Open Letter to the French Minister of Justice in the Rumsfeld Torture Case

Human Rights Groups Say There Is No Immunity for Torture - The Case Against Donald Rumsfeld Must Be Opened

The International Federation for Human Rights (FIDH), its member organizations in the United States, the Center for Constitutional Rights (CCR) and in France, the « Ligue française des droits de l’Homme et du Citoyen » (LDH), as well as the European Center for Constitutional and Human Rights (ECCHR), today sent an open letter to France’s Minister of Justice, Madame Rachida Dati. In it, the organizations request that she intervene with the Public Prosecutor of the Paris Appeals Court and ask him to withdraw his decision of February 27, 2008 granting former U.S. Secretary of Defense Donald Rumsfeld immunity from criminal jurisdiction for acts of torture. The letter was also sent to Mr. Bernard Kouchner, France’s Minister of Foreign Affairs.

On October 25, 2007, the plaintiff organizations filed a complaint before the Paris District Prosecutor against Rumsfeld on the occasion of a private visit in Paris. The complaint alleged that Rumsfeld, in violation of the Convention against Torture, ratified by France and implemented in French legislation, is responsible for having directly and personally crafted and ordered the use of "harsh" interrogation techniques constituting torture. The complaint, accompanied by several hundred pages of evidence, also alleges that such techniques were implemented under his supervision, notably at Guantánamo and Abu Ghraib, and that, starting in 2002, Rumsfeld personally managed several torture sessions of terrorist suspects.

The Paris Prosecutor dismissed the complaint and granted Rumsfeld immunity, purportedly basing his decision on an opinion drafted by the French Ministry of Foreign Affairs. The plaintiffs had, without success, contested the dismissal of the complaint before the Public Prosecutor, a higher authority.

The open letter addressed to Justice Minister Dati demonstrates in particular that the prosecutors’ opinion fails to articulate any valid legal justification for the personal immunity of Rumsfeld, a former Secretary of Defense; that it ignores the principle that there is no immunity for international core crimes such as torture; and alleges that by granting immunity to former officials for such crimes, the decision contravenes the very purpose of the French legislation implementing the provisions of the Convention against Torture.

The letter states that in his decision, the Public Prosecutor referred to – and misinterpreted – the International Court of Justice’s 2002 "Yerodia Case," which recognized the immunity of a Minister of Foreign Affairs and only for his time in office. Yet, Rumsfeld is a former Secretary of Defense, who was on a private visit in France.

When asked to explain how the current position could be reconciled with the Paris Prosecutor’s previous request for the extradition of former President Augusto Pinochet, the Public Prosecutor replied, incredibly, that the allegation of torture against Rumsfeld could not be "dissociated from his official function," in contrast to the case for Pinochet, who was accused of serious crimes like murder and kidnapping.

But as the signatories state in the letter, under French and international law, "it is well-established that personal immunity of former officials only extends to ‘official acts’ accomplished while in office, and not to international crimes, which cannot be seriously considered official acts."

The letter to Madame Rachida Dati further states that this unsupported extension of immunity "could confer permanent impunity from prosecution for international crimes not only to Heads of State and Foreign Ministers, but, by extension, to all government ministers both during and after their term of office."

This immunity could amount to giving de facto impunity for all former high-level executives responsible for international crimes and turns the French territory into a haven for torturers. Its only objective is to give priority to the diplomatic and political relationships between states over justice and the rule of law.

It is "to avoid an application ‘à la carte’ of the fight against impunity" that the plaintiffs organizations have chosen now to refer the matter to France’s Minister.

The Open Letter is available on the FIDH website.

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