Donald Rumsfeld lives in Illinois and the American Civil Liberties Union and Human Rights First issued civil proceedings to hold him to account for his responsibility for the torture inflicted on a number of his victims, including former detainees in Guantanamo.
Donald Rumsfeld asserted in the proceedings, successfully, that he was immune from being held responsible for the torture of the victims. He was successful because a US Federal judge agreed with his view of the applicability (or non-applicability) of the US Constitution and/or, international law, to the facts. He was not immune because he did not know, or could not reasonably have known of the torture; that issue was never reached. He was, he contended, immune because he was executing State policy.
Of course his submissions were on a very narrow point. The claim was in civil law and the victims were not US citizens.
Sgt Lawrence Hutchins found the results are different when the prosecution is criminal notwithstanding his victim was an Iraqi and the crime was committed in Iraq..
This suggests a double standard; many torture victims in US-controlled Iraq died as a consequence of their injuries. Why does Lawrence Hutchins not get the benefit of an asserted immunity if Donald is entitled to it?
That is, of course, the wrong question. The question is; why should Donald have an immunity if Lawrence Hutchins is not entitled to one?
The extra ingredient in a criminal prosecution is a prosecutor. For reasons of State there is no prosecution of Donald because there is no prosecutor.
What, however, if Donald goes on holiday?
In 1998, General Pinochet the former Chilean tyrant went to London for medical treatment. Judge Baltasar Garzon of Spain issued a warrant for his arrest and sent it to Interpol. It was backed by a London magistrate and Pinochet was arrested with a view to extradition to Spain.
The charge Pinochet was facing was torture. Spain, Britain and Chile were all signatories to and had ratified the UN Convention on Torture . The convention provides;
No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for torture.
The UK House of Lords confirmed the validity of the arrest of General Pinochet, identifying the breach of the UN Convention on Torture as the crime and recognising it as a valid ground for the Spanish and British judicial assumption of jurisdiction over him.
The House of Lords addressed the very point upon which Donald Rumsfeld successfully claimed to have an immunity The Lords found that it was State-backed torture that was the subject matter of the UN Convention on Torture. If Rumsfeld’s (and Pinochet’s) plea was correct it would mean the UN Convention on Torture was of no effect. Therefore, it could not be a defence to a charge of torture to plead State policy.
The USA, like Spain, Britain, Chile and many other countries has undertaken to comply with the UN Convention on Torture. The USA has subscribed to the Universal Declaration of Human Rights; Article 7 of the International Covenant on Civil and Political Rights; Article 5 (2) of the American Convention on Human Rights; Article 17 of Geneva Convention III ; Article 32 of Geneva Convention IV and Geneva Protocol I .
These all outlaw torture.
There is a connection between criminal and civil liability: one (criminal) implies the other (civil).
Donald, take your holidays in your back garden.