Indicting Henry Kissinger: The Response of Raphael Lemkin
Steven L. Jacobs
Salient facts regarding Raphael Lemkin
Raphael Lemkin was born in 1900 in the Polish village of Bezwodene, a rural farming area in eastern Poland. His family were themselves farmers whose relationship with their non-Jewish neighbors was reasonably harmonious, due, quite possibly, to their minority status and distance from the larger centers of Jewish life (notably Warsaw, which housed more than 50 per cent of all Polish Jews, and was home to the largest aggregate of both religious and secular Jews in the country). His own experiences growing up were relatively normal, as he wrote in his autobiography, Unofficial Man: The Autobiography of Raphael Lemkin (Totten and Jacobs, 2002).
Early in his adolescence, however, Lemkin ‘discovered’ the book Quo Vadis by the 1905 Polish Nobel laureate, Henryk Sienkiewicz (1846–1916), which tells the horrific story of the Roman Emperor Nero’s near-genocidal treatment of the early Christians (54–68 AD) (Sienkiewicz, 1993). As Lemkin himself relates the tale, upon reading it he asked his mother why the Christians did not turn to the police for help. His mother responded by asking why he naively expected such help to be provided – a comment perhaps more accurately describing the reality of Jewish life in Poland than life in ancient Rome. Lemkin continues:
I started to read about other attempts to destroy national, religious, and racial groups. Soon I understood that something more is required than the assistance of local police to stop this evil for which I have later coined the name ‘Genocide.’ The cases of Genocide in history caught my imagination. My thinking was so intense that I have been almost seeing the events with my own eyes. I saw the French King, Charles XII, who enjoyed from the balcony of the royal castle the execution of the Huguenots and ordered more light to be thrown on their faces so they can better see the tortures. I saw the Catholics of 17th-century Japan being compelled to drink water, after which all openings of their bodies were cemented and heavy loads put upon their bodies until they exploded. I saw the Moslems of Spain crowded half-naked on the decks of boats under the murderous African sun, buying from the sailors the right to sit in the shade so that their miserable existence can be prolonged before their bodies are thrown into the sea. And I heard the screaming of Jews in pogroms, when their stomachs have been opened and filled with feathers, and tied with ropes.
I identified myself more and more with the sufferings of victims, whose numbers grew, and I continued my study of history. I understood that the function of memory is not only to register past events, but to stimulate human conscience. Soon contemporary examples of Genocide followed, such as the slaughter of the Armenians. It became clear to me that the diversity of nations, religious groups and races is essential to civilization because every one of these groups has a mission to fulfill and a contribution to make in terms of culture. To destroy these groups is to oppose the will of the Creator and to disturb the spiritual harmony of mankind. I decided to become a lawyer and work for the outlawing of Genocide and for its prevention through the cooperation of nations which must be made to understand that an attack on one of them is an attack on all of them.
My mature years I have devoted to this work. (Jacobs, 2002)
Further developing this early aptitude for law, Lemkin studied at the universities of Lwow, Poland, and Heidelberg, Germany, as well as in France. By 1927, he had become the Secretary of the Polish Court of Appeals in Warsaw, while still maintaining a private legal practice. From 1927 until 1935, he served as the Secretary of the Committee on the Codification of the Laws of the Polish Republic.
In 1933, Lemkin planned to attend the meeting of the League of Nations in Madrid, to present a proposal outlawing the twin crimes of ‘vandalism’ (for him, the destruction not only of property but of culture) and ‘barbarism’ (the destruction of persons). Though his material was sent on ahead, Lemkin himself was prevented from attending the meeting at the last moment, because his superiors viewed his intentions as a ‘Jewish agenda item’ – a reflection of the anti-Semitic editorials which had begun appearing in the leading newspaper, the Warsaw Gazette, directed toward him and his proposal.
