Henry
Kissinger has become
a very nervous person
By JONATHAN
POWER
July 4, 2001
LONDON - One senses someone who has started not to sleep
so easily at night. Although a man of substance and
powerful friends with might on his side, he now has begun
to think that perhaps the unexpected may happen. And that
would render him not only miserable and anguished-
detained far away from family, friends and comforters
-but would do much to undermine the reputation he thought
he had secured in the annals of American foreign
policy.
The man is Henry Kissinger, former U.S. Secretary of
State, whom his legion of critics charge with
unnecessarily prolonging the war in Vietnam,
precipitating neighbouring Cambodia into physical and
political ruin, encouraging the overthrow of a
democratically elected government in Chile and sundry
other monstrous political offences which brought about
the deaths of whole swathes of populations and the
suffering, in particular torture, of many thousands. His
defence, although oblique, is telling and can be found in
the current issue of Foreign Affairs. He has done it by
writing a rather inept attack on the law of "universal
jurisdiction" i.e. the concept that a country must
prosecute (or extradite) those accused of crimes against
humanity, even if they are not citizens of that state and
their crimes were committed elsewhere.
After Pinochet and Milosevic does Kissinger see the
writing on the wall for himself? Could some lone
magistrate somewhere- another Baltasar Garzon- set the
ball rolling towards him? Could he be picked up while
attending some academic conference in France, or giving
political advice on behalf of Kissinger Associates to the
government of Taiwan or to multinational companies in
Malaysia or taking a holiday in India? His government
doubtless would pull out the stops to get him released
but meanwhile he might have to spend some unpleasant
months in detention. All these fears are writ large in
this article. It doesn't take a shrink to analyse he is
voicing worries close to his own heart.
"In less than a decade", Kissinger writes, "an
unprecedented movement has emerged to submit
international politics to judicial procedures. It has
spread with extraordinary speed…" Then he goes on to
analyse the concept of universal jurisdiction, which, he
maintains, is "of recent vintage. The sixth edition of
Black's law Dictionary, published in 1990, does not even
contain even an entry for the term".
Yes, indeed the human rights movement has accelerated
at a great pace the last decade and even three years ago
one could not have imagined the arrest of either Pinochet
or Milosevic. But no, universal jurisdiction has been in
the works for some time. Indeed writing in this column
way back in the early 1980s at the time of the
formulation of the UN Convention Against Torture (whose
application later led to Pinochet's arrest and detention
in London) I reflected on the novelty, then being
discussed, of universal jurisdiction and observed how, if
the treaty were to be accepted, the well known
Argentinean torturer Captain Alfredo Astiz could be
picked up if he decided to travel to say London or Paris.
(Ironically he was finally arrested on Monday in his
hometown of Buenos Aires by the local police acting on an
Italian warrant.)
The most remarkable attribute of the Convention
against Torture, complete with its concept of universal
jurisdiction, is that it was ratified by the U.S.
administration of Ronald Reagan and the Chilean
administration of Augusto Pinochet. Kissinger should also
look up a case in 1981 of the New York Court of Appeals.
It approved a civil action brought under the U.S. Alien
Tort Statute by the Filartiga family, whose young son had
been kidnapped and tortured to death by a Paraguayan
police chief who subsequently decided to reside in the
U.S. The court had little hesitation in ruling that
"deliberate torture perpetrated under colour of official
authority violates universally accepted norms of the
international law of human rights, regardless of the
nationality of the parties…"
If one wants to understand what is now happening on
the human rights front and this "spreading with
extraordinary speed" that Kissinger laments one should
return to the abolition of slavery. As the British lawyer
Geoffrey Robertson observed in his landmark book "Crimes
against Humanity", "The precise point at which slavery
became prohibited by international law is impossible to
fix: there was no defining moment… but rather an
accumulation of treaties throughout the nineteenth
century and a gradual abandonment by the great powers of
their toleration of the practice."
The world is now apparently going through another such
great sea change. Although it has not yet led to the
prohibition by law of war or, at least, nuclear weapons
as some advocates have pushed for, it has in effect led
to the outlawing many of the accoutrements of war as we
have known it in the twentieth century. Torture, rape,
genocide, crimes against humanity and even aggression all
fall within the jurisdiction of the new International
Criminal Court, which is set to take over the work of the
ad hoc criminal courts for ex-Yugoslavia, Rwanda and
Sierra Leone, once its founding treaty is ratified by
sixty countries- as will probably happen within the next
two years.
The age of impunity for heads of governments and their
senior officials is coming to a close. Kissinger clearly
finds this a most surprising development. In what sounds
like a desperate plea he argues, "Any universal system
should contain procedures not only to punish the wicked
but also to contain the righteous". For him the human
rights movement is now in danger of descending into a
witch-hunt. Honourable men and women who served their
country responsibly should not find it difficult to sleep
at night or to travel wherever they want. But, Dr
Kissinger, the world has become a different place thanks
in part to the human rights lobby but also thanks to the
overwhelming majority of governments everywhere,
including, it must be said again, your own.
I can be reached by phone +44
7785 351172 and e-mail: JonatPower@aol.com
Copyright © 2001 By
JONATHAN POWER
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