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Analysis: Is there a war crimes case against Kissinger?
Wednesday, 31 January 2001 18:25 (ET)Analysis: Is there a war crimes case
against Kissinger?By JEREMY RABKINITHACA, New York, Jan 31 (UPI) -- The
current issue of a respectableAmerican magazine (Harper's) carries a long
article by a respectablejournalist (Christopher Hitchens) arguing that Dr.
Henry Kissinger should beprosecuted for war crimes. Can this be serious?At
first glance, Hitchens himself does not seem entirely serious about hiscall
for a prosecution. He opens his indictment by pointing to "the verdictsof the
International Tribunal at the Hague"-without explaining whichverdicts or
indeed which tribunal he has in mind. As it happens, there areseparate
tribunals for the former Yugoslavia and for Rwanda, neither ofwhich seems to
have any jurisdiction over anything done by Kissinger. Heinsists that "there
is now no reason why a warrant for the trial ofKissinger may not be issued in
any one of a number of jurisdictions"-withoutbothering to specify a single
one, much less explain the basis of itspurported jurisdiction. Whatever.Yet
at some level, Hitchens and his editors at Harper's seem very much inearnest.
"The Case Against Henry Kissinger" is the featured cover story inthe February
issue of the magazine. It lumbers along for 26 pages ofminutely sifted
evidence. And for all that, it is only the first installmentof a promised
two-part series. The "case" turns on decisions made byKissinger more than 30
years ago, when he served as National SecurityAdvisor in President Nixon's
first term.What is the news hook for this expose? Hitchens does not highlight
anysensational new revelations. For the most part, his article
simplyreassembles known facts and previous allegations to sustain the most
damninginterpretations. But even scalding interpretations of Kissinger's
record arenot exactly hot news. If there is no chance that Kissinger might
actually beput on trial, what is the point of devoting so much space to the
indictmentin a current affairs magazine?In fact, it is not entirely beyond
the realm of possibility that Kissingercould be arrested and put on trial.
As Hitchens, himself, says,"The Houseof Lords ruling in London, on the
international relevance of General AugustoPinochet's crimes, added to the
splendid activism of the Spanish magistracy... has destroyed the shield that
immunized crimes committed under thejustification of raison d'etat"Pinochet
was seized by British authorities in September of 1998, while hewas
recuperating from back surgery in a London hospital. A Spanishmagistrate had
sought his extradition to stand trial in Spain for crimescommitted in Chile,
while Pinochet was head of state in that country in the1970s. Judge Garzon
claimed that Pinochet was guilty of "genocide," on thetheory that the
international treaty on the punishment of genocide must beextended to cover
killings of political groups (which it does not mention)and must authorize
trials in national courts of outside countries (which italso does not
mention).In months of wrangling in British courts, three panels of judges
rejectedJudge Garzon's reasoning, but the judges who did favor extradition
offeredrather different rationales for it - invoking different legal
standards,covering different periods of Pinochet's time in office. In the
end, theBritish government announced that Pinochet was too sick too stand
trial onany grounds and sent him back to Chile.But the precedent
here-whatever it is-was applauded by the EuropeanParliament and by national
governments throughout western Europe. IfPinochet was a criminal, perhaps
Kissinger was an accomplice to his crimes,by covertly assisting the military
coup or the previous conspiracy thatbrough Pinochet to power in 1973? That is
part of what Hitchens argues --and the Internet is already teeming with
similar claims set out byspecialized advocacy groups. It was persistent
lobbying by Chileanleftists which first got a Spanish judge interested in
prosecuting Pinochet.Perhaps another prosecutor will respond to this clamor
for a follow upeffort.No country would try to seize Kissinger? Less than a
year ago, the FBIissued a discreet warning to former American officials about
traveling incountries where they might be seized for trial and there were
some Europeancountries (not publicly identified) on the list of danger sites.
Meanwhile,the pending U.N. treaty to establish an International Criminal
Court, farfrom discouraging such ad hoc prosecutions, contains an admonition
in itsPreamble that "it is the duty of every State to exercise its
criminaljurisdiction over those responsible for international crimes" --
withoutbothering to lay down any limiting definition for such "crimes."This
is more of a legal foundation than the British judges had to workwith and,
after all, as those judges showed, we aren't so picky any moreabout the bases
for such ventures in international justice.Mr. Hitchens may not be entirely
serious but it is no longer necessary tobe entirely serious. For centuries,
western governments have avoided haulingeach other's leaders or former
leaders into trials before nationaltribunals. One nation, it was thought,
could not have the rightful authorityto impose criminal justice on another.
You can punish another nation by waror-if you think in the personal terms
that Hitchens does - perhaps byassasination. But legal justice has a higher
standard.The gist of the Hitchens argument is that what is not possible in
theUnited States-what with our demand that crimes be specified in advance
andprosecuted within the statute of limitations-we should be happy to see
donefor us by less scrupulous states.This assumes we live in a world where
any state can step forward to imposeits own notions of justice on any foreign
leaders it can lay its hands on.At least Hitchens does not claim that such
arrangements will contribute topeace and stability in the world. It seems
enough for Hitchens that the neworder can offer a lot of satisfaction to
crusading journalists.(Jeremy Rabkin is professor of government at Cornell
University, New York,and author of the book Why Sovereignty Matters.)
