Jen Nessel, firstname.lastname@example.org
This decision did not question the torture allegations documented in the complaint, but was based on the grounds of alleged immunity despite many past and current cases that contradict those claims.
The organizations that filed the complaint were stunned by the prosecutor’s arguments and believe they will not stand up to appeal.
“This is a giant step backward from the movement toward accountability for heinous crimes which has characterized the development of international law since Nuremberg,” said CCR President Michael Ratner. “We find it particularly shocking that the dismissal of the complaint is based on the position of the French foreign ministry, which is headed by Bernard Kouchner, whose reputation is based to a large extent on his work in the field of human rights. His interpretation would confer permanent impunity from prosecution for war crimes and crimes against humanity not only on heads of state and foreign ministers, but, 'by extension', on all government officials representing their countries in trips abroad both during and after their term of office.”
Jean Claude Marin, Paris Prosecutor, stated in a letter that:
“The services of the [French] Ministry of Foreign Affairs indicated that in application of the rules of customary international law established by the International Court of Justice, immunity from criminal jurisdiction for Heads of State and Government and Ministers of Foreign Affairs continues to apply after termination of their functions, for acts carried out during their time of office and hence, as former Secretary of Defense, Mr. Rumsfeld, by extension should benefit from this same immunity for acts carried out in the exercise of his functions.”
According to attorneys in the case, former Secretary of Defense Rumsfeld, on a private visit to France, cannot be granted criminal immunity under conventional or customary international law. On the contrary it has been well established that, after leaving office, immunity from criminal jurisdiction cannot be applied to acts of such gravity, defined as crimes under international law, as illustrated by the statute of the International Criminal Court which does not uphold any immunity. In fact, acts of torture cannot seriously be considered part of anyone’s official functions.
The same principle has been applied to former Heads of State, as demonstrated in the case of General Augusto Pinochet, against whom no immunity was found following an order issued by a Belgian investigating judge, as well as in a decision of the United Kingdom’s House of Lords. Other examples include the case of former Chadian Head of State, Hissen Habre, against whom a trial for crimes of torture is scheduled to soon begin in Senegal.
This international jurisprudence should be very well known to Jean-Claude Marin, who signed an order himself calling for General Pinochet to appear before the Paris Court of Appeals.
CCR, FIDH, ECCHR, and LDH remain surprised at Marin’s change of position and have asked the magistrate to reconsider his decision.
Souhayr Belhassen, FIDH President, raised suspicions about the precedence given to the French Ministry of Foreign Affairs and what it says about the absolute priority given to the diplomatic relationships between states over justice and the rule of law: “This decision amounts to de facto impunity for all former executives responsible for international crimes and turns the French territory into a haven for torturers.”
The Center for Constitutional Rights is dedicated to advancing and protecting the rights guaranteed by the United States Constitution and the Universal Declaration of Human Rights. Founded in 1966 by attorneys who represented civil rights movements in the South, CCR is a non-profit legal and educational organization committed to the creative use of law as a positive force for social change.