"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 international 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 punishment if they had been law from as early as 1968, are not retroactive. The Nuremberg principles, however, were in that year announced by an international 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 Mofffitt. 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 individuals, 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 a,1 interest in doing so, and I 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 application 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 customary 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 countries - notably Spain - of the international laws that bind all states. Baltasar Garzon, 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 extradition. 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 admit that he knowingly broke the law in continuing to supply American weapons to Indonesia, which in turn used them to violate the neutrality of a neighboring territory and to perpetrate gross crimes against humanity. Kissinger also faces legal trouble over his part in the ethnic cleansing of the British colonial island of Diego Garcia in the early 1970s, when indigenous inhabitants were displaced to make room for a United States military 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 terrorist 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 authorities 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 bringing 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 organizations. 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 vindication in their own dignified and painstaking way, and at their own expense, and we shall be put to shame."
Christopher Hitchens