With the outbreak of World War II, Lemkin joined the Polish underground, finally escaping to the United States in 1941. During the war years, he taught law first at Duke University and later at Yale University, served as an advisor to both the War Department and the Board of Economic Warfare, and later advised Supreme Court Justice Robert H. Jackson at the International Military Tribunal in Nuremberg, Germany. Prior to this last service, he published what is ostensibly his magnum opus, Axis Rule in Occupied Europe: Laws of Occupation, Analysis of Government, Proposals for Redress (Lemkin, 1944).
When the war ended, Lemkin continued his academic work, but increasingly devoted himself to lobbying for the passage of a genocide resolution by the nascent United Nations.1 With the help of then-president of the General Assembly, Herbert V. Evatt of Australia, and due to Lemkin’s relentless letter-writing campaign, articles, speeches, and drafting of documents, the ‘Genocide Convention,’ as it is now popularly called, was passed in December 1948. Lemkin would then devote the remaining eleven years of his life seeking unsuccessfully to secure the Convention’s passage and ratification by the United States (LeBlanc, 1991). Lemkin died in 1959 – alone, financially strapped, mourned by very few, and saddened by the failure of his beloved adopted country to ratify the Convention after the initial support offered it by then-President Harry S. Truman.
Salient facts about Axis Rule in Occupied Europe
Other than Axis Rule in Occupied Europe, Lemkin’s own efforts to secure publication of his several book-length manuscripts met with failure. The reason repeatedly given for such rejections was both a lack of interest in the topic itself and the absence of a large enough audience to make publication economically viable.2 Axis Rule in Occupied Europe thus remains his masterwork. It is a massive tome of 674 pages, divided into three parts: I, German Techniques of Occupation; II, The Occupied Countries; and III, Laws of Occupation: Statutes, Decrees, and Other Documents. Of greatest relevance here is Chapter 9, ‘Genocide,’ which is discussed in detail below. In the preface to the volume, Lemkin draws his readers’ attention to this central concept:
The practice of extermination of nations and ethnic groups as carried out by the invaders is called by the author ‘genocide,’ a term deriving from the Greek word genos (tribe, race) and the Latin cide (by way of analogy, see homicide, fratricide) and is treated in a chapter under the same name…. Genocide is effected through a synchronized attack on different aspects of life of the captive peoples: in the political field (by destroying institutions of self-government, a German pattern of administration, and through colonization by Germans); in the social field (by disrupting the social cohesion of the nation involved and killing or removing elements such as the intelligentsia, which provide spiritual leadership – according to Hitler’s statement in Mein Kampf, ‘the greatest of spirits can be liquidated if its bearer is beaten to death with a rubber truncheon’); in the cultural field (by prohibiting or destroying cultural institutions and cultural activities; by substituting vocational education for education in the liberal arts, in order to prevent humanistic thinking); in the economic field (by shifting the wealth to Germans and by prohibiting the exercise of trades and occupations by people who do not promote Germanism ‘without reservations’); in the biological field (by a policy of depopulation and by promoting procreation by Germans in the occupied countries); in the field of physical existence (by introducing a starvation rationing system for non-Germans and by mass killings, mainly of Jews, Poles, Slovenes, and Russians); in the religious field (by interfering with the activities of the Church, which in many countries provides not only spiritual but also national leadership); in the field of morality (by attempts to create an atmosphere of moral debasement through promoting pornographic publications and motion pictures, and the excessive consumption of alcohol). (Lemkin, 1944: xi-xii)
In the chapter on ‘Genocide,’ Lemkin defends his deployment of ‘A New Term and New Conception for Destruction of Nations’:
