The Trial of Henry Kissinger (19 page)

But the following year, in March 1991, Kissinger was back in Indonesia with Moffett, closing a deal for a thirty-year license to continue exploiting a gigantic gold and copper mine. The mine is of prime importance for three reasons. First, it was operated as part of a joint venture with the Indonesian military government, and with that government's leader, the now-deposed General Suharto. Second, it is located on the island of Irian Jaya (in an area formerly known as West Irian): a part of the archipelago which - in common with East Timor - is only Indonesian by right of arbitrary conquest. Third, its operations commenced in 1973 - two years before Henry Kissinger visited Indonesia and helped unleash the Indonesian bloodbath in East Timor while unlocking a flow of weaponry to his future business partners.

This could mean no more than the "harmony of interest" I suggested above. No more, in other words, than a happy coincidence. What is not coincidental is the following:

• Freeport McMoRan's enormous Grasberg mine in Irian Jaya stands accused of creating an environmental and social catastrophe. In October 1995 the Overseas Private Investment Corporation (OPIC), a Federal body that exists to help US companies overseas, decided to cancel Freeport McMoRan's investment insurance for political risk –

the very element on which Kissinger had furnished soothing assurances in 1991. OPIC concluded that the Grasberg mine had

"created and continues to pose unreasonable or major environmental, health or safety hazards with respect to the rivers that are being impacted by the tailings, the surrounding terrestrial ecosystem, and the local inhabitants."

• The "local inhabitants" who came last on that list are the Amungme people, whose protests at the environmental rape, and at working conditions in the mine, were met by Indonesian regular soldiers at the service of Freeport McMoRan, and under the orders of Suharto. In March 1996, large-scale rioting nearly closed the mine at a cost of four deaths and many injuries.

Freeport McMoRan mounted an intense lobbying campaign in Washington, with Kissinger's help, to get its OPIC insurance reinstated. The price was the creation of a trust fund of $100 million for the repair of the Grasberg site after it, and its surrounding ecology, had eventually been picked clean. All of this became moot with the overthrow of the Suharto dictatorship, the detention of Suharto himself, and the unmasking of an enormous nexus of

"crony capitalism" involving him, his family, his military colleagues, and certain favored multinational corporations. This political revolution also restored, at incalculable human cost, the independence of East Timor. There was even a suggestion of a war crimes inquiry and a human rights tribunal, to settle some part of the account for the years of genocide and occupation. Once again, Henry Kissinger has had to scan the news with anxiety, and wonder whether even worse revelations are in store for him. It will be a national and international disgrace if the answer to this question is left to the pillaged and misgoverned people of Indonesia, rather than devolving onto a United States Congress that has for so long shirked its proper responsibility. The subject awaits its magistrate.

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 international 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 starving 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 international 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 interest." 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 represents 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 precedent. 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 citizenship. 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 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 Moffitt. The court held that

"[whatever 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 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 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 admits (see page 105) that he knowingly broke the law in continuing to supply

*See especially Nicole Barrett: "Holding Individual Leaders Responsible for Violations of Customary International Law," Columbia Human Rights Law Review, Spring 2001.

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.

APPENDIX I

A FRAGRANT FRAGMENT

I AM TAKING
the liberty of reproducing a correspondence, initially between Henry Kissinger and myself, which began in the
New York Times Book Review
in the fall of the year 2000. In a review (reprinted below) of
The Arrogance of Power
, the work by Anthony Summers and Robbyn Swan to which direct reference is made on page 13 of this book, I had essentially summarized and condensed the case against Nixon's and Kissinger's private and illicit diplomacy during the 1968 election; a case made much more fully in Chapter 1 here [see pages 8-15]. I also made reference to some other Nixon-era crimes and misdemeanors.

This drew a rather lengthy and - to put it no higher - distinctly bizarre reply from Kissinger.

Its full text is also appended, together with the responses that it occasioned in its turn. (I have no means of knowing why Kissinger recruited former General Brent Scowcroft as his co-signer, unless it was for the reassurance of human company as well as the solidarity of a well-rewarded partner in the firm of Kissinger Associates.)