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Chapter 11:
LAW AND JUSTICE
ALTHOUGH ONE COULD do no more than "deplore" a number of slaughtered
children, there was in existence means of preventing one particular
aspect of
the principle of expediency from doing too much damage. Most interna-
tional criminals were beyond the reach of man-made laws; Dimitrios
happened to be within reach of one law. He had committed at least two
murders and had therefore broken the law as surely as if he had been
starv-
ing and had stolen a loaf of bread.
--
Eric Ambler, The Mask of Dimitrios
As Henry Kissinger now understands, there are increasingly noticeable
rents and tears in the cloak of immunity that has shrouded him until
now.
Recent evolutions in national and international law have made his
position
an exposed and, indeed, a vulnerable one. For convenience, the distinct
areas of law may be grouped under four main headings:
1. International Human Rights Law. This comprises the grand and
sonorous covenants on the rights of the individual in relation to the
state; it also protects the individual from other actors in the interna-
tional community who might violate those rights. Following from the
French Revolution's "Declaration of the Rights of Man;' international
human-rights law holds that political associations are legitimate only
insofar as they preserve the dignity and well-being of individuals, a
view that challenges the realpolitik privilege given to the "national
inter-
est." The United States is directly associated with sponsoring many of
these covenants and has ratified several others.
2. The Law of Armed Conflict. Somewhat protean
and uneven, this rep-
resents the gradual emergence of a legal consensus on what is, and
what is
not, permissible during a state of war. It also comprises the various
humanitarian agreements that determine the customary "law of war" and
that attempt to reduce the oxymoronic element in this ancient debate.
3. International Criminal Law. This concerns any individual, including
an agent of any state, who commits direct and grave atrocities against
either his "own" citizens or those of another state; covered here are
genocide, crimes against humanity, and other crimes of war. The Rome
Statute, which also establishes an International Criminal Court for the
trial of individuals, including governmental offenders, is the codified
summa of this law as revised and updated since the Nuremberg prece-
dent. It commands the signatures of most governments as well as, since
31 December 2000, that of the United States.
4. Domestic Law and the Law of Civil Remedies. Most governments
have similar laws that govern crimes such as murder, kidnapping, and
larceny, and many of them treat any offender from any country as the
same. These laws in many cases permit a citizen of any country to seek
redress in the courts of the offender's "host" country or country of
cit-
izenship. In United States law, one particularly relevant statute is the
Alien Tort Claims Act.
The United States is the most generous in granting immunity to itself
and
partial immunity to its servants, and the most laggard in adhering to
inter-
national treaties (ratifying the Genocide Convention only in 1988 and
signing the Covenant on Civil and Political Rights only in 1992). And
the
provisions of the Rome Statute, which would expose Kissinger to dire
pun-
ishment if they had been law from as early as 1968, are not retroactive.
The
Nuremberg principles, however, were in that year announced by an
interna-
tional convention to have no statute of limitations. International
customary
law would allow any signatory country ( again exempting the United
States )
to bring suit against Kissinger for crimes against humanity in
Indochina.
More importantly, United States federal courts have been found able to
exercise jurisdiction over crimes such as assassination, kidnapping, and
terrorism, even when these are supposedly protected by the doctrine of
state or sovereign immunity. Of a number of landmark cases, the most
salient one is the finding of the DC Circuit Court in 1980, concerning
the
car-bomb murder, by Pinochet's agents, of Orlando Letelier and Ronni
Moffitt. The court held that "(w)hatever policy options may exist for a
foreign country;' the Pinochet regime "has no 'discretion' to perpetrate
conduct designed to result in the assassination of an individual or
indi-
viduals, action that is clearly contrary to the precepts of humanity as
recognized in both national and international law." Reciprocally
speaking,
this would apply to an American official seeking to assassinate a
Chilean.
Assassination was illegal both as a private and a public act when Henry
Kissinger was in power and when the attacks on General Schneider of
Chile and President Makarios of Cyprus took place.
As the Hinchey report to Congress in 2000 now demonstrates that US
government agents were knowingly party to acts of torture, murder, and
"disappearance" by Pinochet's death squads, Chilean citizens will be
able to
bring suit in America under the Alien Tort Claims Act, which grants US
federal courts "subject-matter jurisdiction" over a claim when a non-US
citizen sues for a civil wrong committed in violation of a US treaty or
other international law. Chilean relatives of the "disappeared" and of
General Schneider have recently expressed an interest in doing so, and 1
am
advised by several international lawyers that Henry Kissinger would
indeed
be liable under such proceedings.