By ‘genocide’ we mean the destruction of a nation or of an ethnic group…. Generally speaking, genocide does not necessarily mean the immediate destruction of a nation, except when accomplished by mass killings of all members of a nation. It is intended rather to signify a coordinated plan of different actions aiming at the destruction of essential foundations of the life of national groups, with the aim of annihilating the groups themselves. The objectives of such a plan would be disintegration of the political and social institutions of culture, language, national feelings, religion, and the economic existence of national groups, and the destruction of the personal security, liberty, health, dignity, and even the lives of the individuals belonging to such groups. Genocide is directed against the national group as an entity, and the actions involved are directed against individuals, not in their individual capacity, but as members of the national group…. Genocide has two phases: one, destruction of the national pattern of the oppressed group; the other the imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the oppressed population which is allowed to remain, or upon the territory alone, after removal of the population and the colonization of the area by the oppressor’s own nationals. (Lemkin, 1944: 79)3
He then proceeds to explore ‘Techniques of Genocide in Various Fields’ (82–90): Political, Social, Cultural, Economic, Physical (Racial Discrimination in Feeding, Endangering of Health, Mass Killings), Religious, and Moral. He concludes the chapter with his ‘Recommendations for the Future,’ calling for ‘an international multilateral treaty’ to provide ‘for the introduction, not only in the constitution but also in the criminal code of each country, of provisions protecting minority groups from oppression because of their nationhood, religion, or race. Each criminal code should have provisions inflicting penalties for genocide practice,’ with the perpetrator of such genocidal crimes ‘liable to trial not only in the country in which he committed the crime, but also, in the event of his escape therefrom, in any other country in which he might have taken refuge’ (Lemkin, 1944: 93–4).
The remainder of this chapter will explore the application of Lemkin’s theoretical and juridical framework to the case of Henry Kissinger. We first present the ‘indictment’ of Kissinger offered by Christopher Hitchens (Hitchens, 2001a, 2001b, 2001c), and then consider what Lemkin’s response might have been to the evidence amassed against the former US diplomat.
Indicting Henry Kissinger
The charges leveled at Henry Kissinger in Hitchens’s book (and the twopart series in Harper’s magazine that gave rise to it) can be summarized as follows:
•Vietnam Political chicanery resulting in the unnecessary deaths of both military and civilian personnel, American and Vietnamese.
•Chile Complicity in the assassinations of Army General René Schneider, President Salvador Allende, and diplomat Orlando Letelier.
•Cyprus Complicity in the attempted assassination of President Archbishop Makarios.
•Bangladesh Fostering the deaths of the Bangladeshi people at the hands of the West Pakistanis by explicit (if covert) support of military and governmental efforts which resulted in genocide.
•East Timor Fostering the deaths of the East Timorese at the hands of the Indonesians by explicit (if covert) support of military and governmental efforts which resulted in genocide.
•Greece Complicity in the death of reporter Elias Demetracopoulos.
In an insightful review of Hitchens’s The Trial of Henry Kissinger in the London Jewish Chronicle, Lawrence Freedman, Professor of War Studies at King’s College, London, speculates about the possible defense Kissinger might offer to the allegations against him. He concludes that Kissinger would stress the ‘higher demands of foreign policy, especially at a time when the United States was reeling under the impact of Vietnam.’ Freedman writes:
Kissinger is a practitioner of the now-discredited art of realpolitik. This act was practiced in support of a higher purpose, to promote national interests while maintaining an orderly national system. Realpolitik had two tendencies. The first was to be conservative, in that radicalism was invariably disorderly. The second tendency was an antipathy to democratic processes to the extent that they interfered with deal-making. (Freedman, 2001: 33)
Kissinger, for his part, has hardly been forthcoming in his responses to questions about alleged war crimes. But he has been strident in defending his actions and vigorous in questioning the tactics and motivations of his attackers. Declaring his papers ‘off-limits’ to others – for security and other, seemingly personal, reasons – is one such example. Such stridency and vigor may bespeak a guilty conscience, or acknowledgment of deeds wrongly done by others with self-implication, or even serve as a psychological deflecting mechanism by someone whose power and ego needs dictate a refusal to confront accurate critiques, and constitute, in themselves, a form of psychosis.
