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.