The Alien Tort Claims Act would also permit victims in other countries,
such as Bangladesh or Cambodia, to seek damages from Kissinger, on the
model of the recent lawsuit held in New York against Li Peng, among the
Chinese Communist officials most accountable for the 1989 massacre in
Tiananmen Square.
A significant body of legal theory can be brought to bear on the
applica-
tion of "customary law" to the bombardment of civilians in Indochina.
The
Genocide Convention was not ratified by the United States until 1988. In
1951, however, it was declared by the International Court of Justice to
be cus-
tomary international law. The work of the International Law Commission
is
in full agreement with this view. There would be argument over whether
the
numberless victims were a "protected group" under existing law, and also
as to
whether their treatment was sufficiently indiscriminate, but such
argument
would place heavy burdens on the defense as well as the prosecution.*
An important recent development is the enforcement by third coun-
tries -notably Spain -of the international laws that bind all states.
Baltasar
Garz6n, the Spanish judge who initiated the successful prosecution of
General Pinochet, has also secured the detention in Mexico of the
Argentine
torturer Ricardo Miguel Cavallo, who is now held in prison awaiting
extra-
dition. The parliament of Belgium has recently empowered Belgian courts
to
exercise jurisdiction over war crimes and breaches of the Geneva
Convention
committed anywhere in the world by a citizen of any country. This
practice,
which is on the increase, has at minimum the effect of limiting the
ability of
certain people to travel or to avoid extradition. The Netherlands,
Switzerland,
Denmark, and Germany have all recently employed the Geneva Conventions
to prosecute war criminals for actions committed against non-nationals
by
non-nationals. The British House of Lords decision in the matter of
Pinochet
has also decisively negated the defense of "sovereign immunity" for acts
committed by a government or by those following a government's orders.
This has led in turn to Pinochet's prosecution in his own country.
There remains the question of American law. Kissinger himself admits
(see page 105) that he knowingly broke the law in continuing to supply
American weapons to Indonesia, which in turn used them to violate the
neu-
trality of a neighboring territory and to perpetrate gross crimes
against
humanity. Kissinger also faces legal trouble over his part in the ethnic
cleans-
ing of the British colonial island of Diego Garcia in the early 1970s,
when
indigenous inhabitants were displaced to make room for a United States
mil-
itary base. Lawyers for the Chagos Islanders have already won a judgment
in
the British courts on this matter, which now moves to a hearing in the
United
States. The torts cited are "forced relocation, torture, and genocide."
In this altered climate, the United States faces an interesting dilemma.
At
any moment, one of its most famous citizens may be found liable for ter-
rorist actions under the Alien Tort Claims Act, or may be subject to an
international request for extradition, or may be arrested if he travels
to a
foreign country, or may be cited for crimes against humanity by a court
in
an allied nation. The non-adherence by the United States to certain
treaties
and its reluctance to extradite make it improbable that American
authori-
ties would cooperate with such actions, though this would gravely
undermine the righteousness with which Washington addresses other
nations on the subject of human rights. There is also the option of
bring-
ing Kissinger to justice in an American court with an American
prosecutor.
Again the contingency seems a fantastically remote one, but, again, the
failure to do so would expose the country to a much more obvious charge
of double standards than would have been apparent even two years ago.
The burden therefore rests with the American legal community and
with the American human-rights lobbies and non-governmental organi-
zations. They can either persist in averting their gaze from the
egregious
impunity enjoyed by a notorious war criminal and lawbreaker, or they can
become seized by the exalted standards to which they continually hold
everyone else. The current state of suspended animation, however, cannot
last. If the courts and lawyers of this country will not do their duty,
we shall
watch as the victims and survivors of this man pursue justice and
vindica-
tion in their own dignified and painstaking way, and at their own
expense,
and we shall be put to shame.
_______________
* See especially Nicole Barrett: "Holding Individual Leaders Responsible
for Violations of
Customary International Law;' Columbia Human Rights Law Review, Spring
2001.
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