This last possibility is strongly hinted at in Seymour Hersh’s book, The Price of Power: Kissinger in the Nixon White House (Hersh, 1983). The hints are found in two places. First are the comments of Anthony Lake, reflecting on his resignation from the National Security Council in April 1970, and his failure at that time to call a news conference and reveal the more sordid realities of the Nixon White House:
We didn’t do so on the single calculation that it would destroy Henry. I knew the administration was squalid, but there was this enormous illusion about Henry. I clung to the delusion that the man was still rational and that even his own strong sense of self-survival would keep him out of real trouble. In effect, it was my theory of the ruthlessness of Henry Kissinger; in truth, there were no limits. (Hersh, 1983: 190)
Later on, Hersh cites the telling comment of a senior unnamed military official: ‘Henry adores power, absolutely adores it … To Henry, diplomacy is nothing without it’ (quoted in Hersh, 1983: 239). One cannot but recall here Lord Acton’s oft-quoted maxim: ‘Power corrupts, and absolute power corrupts absolutely.’ Indeed, Larry Berman consistently argues in his book No Peace, No Honor: Nixon, Kissinger, and Betrayal in Vietnam (Berman, 2001) that the corrosive results of power on both Nixon and Kissinger resulted in the tragic and needless deaths not only of American soldiers in Vietnam, but among the civilian population of that country as well.
Hitchens and Hersh are joined in their indictment of Kissinger by William Shawcross, who writes in his 1979 book Sideshow: Kissinger, Nixon, and the Destruction of Cambodia:
It is a devastating portrait of Henry Kissinger – collaborator in the secret bombing of Cambodia begun in 1969 and later participant in a full-scale program of wiretapping designed to plug alleged leaks on the bombing – a man who built bridges and barricades all across Washington, extending his influence by cultivating the press, chosen leaders of Congress, and the Joint Chiefs; who waged a private war against the Secretaries of State and Defense; and reorganized the National Security System to consolidate his own power with no concern for the consequences of his actions. (Shawcross, 1979, jacket cover)
Relevant international legislation
Relevant to the discussion of the charges cited above, from Lemkin’s perspective, would be those salient passages of the (1948) United Nations Convention on the Prevention and Punishment of the Crime of Genocide, ratified by the United States in 1988. They read as follows:
ARTICLE I
… genocide whether committed in time of peace or in time of war is a crime under international law.
ARTICLE II
… genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such:
Killing members of the group;
Causing serious bodily harm to members of the group;
Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
Imposing measures intended to prevent births within the group;
Forcibly transferring children of the group to another group.
ARTICLE III
The following acts shall be punishable:
Genocide;
Conspiracy to commit genocide;
Direct and public incitement to commit genocide; Attempt to commit genocide;
Complicity in genocide.
ARTICLE IV
Persons committing genocide … shall be punished, whether they are constitutionally responsible rulers, public officials, or private individuals.
ARTICLE VI
Persons charged with genocide … shall be tried by a competent tribunal or the State in the territory of which the act was committed, or by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.
ARTICLE VII
The Contracting Parties pledge themselves in such cases to grant extradition in accordance with their laws and treaties in force.
Equally relevant are the indictments against the Nazi hierarchy associated with the International Military Tribunal (IMT) at Nuremberg, Germany, at the close of the Second World War. As Lemkin himself summarized them:
The Tribunal held its first public meeting in Berlin on October 18, 1945, and received the indictment, comprising more than 25,000 words. Four counts were outlined. The four counts, on two or more of which each of the twenty-four Nazi leaders were indicted, were as follows:
‘The Common Plan’ – or conspiracy to commit war crimes;
‘Crimes Against Peace’ – the planning, preparing, initiating, or waging of aggressive war;
‘War Crimes’ – violation of the laws and customs of war; and ‘Crimes Against Humanity’ …
For all these things go the words of which Justice Jackson said, thereby expressing the feelings of [a] shocked world: ‘The wrongs which we seek to condemn and punish have been so calculated, so malignant and so devastating that civilization cannot tolerate their being ignored because it cannot survive their being repeated.’ (Jacobs, 1992: 319–320)
Raphael Lemkin’s response?
