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Print This PageClaim Against Rumsfeld Dismissed… Because of Immunity?
According to Reuters, prosecutors in Paris have dismissed a claim against Donald Rumsfeld for the abuses at Abu Ghraib:
The Paris prosecutors’ office has dismissed a suit against Donald Rumsfeld accusing the former U.S. defense secretary of torture, human rights groups who brought the case said on Friday.The plaintiffs, who included the French-based International Federation of Human Rights Leagues (FIDH) and the U.S. Center for Constitutional Rights (CCR), said Rumsfeld had authorized interrogation techniques that led to rights abuses.
The FIDH 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.
I normally wouldn’t post about this kind of claim, because whatever its merits — and I have little doubt that Rumsfeld committed numerous war crimes while he was Secretary of Defense — I think that the political costs of using universal jurisdiction to prosecute American officials, however well intentioned or justified, are simply too high. Belgium is a case in point: the international backlash against its attempts to prosecute Ariel Sharon — led, ironically enough, by Rumsfeld himself — ultimately led the Belgian Parliament to repeal its landmark universal jurisdiction law.
That said, there is no question that Rumsfeld is not entitled to immunity from prosecution for acts of torture. However unsettled the law of immunity might be, it is at least clear that functional immunity — immunity ratione materiae — does not preclude a government official from being prosecuted for serious international crimes. The House of Lords specifically held in Pinochet #3 that Pinochet was not immune from prosecution for acts of torture, and Robert Cryer, Hakan Friman, and Daryl Robinson have pointed out — in their excellent new book An Introduction to International Criminal Law and Procedure — that “out of all the international crimes cases that have been conducted to date, most of the defendants were acting on behalf of a State and yet not one has successfully pleaded functional immunity for international crimes.”
There are, in short, sound reasons not to pursue torture charges against Rumsfeld. But immunity isn’t one of them.
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I thought this quote would be pertinent:
“Furthermore, at the individual level, that is, that of criminal liability, it would seem that one of the consequences of the jus cogens character bestowed by the international community upon the prohibition of torture is that every State is entitled to investigate, prosecute and punish or extradite individuals accused of torture, who are present in a territory under its jurisdiction. . . . This legal basis for States’ universal jurisdiction over torture bears out and strengthens the legal foundation for such jurisdiction found by other courts in the inherently universal character of the crime. It has been held that international crimes being universally condemned wherever they occur, every State has the right to prosecute and punish the authors of such crimes.”
This is from Prosecutor v. Furundzija (App. Chamber, Int’l Crim. Tribunal for the Former Yugoslavia, 2002).
at 4:19 am EST SpadesKnight
Well, I’m not sure that it is as clear as you make out. As lamentable as it was, the ICJ’s decision in the Arrest Warrant Case is still an obstacle. As you’ll recall, The Court found that, in the absence of a State waiver, former officials may only be tried by foreign national courts in respect of acts committed prior to taking, or subsequent to leaving, office, or acts committed while in office so long as such acts were committed in a private capacity. I acknowledge that there is much literature critical of this decision, but nonetheless, that’s the law as stated by the ICJ.
at 7:41 am EST D23
Correct me if I’m wrong, but I thought the problem in the Yerodia case was that the arrest warrant had been issued, Interpol notifed, etc., while Yerodia was still the foreign minister. Therefore the warrant was void ab initio, and the fact that Yerodia had been reassigned and later left cabinet did not make the arrest warrant valid.
at 10:34 am EST sarahlboyd
That’s true, but it didn’t stop the Court from pronouncing, albeit obiter, on the scope of immunity ratione materiae (para 61).
at 10:54 am EST D23
D23,
Unfortunately, the problem with the Court’s judgment in Congo v. Belgium is precisely in that it doesn’t methodologically distinguish between immunities ratione personae (immunities by virtue of a person’s status as head of state, foreign minister, or diplomat on a mission) and immunities ratione materiae, or functional immunities. This was well noted, for instance, by Antonio Cassese in 13 EJIL 877 (2002). That in itself makes the Court’s dictum problematic.
at 11:48 am EST Marko Milanovic
So, Rumsfeld is probably guilty. Of “numerous war crimes.” But he should not be prosecuted. But we shouldn’t say he’s immune. He ought simply to be treated as if he were immune. Because there are “sound reasons.”
at 11:56 am EST Stiv Bators
Kevin,
I agree that Mr Rumsfeld almost certainly is not immune from charges of international crimes. There is, of course, ample authority for this view. The line begins with the IMTs at Nuremberg and Tokyo (Annual Digest 13 (1946), pp. 203, 221, and Annual Digest 15 (1948), pp. 356, 362, respectively; immunity was relevant there on the view that the IMTs were not exercising the criminal jurisdiction of Germany or Japan, respectively), and quite possibly ends with the pronouncements of the ICTY in Milosevic (paras. 27-34) and Kunarac (para. 494). Antonio Cassese’s article, cited above by Marko Milanovic, gives many more examples. Indeed, the ICTY in Blaskic (para. 41) treated the exception so very briefly that it must have regarded the rule as quite firmly established. I would subscribe to that without hesitation.
