A New, Improved Global Test

The next feud between America's freedom and democracy hawks and old United Nations diplomats will likely develop this week with the release of a much-anticipated report.

Ordered by Secretary-General Annan, it was prepared by a panel of 16 former world movers and shakers now in their 70s, who will undoubtedly be hailed at Turtle Bay as wise men, and derided elsewhere as has-beens.

Men who held previous posts like Russian foreign minister and Saddam champion Yevgeny Primakov, British U.N. envoy David Hannay, or current Arab League chief Amr Moussa, are not going to excite anyone looking for fresh insights into today's state of world affairs.

The one American on the panel, Brent Scowcroft, will undoubtedly be described as a close friend of the Bush family, and Condoleezza Rice's mentor to boot. But this is certainly not W's father's Oldsmobile and Ms. Rice has come a long way since her days with George H. W. Bush.

While the report itself will be officially introduced only later this week, enough details have already been leaked to learn of the staleness of its outlook on the top issue of the day, which was once defined by Ms. Rice as the situation where the only smoking gun might be a mushroom cloud.

From press reports and U.N. conversations, it seems that when it comes to the doctrine of pre-emption, the panel hewed very close to the old script of the current U.N. charter, which allows for two types of military action: either in response to an attack or, if an attack is imminent, only with a permission slip from the Security Council.

From:

The Trial of Henry Kissinger
by Christopher Hitchins
Verso Press, 2001

pages 120-123

... Kissinger set up a private consulting firm named Kissinger Associates, which exists to smooth and facilitate contact between multinational corporations and foreign governments. The client list is secret, and contracts with "the Associates" contain a clause prohibiting any mention of the arrangement, but corporate clients include or have included American Express, Shearson Lehmann, Arco, Daewoo of South Korea, H.J. Heinz, ITT Lockheed, Anheuser-Busch, the Banca Nazionale del Lavoro, Coca-Cola, Fiat, Revlon, Union Carbide, and the Midland Bank. Kissinger's initial fellow "associates" were General Brent Scowcroft and Lawrence Eagleburger, both of whom had worked closely with him in the foreign policy and national security branches of government.
Numerous instances of a harmony between this firm and Kissinger's policy pronouncements can be cited. The best-known is probably that of the People's Republic of China. Kissinger assisted several American conglomerates, notably H.J. Heinz, to gain access to the Chinese market.

The Chinese term for this zone of shadowy transactions is guan-xi. In less judgmental American speech it would probably translate as "access," or influence-peddling. Selling baby food in China may seem innocuous enough, but when the Chinese regime turned its guns and tanks on its own children in Tienanmen Square in 1989, it had no more staunch defender than Henry Kissinger. Arguing very strongly against sanctions, he wrote that "China remains too important for America's national security to risk the relationship on the emotions of the moment." Taking the Deng Xiaoping view of the democratic turbulence, and even the view of those we now suppose to have pressed Deng from the Right, he added, "No government in the world would have tolerated having the main square of its capital occupied for eight weeks by tens of thousands of demonstrators." Of course, some governments would have found a way to meet with the leaders of those demonstrators.... It is perhaps just as well that Kissinger's services were not retained by the Stalinist regimes of Romania Czechoslovakia and East Germany, which succumbed to just such public insolence later in the same year.

Another instance of the Kissingerian practice is the dual involvement of "the Associates" with Saddam Hussein. When Saddam was riding high in the late 1980s, and having his way with the departments of Commerce and Agriculture in Washington, and throwing money around like the proverbial drunken sailor (and using poison gas and chemical weapons on his Kurdish population without a murmur from Washington), the US-Iraq Business Forum provided a veritable slot-machine of contacts, contracts and opportunities. Kissinger's partner Alan Stoga, who had also been the economist attached to his Reagan-era Commission on Central America, featured noticeably on a Forum junket to Baghdad. At the same time, Kissinger's firm represented the shady Italian Banco Nazionale del Lavoro, which was later shown to have made illegal loans to the Hussein regime. As usual, everything was legal. It always is, when the upper middle class meets the lower Middle East.

In the same year - 1989 - Kissinger made his lucrative connection with Freeport McMoRan, a globalized firm based in New Orleans. Its business is the old-fashioned one of extracting oil, gas, and minerals. Its chairman James Moffett, has probably earned the favorite titles bestowed by the business and financial pages, being beyond any doubt "flamboyant," "buccaneering," and a "venture capitalist."

In 1989, Freeport McMoRan paid Kissinger Associates a retainer of $200,000 and fees of $600,000, not to mention a promise of a 2 percent commission on future earnings. Freeport McMoRan also made Kissinger a member of its board of directors, at an annual salary of at least $30,000. In 1990, the two concerns went into business in Burma, the most grimly repressive state in all of South Asia. Freeport McMoRan would drill for oil and gas, according to the agreement, and Kissinger's other client, Daewoo (which was then itself a venal corporate prop of an unscrupulous Korean regime), would build the plant. However, that year the Burmese generals, under their wonderful collective title of SLORC (State Law and Order Restoration Council), lost a popular election to the democratic opposition led by Daw Aung San Suu Kyi and decided to annul the result. This development - producing yet more irritating calls for the isolation of the Burmese junta - was unfavorable to the Kissinger- Freeport-Daewoo triad, and the proposal lapsed.

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 m 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."

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.

page 127

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 Mofffitt. 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 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.

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