Shawcross (1979), Hersh (1983), and Hitchens (2001) all arrive at the same conclusion: Henry Kissinger is guilty of the same crimes for which defendants were prosecuted at Nuremberg, and those designated by the United Nations Convention on the Prevention and Punishment of the Crime of Genocide.4 What, then, of Raphael Lemkin – lawyer and professor of law, Polish-Jewish refugee from the Nazi carnage, present at Nuremberg, and motivating presence behind the Genocide Convention? The precision evident in Lemkin’s work urges us to make some careful distinctions in turn.
First, the crimes alleged against Henry Kissenger must be separated into those related to genocide, those concerning crimes of war, and those that fall into neither category. (The bridge between the first two, however, can found in the fourth Nuremberg indictment, that which specifies ‘crimes against humanity’ as a precursor to a fuller understanding of genocide, as evidenced by subsequent scholarship and commentary.) Thus, the specific cases of Chile, Cyprus, and Greece, while reprehensible in and of themselves, and the machinations of one willing to commit such evil acts under the guise of American foreign policy (Freedman’s ‘realpolitik’), would, for Lemkin, better be addressed under other legislation, specifically criminal indictments. To what degree Henry Kissinger is directly or indirectly responsible for the deaths of René Schneider, Salvador Allende, Orlando Letelier, and Elias Demetracopoulos – whether by instigating, planning, or approving those acts – might constitute criminal activity is a matter best determined in a criminal court. (That the governments of Chile and Greece have not sought this avenue of redress in American courts, or asked for Kissinger’s extradition to stand trial in their own countries, suggests tellingly that political agendas supersede both legal and moral ones.)
Second, the central focus of the crime of genocide is the element of intentionality: the verifiable desire on the perpetrator’s part to destroy a given national, ethnic, racial or religious group, in whole or in part, through five specific means. In the cases of Vietnam, Bangladesh, and East Timor, whatever political motivations energized Henry Kissenger, there is no evidence of malicious hatred of the ethnic, racial or religious identities of those resident in those countries, or intent to destroy those groups as such. With regard to national identity, again – in the cases of Vietnam, Bangladesh, and East Timor – Kissinger’s motivations do not seem to have lain in a desire to wipe these nation-states off the map. Nor is there any concrete evidence that Kissinger’s (and Nixon’s) support of the political and military activities of either the Pakistanis or Indonesians in the cases of the Bangladeshi or East Timorese which resulted in the genocidal decimation of both populations, and is now acknowledged as a seemingly obvious consequence of their policies, was either foreseen or endorsed by Kissinger and Nixon. Rather, they sought to answer to a supposedly higher calling: to ensure the dominance of the United States and its own interests throughout the world. Thus, an additionally stinging indictment of United States foreign policy under Nixon, the primary architect of which was Kissinger, is its myopic vision with regards to the United States’ global interests at the expense of perceived lesser, unfortunate nations and populations. The critical question, then, specifically with regard to Kissinger, is this question of genocidal intentionality or genocidal motivation as a seemingly complicit bystander to such atrocities on the part of other nation-states with which the United States existed in relationship and sought to influence. Was Kissinger, in truth, a less-than-silent accomplice to others who committed such acts, or, as a result of his own contempt for perceived lesser beings, someone whose own unwillingness to address thoroughly the consequences of foreign policy decisions resulted in the genocide of those unfortunates? Documents recently released under the United States Freedom of Information Act with regard to East Timor, for example, reveal Kissinger’s support of the Indonesian invasion, but no understanding that genocide as defined in the United Nations Convention was either an expected or a logical outcome, though the understanding was that the Indonesians would achieve military and political victory, and that the cost in death to the East Timorese would be substantial.