But, as things stand, I would have to disagree with your citation of R v. Bow Street Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 3) [2000] 1 AC 147 as support for this limitation of immunity ratione materiae. Certainly, there were endorsements of this limitation in some of their Lordships’ judgments, and the case was very widely understood as applying that rule, even occasionally as establishing it. But the limitation sadly did not appear in all of the speeches, and where it did appear, it wasn’t necessarily regarded as dispositive of the issue. Indeed, the House has subsequently clarified as much: Jones v. Ministry of the Interior of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) [2006] UKHL 26, [2007] 1 AC 270, concerned a claim in tort against the Kingdom and against some officers of the Ministry, for acts of torture allegedly committed by the latter. The appellants understandably relied on Pinochet (both House of Lords judgments in that case) as establishing that acts of torture are not acts of state, in the sense of attracting immunity ratione materiae. They were successful in the Court of Appeal ([2004] EWCA Civ 1394, [2005] QB 699), but the House disagreed. The only two reasoned speeches in Jones were delivered by Lord Bingham of Cornhill and Lord Hoffmann; the other three members of the Appellate Committee agreed with both speeches. Lord Hoffmann, in particular, examined the Pinochet litigation at some length. He explained, with regard to Pinochet (No. 3), that the real ratio of the decision was that the Convention against Torture constituted a waiver of immunity for (criminal) charges of torture (paras. 89-94 of Jones). It seems to me that that was always the correct reading of Pinochet (No. 3) (as opposed to a correct reading of the law), and Jones, of course, makes this the only valid reading of the case for purposes of English law. (So even if one were minded to take a different view of Pinochet (No. 3), it would no longer be state practice as disclosing the current state of English law.)
R v. Bow Street Stipendiary Magistrate, ex p. Pinochet Ugarte (No. 1) [2000] 1 AC 61 may come closer to supporting your point. The central reasoning of that case is fairly encapsulated in this bit from the speech of Lord Nicholls of Birkenhead: ‘torture of his own subjects, or of aliens, would not be regarded by international law as a function of a head of state.’
There are two difficulties here, one relating to English law (and hence, the continued relevance of the case as state practice), and a more general one.
The first point to be made is that Pinochet (No. 1) has been vacated by
Pinochet (No. 2)(In re Pinochet [2000] 1 AC 119, and superseded by Pinochet (No. 3). Lord Bingham in Jones (at para. 19) therefore doubted its value as precedent.The second point concerns the meaning of Pinochet (No. 1). In this respect, Lord Hoffmann in Jones explained (again, I think, correctly) that Lord Nicholls’ observation was directed at the terminology of s. 20 of the State Immunity Act 1978, which on his Lordship’s interpretation conferred immunity in respect of ‘functions which international law recognises as functions of a head of state’ (the statutory regime was rather complicated). They did not go to (customary) immunity ratione materiae. (See paras. 86-88 of Jones.)
[I have, incidentally, mentioned this before, in a comment to a post by John Bellinger, and in a post of my own]
I suspect that Jones has not been given the attention it deserves in international legal circles. It reveals the unfortunate limitations of the Pinochet judgments, and Pinochet therefore probably should now be read with Jones.
On the other hand, Jones detracts from a truth that did not come out in Pinochet, namely that international crimes are acts of state, but do not attract immunity on that account. That, I would have thought, is the true meaning of the authorities I mentioned in the first paragraph above; this view, of course, has the benefit of avoiding any confusion with the issue of attributability in the law of state responsibility. Mind you, that question was sidelined in Jones only for the reason that the ‘rule of no immunity’ was limited to the criminal context, but even that is somewhat doubtful, given the way the matter is expressed in the criminal authorities. So maybe it is a good thing that Jones hasn’t been given anything like the reception that Pinochet received at the time.
It is perhaps ironic that Pinochet spawned a great deal of judicial authority and academic teaching to the effect that there can be no immunity ratione materiae in respect of international crimes. Although it did not actually say so itself, it certainly has resurrected the Nuremberg exception. (But only if that exception had ever died.)
at 8:34 am EST Tobias Thienel
[I didn't mean to strike out Pinochet (No. 2) there; it should only have been italicized. Also, the sentence 'So even if one were minded to take a different view of Pinochet (No. 3), it would no longer be state practice as disclosing the current state of English law' may be a bit difficult to follow. What I meant to say was that Jones determines what the meaning of Pinochet is for the purposes of English law as state practice.]
