumsfeld. In February 2008, the French authorities came to a final decision not to arrest Rumsfeld or initiate an inquiry, referring to his alleged immunity as former Secretary of Defense.

ECCHR partner lawyer Gonzalo Boye filed a criminal complaint on 17 March 2009 in Spain against six former US officials of the Bush administration for having aided and abetted crimes of torture, cruel, inhuman or degrading treatment and grave breaches of the 1949 Geneva Conventions. The complaint detailed how the six officials paved the way for the systematic torture in Guantánamo and Iraq by seeking to provide legal justification for the use of torture methods.

In the proceedings, ECCHR represented German citizen Murat Kurnaz, who was detained and tortured in Guantánamo from 2002 to 2006. Although Spain was one of the earliest states to implement universal jurisdiction, a 2014 reform to the relevant Spanish law limited its applicability to the prosecution of international crimes only when one of the perpetrators is a Spanish citizen or resident. After six years of criminal investigations, Spain’s National Court therefore decided in July 2015 to close the investigations into US torture at Guantánamo.

Maher Arar, a Canadian citizen, was arrested and abducted by US officials in 2002 and brought to Syria. During his one-year detention in Syria he was imprisoned and tortured under inhumane and degrading conditions. After his return to Canada, a commission of inquiry established by the Canadian government brought the circumstances of his case to light. Arar sought compensation for his rendition to Syria by US officials before US courts. The lower courts dismissed the claim on the basis that state secrecy issues were at stake, allegedly threatening foreign relations and national security.

In association with the Bar of England and Wales Human Rights Committee, ECCHR filed an amicus curiae brief in March 2010 supporting CCR’s petition in Arar’s civil suit for compensation. The brief highlights that it is possible to open investigations and proceedings even where state secrecy may be affected, referencing a range of decisions by domestic European courts. Unfortunately, in June 2010 the US Supreme Court issued a decision refusing to review the case.

ECCHR and CCR prepared criminal complaints against former US President George W. Bush in Geneva for two victims of the post- 9/11 US torture program. The two 2,500-page complaints were supported by more than 50 organizations from around the world, as well as by Nobel Peace Prize winners Shirin Ebadi and Pérez Esquivel, and former UN Special Rapporteurs Theo van Boven and Leandro Despouy.

The evidence included documents concerning the torture program after 11 September 2001 with a particular focus on the liability of high-ranking American officials, including former President Bush. The possibility of immunity for former heads of state is precluded in the case of torture. In February 2011, Bush cancelled a public appearance in Geneva, with news reports suggesting the trip was called off due to fear of protests and the threat of criminal proceedings against him.

In February 2014, ECCHR and CCR submitted a dossier to the High Court of Paris analyzing the criminal liability of former Guantánamo commander Geoffrey Miller, who was then summoned as an “accused witness” to testify about his role in Guantánamo and answer questions regarding his oversight of the torture of three French nationals at the prison. Miller did not appear in court.

In October 2016, a second expert report was filed with the investigative judge of the High Court of Paris, this time on the criminal liability of William Haynes, the former General Counsel for the US Department of Defense during the George W. Bush administration. The 26-page document established that Haynes was a key contributor to, and architect of, the Bush administration’s interrogation and detention policies.

In November 2019, ECCHR and CCR submitted an expert opinion on the criminal liability of former US Secretary of Defense Donald Rumsfeld and demanded that he be summoned. In December 2019, the Paris Court of Appeals nevertheless decided to close the investigations, arguing state immunity for the US torture suspects and the lack of formal US cooperation in providing evidence and access to witnesses.

The German citizen Khaled El Masri was abducted by CIA officials at the Serbian-Macedonian border on 31 December 2003. The officials had mistakenly identified El Masri as a member of Al-Qaeda and a possible participant in a Neu-Ulm-based terrorist cell. Khaled El Masri spent nearly five months in a secret CIA detention center in Afghanistan. During this time, he was regularly interrogated, subjected to physical abuse, and humiliated. Eventually, the CIA brought him to Albania, where he was released on a roadside. He arrived back in Germany on 29 May 2004.

El Masri’s case is one of the best documented extraordinary renditions carried out by the CIA. The US Senate report on the CIA’s detention and interrogation program, a portion of which was made publicly available in December 2014, showed that the rendition of El Masri was by no means an exception, but part of a systematic rendition and torture program. Several inquiry commissions took up this case and a number of lawsuits were filed before different national and regional courts. Following the release of the US Senate report, ECCHR filed another criminal complaint to the German Federal Prosecutor in December 2014, which led to the opening of a monitoring procedure. In follow-up submissions in the following years, ECCHR submitted evidence and analysis of the relevant chains of command responsible for the US torture program within the CIA and the military, including identifying individuals involved in the torture program. The filings and analysis also informed the International Criminal Court’s Office of the Prosecutor in its preliminary examination into US war crimes in Afghanistan, which led to the opening of a formal investigation in 2020.

Musa Zemmouri was detained at the US military base in Guantánamo Bay from 2002 to 2005, where he was subjected to brutal beatings as well as sensory deprivation, exposure to extreme temperatures and other severe forms of physical and psychological abuse. In January 2017, the 15th anniversary of the arrival of the first detainees to Guantánamo Bay, ECCHR joined with partner lawyers Walter van Steenbrugge and Christophe Marchand in filing a complaint against Belgium before the UN Committee Against Torture in Geneva. The complaint argued that Belgian officials were complicit in Zemmouri’s abuse as they knew about the torture but failed to prevent it, and later failed to carry out adequate investigations into the crimes. In August 2019, the Committee found the complaint to be inadmissible, claiming that the case had already been sufficiently examined by the European Court of Human Rights, which in fact had not accepted the application, nor communicated why.

ECCHR filed a criminal complaint in June 2017 with the German Federal Public Prosecutor (Generalbundesanwalt) as part of the on-going monitoring procedure calling for investigations into Gina Haspel’s role in the torture of detainees in Thailand in 2002, at which time she was the Chief of Base of the CIA secret prison there known as “Cat’s Eye.” Previously classified information about Haspel’s role in the torture came to light when she was named CIA Deputy Director in February 2017, and again when she was appointed CIA Director in May 2018 by President Donald Trump. The submissions against Haspel (in June 2017 and September 2018) are follow-ups to the December 2014 complaint regarding El Masri and the US torture program filed by ECCHR in Germany.