Peter Weiss [Vice President, Center for Constitutional Rights] and Jeanne Sulzer [lawyer, FIDH Legal Action Group]:
"On October 26, while Donald Rumsfeld was attending a conference in Paris, a war crimes complaint based on his authorization for and encouragement of torture was filed against him by FIDH (Paris), the Center for Constitutional Rights (New York), the European Center for Human and Constitutional Rights (Berlin) and the French Human Rights League. On November 16 the District prosecutor dismissed the complaint on the ground that he had been advised by the Ministry of Foreign Affairs that, "by extension" the ICJ judgment in Yerodia (Congo v. Belgium), which held Yerodia immune from prosecution for acts committed in his capacity as Congo's foreign minister, also applied to Rumsfeld.
This is an egregious and no doubt politically motivated misreading of the ICJ opinion for at lest two reasons:
(1) When Belgium issued its international arrest warrant for Yerodia, he was still Congo's foreign minister, while Rumsfeld no longer held any public office when he was sued in Paris. There is nothing in the ICJ opinion which holds that head of state or minister of foreign affairs immunity survives the term of office of the individual concerned. On the contrary, there is language which suggests the opposite.
(2) In Yerodia, immunity for a foreign minister was found to exist by extension of head of state immunity, based on the fact that foreign ministers represent their countries abroad and must be free to do so without impediment. A further extension of this immunity to defense ministers would logically lead to the granting of immunity to any high government official who travels abroad on business for his or her government. This would represent a giant step backward from the principle of universal accountability for grievous crimes which has become enshrined in international law as shown in the recent past for example in the cases of Pinochet, Hissene Habre and Fujimori.
An appeal has been filed with the General Prosecutor under article 40-3 of the French Code of Criminal Procedure."