The fact, however, that genocide was implemented by others in these states – and in Cambodia as well – with the full knowledge and evident support of the Secretary of State under President Nixon and his National Security Advisor (Cambodia excepted) may warrant designating Kissinger (and Nixon) ‘complicit bystanders.’ This is a category worthy of condemnation and moral reproach, but one that incurs no legal consequences in the international arena. It may be morally repugnant that these other nations either practiced genocide internally (Cambodia under Pol Pot, Hun Sen, and Ieng Sary), or were the victims of genocide inflicted by others (Bangladesh by the West Pakistanis, East Timor by the Indonesians), while the United States had the power to intervene under Kissinger’s watch, and did not. But it carries with it no legal indictment whatsoever. As heinous as the above-referenced genocidal acts remain, to find Kissinger (and Nixon) guilty of ‘complicity to commit genocide’ as specified in the United Nations Convention is questionable. At worst, they were accidentally complicit; at best, their foreign policy remains characterized by a flawed, limited understanding and by self-centered, self-promoting, and self-aggrandizing manipulation. Thus, Henry Kissinger is not, to use the French term associated with the genocide in Rwanda, a génocidaire – that is, one directly involved in the commission of such acts or one in a position of power to approve, sanction, or advocate such acts.
Complicating this discussion further, one must bear in mind that the United States in Vietnam was never officially engaged in a war as such – that is, one certified by Congress and executed by the president in his role as military commander-in-chief. Kissinger’s crimes, to the degree that they are regarded as legally criminal acts, all occurred in so-called ‘times of peace.’
Turning, then, to the first three charges against the defendants in the Nuremberg dock – ‘conspiracy to commit war crimes;’ ‘the planning, preparing, initiating, or waging of aggressive war;’ and/or ‘violation of the laws and customs of war’ – there should be no doubt whatsoever that Kissinger was himself committed to waging both a military and a political/diplomatic war in both Vietnam and Cambodia. The International Military Tribunal at the close of the Second World War, however, did not address these crimes in the context of a non-declared war, however well the criteria met those conditions. That is to say, acts of genocide committed outside of a declared war by two or more nation-states were not addressed by the IMT; brought to trial were those responsible for engaging in war, and the first three indictments, as such, all pertained to acts committed during the Second World War.
Even more specifically, however, neither Kissinger nor his boss Richard Nixon conspired to commit war crimes as such, though such crimes were, indeed, practiced by both South Vietnamese and American troops (e.g. at My Lai); nor did they intend to violate the laws and customs of war as they have been practiced in the modern period, though, equally, such violations did repeatedly occur. No commentary with which I am familiar with regard to the Nuremberg Trials, at the time of their implementation, addresses the indictments against those in the dock in times other than war, and, equally argues their applicability outside of that context. Thus, a stronger case could be mounted against Henry Kissinger with regard to the second charge – ‘Crimes Against Peace: the planning, preparing, initiating, or waging of aggressive war’ – but the legal status of the Vietnamese conflict as a ‘non-war’ makes such an indictment difficult. That American troops captured by the enemy were considered by them ‘prisoners of war’ reveals one additional absurdity of the so-called ‘Vietnam conflict’: one side understanding itself to be at war with the United States; and the United States refusing to acknowledge its involvement in a declared war. Thus, as the Nuremberg Tribunal understood it at the time, Henry Kissinger would not be classified as a ‘war criminal,’ though the acts he engaged in were certainly criminal. Thus, if Henry Kissinger could be classed as neither a génocidaire nor a war criminal, of what, precisely, is he guilty?
Concluding thoughts
What, then, of the issue of ‘retroactivity’: could Kissinger be brought to trial these many years later for acts committed during his term of service? Initially, the answer would seem to be ‘Yes.’