Just a few words on the Arrest Warrant case: I think that can’t be used one way or the other in the present context. The Court expressly distinguished Pinochet on the basis that it didn’t concern an incumbent head of state. That might be taken as an approval of Pinochet.
But when it mentioned immunity ratione materiae (obiter, as part of its ‘immunity does not equal impunity’ point), it did not refer to any exception for international crimes (only one for international courts, which is also not without its problems).
Maybe there was some disagreement within the Court? I suppose we’ll find out when Certain Criminal Proceedings in France (Republic of the Congo v. France) is decided.
at 8:47 am EST Tobias Thienel
Tobias, you mention that the law on the relationship between functional immunity and international crimes is clear with reference to what has been said by the ICTY (Milosevic; Kunarac; Blaskic) and the IMTs. However, the scope of functional immunity before international courts and domestic courts need not be the same. The principle that one sovereign state does not adjudicate on the conduct of another state, which underlies functional immunity, is not applicable with respect to an international court. Therefore, one can understand why functional immunity does not apply before international courts in respect of international crimes. However, the situation for domestic courts is different, and one has to be wary in how one interprets what those international courts have said about functional immunity. Also, cannot the French prosecutor’s decision be regarded as evidence of French state practice - ie that France adheres to the position as set out in the obiter dictum of the ICJ in the Arrest Warrant Case? I stand by my initial comments that the current legal position of functional immunity for international crimes is unclear in domestic courts. I think one is being overly optimistic in believing that the position is beyond dispute…
at 3:37 pm EST D23
Not strictly on the exact point but in the neighborhood:
“We must make clear to the Germans that the wrong for which their fallen leaders are on trial is not that they lost the war, but that they started it. And we must not allow ourselves to be drawn into a trial of the causes of the war, for our position is that no grievances or policies will justify resort to aggressive war. It is utterly renounced and condemned as an instrument of policy.” Supreme Court Justice Robert L. Jackson, U.S. Representative to the International Conference on Military Trials, August 12, 1945
at 6:25 pm EST steve laudig
D23,
I don’t think the ICTY can be invoked in support of our rule for what it actually does, largely for the reasons you have given. Indeed, if I may add to those reasons, Article 7(2) of the ICTY Statute may be explained on the basis of the Security Council’s Chapter VII powers. I also think, however, that the ICTY is fairly good authority (Article 38(1)(d) of the ICJ Statute) for what it has said in rationalising Article 7(2) other than on the basis of the reasons you and I just mentioned. It has, of course, explained Article 7(2) by referring to customary international law, including the Pinochet case.
[Of course, such reliance on Pinochet was largely mistaken, but by no means unusual]
Also, there is, of course, considerable domestic authority for our rule, even other than Pinochet. I have mentioned that only by reference to Prof Cassese’s article. I now quote his list from pp. 870-1 of his article:
‘Eichmann in Israel, Barbie in France, Kappler and Priebke in Italy, Rauter, Albrecht and Bouterse in the Netherlands, Kesserling before a British Military Court sitting in Venice and von Lewinski (called von Manstein) before a British Military Court in Hamburg, Pinochet in the UK, Yamashita in the US, Buhler before the Supreme National Tribunal of Poland, Pinochet and Scilingo in Spain, Miguel Cavallo in Mexico.’
I don’t think Arrest Warrant is a huge problem. It might still be explained away on the grounds that its statement was not only obiter, but also brief in the extreme. Also, the fact that the Court even mentioned Pinochet might be seen as some form of endorsement of that case - I am not too sure about that myself, but others are. At any rate, the Court declined to pass negative comment on Pinochet.
By way of example, it may be notable that the House of Lords in Jones only referred to Arrest Warrant for what it actually decided (immunity ratione personae was absolute), but paid absolutely no attention to the obiter dictum on immunity ratione materiae we are now talking about, even though that had some relevance to the issue before the House. (See Jones, paras. 20, 24, 48-49, 60.)
If Certain Criminal Proceedings in France addresses this whole question (which I think it does), it will obviously be of the highest importance. If it comes down against limited immunity, the whole ‘fragmentation of IL’ debate will probably come up again. I reckon the Court may wish to avoid that.
Certainly, few things are ever ‘beyond dispute’, and particularly not in the factual sense of no-one actually disputing a proposition. The question we are currently addressing definitely is not. That may be why France consented to the jurisdiction of the Court by way of forum prorogatum; it could obviously have chosen not to (another reported reason was that the President wanted to restrain his activist judges by allowing the ICJ to rule against them - this relates to the universal jurisdiction aspect of the case).
But however that may be, I don’t think the existence of the Eichmann/Pinochet (call it what you will) exception can be rightly disputed.
at 6:32 pm EST Tobias Thienel