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November 24, 2007

Rumsfeld Has Immunity, Says the French

In October, a group of U.S. and European human rights organizations brought a legal complaint against Former Secretary of Defense Donald Rumsfeld accusing him of responsibility for torture at Abu Ghraib and Guantanamo Bay. The complaint was brought to prosecutors during Rumsfeld's visit to France under their universal jurisdiction statute for torture, which required that the suspect be on French soil at the time of the complaint. This week, prosecutors threw out the suit.

The FIDH [one of the organizations] said it had received a letter from the prosecutors' office ruling that Rumsfeld benefited from a "customary" immunity from prosecution granted to heads of state and government and foreign ministers, even after they left office.

It said in a statement it was "astonished at such a mistaken argument" and said customary immunity from prosecution did not exist under international law.

The FIDH is flat wrong. Many rules of customary international law protect states and their officials from interference by foreign courts. In this instance, the customary international law protecting Rumsfeld is called immunity ratione materiae. It protects government officials for acts committed in their official capacities. Such immunity continues even when the official has left office.

The reason for the rule is that individuals should not be prosecuted in foreign countries for acts which are fairly attributable to the state. That would too easily lead to a political game whereby government officials face retaliation for the way they choose to run their countries. Most courts are not interested in being used in that manner and so customary rules have developed to prevent it. Similarly, most governments are not too keen on being on the wrong end of such gameplaying so they also discourage it.

In this case, even if Rumsfeld actually ordered torture or merely allowed it to happen, the administration of the prisons and the development of interrogation policy are undoubtedly acts of state. More than that, these acts are completely within the scope of the Secretary of Defense's official duties. The French prosecutors correctly note that customary international law requires them to dismiss the suit.

This is the third time European governments have dismissed torture suits against Rumsfeld. In 2004 and 2006, suits by the FIDH were dismissed by German prosecutors because the lawsuits did not meet the requirements of Germany's universal jurisdiction statute. Now France. It's funny; the Left keeps insisting that we've alienated and angered our allies in Europe.

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posted by Gabriel Malor at 12:39 AM

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