The International Law Commission of the United Nations, established in 1947 ‘to promote the progressive development of international law and its codification,’ in 1950 recognized seven ‘Principles of International Law Recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal’:
I |
Any person who commits an act which constitutes a crime under international law is responsible therefore and liable to punishment. |
II |
The fact that internal law does not impose a penalty for an act which constitutes a crime under international law does not relieve the person who committed the act from responsibility under international law. |
III |
The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Governmental official does not relieve him from responsibility under international law. |
IV |
The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him. |
V |
Any person charged with a crime under international law has the right to a fair trial on the facts and law. |
VI |
The crimes hereinafter set out as crimes under international law: (a) Crimes against peace (b) War crimes (c) Crimes against humanity |
VII |
Complicity in the commission of a crime against peace, a war crime, or crime against humanity as set forth in Principle VI is a crime under international law. (Principles of international law, n.d.) |
Such a document is, in truth, little more than a restating of the arguments put forth at the International Military Tribunal at Nuremberg, already addressed. Significantly, however, the word ‘genocide’ appears nowhere in the document itself, specifically not in the extended enumeration of the crimes specified in Principle VI.
James Popple, in a 1989 article entitled ‘The Right to Protection from Retroactive Criminal Law,’ concluded:
The right to protection from retroactive criminal law is well-recognized throughout the international community. Yet there are many examples, in communities which claim to espouse this right as being fundamental, where retroactive criminal laws have been made….
The Nuremberg trials are generally said to have been fair, despite the demonstrably retrospective nature of the charges laid against the Nazi defendants. This is clearly due to society’s abhorrence of the atrocities committed by the Nazis in World War II. Yet, regardless of the repugnant nature of what the Nazis did, it is clear that they were denied protection from retroactive criminal law….
In human rights conventions, the right to protection from retroactive criminal law is typically qualified by the proviso that the protection does not apply to acts or omissions which are criminal according to the general principles of law recognized by the community of nations …
So, it can be seen that, despite the statement that the principle of nonretroactivity is a fundamental human right (in various statements of human rights), retroactive law has been made, and continues to be made, in societies which ostensibly accept that principle as being a right….
Courts and legislatures have shown a willingness to adopt a retributive approach to punishment and to punish retrospectively. When judge-made law is taken into account, it is at least arguable that the human right is to be protected from retroactive criminal law is as much honoured in the breach as in the observance. Its application is limited, and that limitation is unpredictable. Non-retroactivity is an important principle, but it does not deserve the status of a fundamental human right. (Popple, 1989, emphasis added throughout)
Who, then, is to bring Kissinger to trial? Under which jurisdiction? In what country? Under what and whose laws, international or national?
It can be convincingly demonstrated that Henry Kissinger was guilty of the abuse of political power; an utter disregard of the democratic process; contempt not only for government but for the American people; and malign inattention to those who were themselves victims of genocide. One need only consider Kissinger’s involvement in the assassination and attempted assassination of other government leaders (Cyprus and Chile); his standing by as others committed genocide and war crimes (Bangladesh and East Timor); and his callously aggressive activities during the Vietnam conflict are more than sufficient evidence of his corruption and criminal behavior. Realistically, however, the failure of succeeding United States administrations to address his acts, as well as the case of those countries who were specifically the beneficiaries or targets of his criminality, in all likelihood perpetuate Kissinger’s status as a now-retired ‘elder statesman’ and media consultant – in short, as someone ‘above the law.’ Even the recently filed (2001) lawsuit by the family of the slain Chilean General René Schneider will, in all likelihood, go nowhere, given the reluctance of the United States government to bring to the bar of justice high-ranking administration officials for activities conducted and associated with the performance of their duties. Only the continuing and unrelenting glare of the public spotlight, and the unearthing of ever more documentary evidence, will tarnish his image in the eyes of the American people, and allow the truest portrait of him to be presented to the judgment of history.
The recent human rights victory of the extradition by a Spanish judge of former Chilean dictator Augusto Pinochet should, perhaps, signal another possibility and an indication of the initial success of the principle of universal jurisdiction in international law, the fourteen principles of which were enumerated at Princeton University, New Jersey, in 2001:
1Fundamentals of Universal Jurisdiction
2Serious Crimes Under International Law
3Reliance on Universal Jurisdiction in the Absence of National Legislation
4Obligation to Support Accountabilty
5Immunities
6Statutes of Limitations
7Amnesties
8Resolution of Competing National Jurisdictions
9NON BIS IN IDEM/Double Jeopardy
10Grounds for Refusal of Extradition
11Adoption of National Legislation
12Inclusion of Universal Jurisdiction in Future Treaties
13Strengthening Accountability and Universal Jurisdiction
14Settlement of Disputes.
These principles, which themselves are seemingly controversial and do not as yet have international standing or United Nations endorsement, go to the very heart of the sovereignty of a nation-state and those responsible for its leadership, whether elected, appointed or usurped. Significantly enough, Kissinger himself has addressed this concept of universal jurisdiction in a recent Foreign Affairs article entitled ‘The Pitfalls of Universal Jurisdiction,’ claiming that such jurisdiction poses ‘extreme risks substituting the tyranny of judges for that of governments.’ In this article, he also reveals his own political orientation with the comment: ‘The role of the statesman is to choose the best option when seeking to advance the cause of peace and justice,’ realizing that ‘there is frequently a tension between the two and that any reconciliation is like to be partial’ (Kissinger, 2001; see also the response of Kenneth Roth, executive director of Human Rights Watch, in the following issue of the journal).
Subsequent to this ongoing controversy, the recent (2002) decision of the Bush administration to pull out of the International Criminal Court would seem to ensure both immunity and impunity for Kissinger. Thus, in the aftermath of the forty-year struggle to ratify the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide, the US again opts to go it alone, and regards its own national state-sovereignty as above international law. As an extended consequence, those who were and are its leaders are guaranteed safety from prosecution for crimes committed while it office.
Who, then, is to bring Kissinger to trial? Under what jurisdiction? In what country? Under what and whose laws, international or national? While human rights advocates may cry correctly that Kissinger will end his days a free man, and jurists will debate the fine and finer points of international law, as well as Kissinger’s guilt – however defined – all is by no means lost to those who continue to persevere in this area.
The broader trend perhaps induces more optimism. As these words are being written, Slobodan Milosevic, the ousted president of Serbia, stands in the dock at the International Criminal Tribunal for the former Yugoslavia (ICTY), indicted for war crimes and genocide. Rwandan political, military, and religious leaders continue to be brought to trial and convicted of genocidal crimes at the International Criminal Tribunal for Rwanda (ICTR). Both Tribunals are legacies not only of the International Military Tribunal (IMT) at Nuremberg, but of the 1948 United Nations Convention on the Prevention and Punishment of the Crime of Genocide. For Raphael Lemkin, Polish-Jewish émigré lawyer and refugee, the journey of a young boy reacting to an ancient massacre and its horrific repetition throughout history has, at long last, begun to bear fruit.
References
Berman, L. (2001). No peace, no honor: Nixon, Kissinger, and betrayal in Vietnam. New York: The Free Press.
Forum: Regarding Henry Kissinger: A panel discussion on the making of a war criminal. www.harpers.org/online/kissinger_forum.
Freedman, L. (2001). Cold war warmed up. London Jewish Chronicle 33.
Henry Kissinger on trial: A guide to the controversy surrounding the diplomat. www.britannica.com/kissinger.
Hersh, S.M. (1983). The price of power: Kissinger in the Nixon White House. New York: Summit Books.
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——— (2001b). The case against Henry Kissinger. Part II: Crimes against humanity. Harper’s 302, no. 1810, 49–74.
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