Introduction
Henry Kissinger was perhaps one of the most active and important Secretaries of State. His forceful intervention in several questions such as the Vietnam War as well as his propping up of General Gustavo Augusto Pinochet makes him a reviled figure amongst those who have democracy at heart (Bass, p 275).
This paper seeks to argue that Kissinger should indeed be hauled in front of an International War Crimes Tribunal largely due to his intervention, covert or non-covert in several mass genocides. Two of these are those in Bangladesh in 1971 where the Pakistani Army was given US backing to carry out genocide as well as the genocide in East Timor in 1975 which also had the political backing of the United States (Hesenov p 276).
American citizens’ rights were mostly endangered during the Cold War period since every excuse was made to curtail these rights due to the Red scare and the fear of Communism. Especially after 1945, the intensity with which the extreme left was feared was quite paradoxical since it was largely through the efforts of Stalin that the war was won. However the rise of the ‘Iron Curtain’ countries which was a direct reference to Winston Churchill’s famous speech in Fulton, Missouri continued to fuel scares and phobias (p 685).
In fact, anything connected with red was seen as taboo by the government in those years. To add to the witch hunt, we had the creation and establishment of Senator Joe McCarthy of Wisconsin who took to the red issue like a duck to water. His invasive attitude created a terrible situation where Americans who even had the slightest notion of bias in favour of the left were crucified for their beliefs and were hounded and severely taunted (Dallekp. 696).
Although it has never been completely proven, the FBI under the stewardship of J Edgar Hoover engaged in wiretapping of telephones in order to collect incriminating evidence against those who were suspected of left wing sympathies. Additionally the inability of government to intervene on these issues created a situation where such secret service agencies practically had a free hand in the way they could invade other people’s lives (Dallekp 694).
Thus one has to view this as the most repressive decade for the American citizen who could not really enjoy his rights of freedom and liberty. When one compares with the latest Global Age decade which is covered in the last chapter of the book, one has to observe a marked difference in the attitudes of the state especially regarding freedom of expression. In the years immediately after the Second World War, the situation was radically different especially with regard to other racial minorities in the United States who were still kept as second class citizens and had practically no rights whatsoever (Bass p 695).
Although one may also argue that the Conservative ascendancy which occurred after the Watergate Scandal also infringed seriously on citizen’s rights, the passing of the Civil Rights Act in 1964 changed the lives for millions of African Americans. This was certainly not the case in the years after the Second World War where some returning soldiers were even subjected to mockery and torture when they attempted to claim some of their rights.
The excuse for citizen security also took on a racial tinge in the years after the Second World War. In fact most of the security scares involved people from racial minorities such as Jews and African Americans who were immediately suspected of having Communist sympathies if they decided to stage some protest or show disdain towards government. This highly charged atmosphere was conducive to the abuse of civil liberties and thus severely curtailed citizen’s rights. The few years after the Second World War are thus instructive and teach us a lot on the dangers that the American public were in with regard to their civil rights and liberties.
Henry Kissinger and the crimes against humanity
The Assassination of René Schneider, 1970
In 1970, at the height of the Cold War, the Chileans chose a new president, Salvador Allende. Elected with 36,2% of the votes, Allende was a founder of the Socialist Party and proposed to turn Chile into a socialist regime by peaceful and democratic means, guaranteed the freedom of the press and the respect of the constitution, still paying attention to the land reform issue.
The United States, afraid of another socialist government in its influence area, tried to prevent the election of president Allende, putting in practice the operations called Track I, which objectives were to assist rival candidates financially and Track II, triggered when Track I failed and that encouraged the Chilean military to support their attempts to destabilize the political landscape of Chile, through kidnaps and assassinations to lead the country to the military coup.
According to Steven Feldstein (2004), “Track II itself was so covert that it escaped the notice of the US Ambassador to Chile, the State Department and even the 40 Committee. In fact, the only parties who were aware of Track II efforts were Kissinger, Nixon and the CIA”. In that way, when Schneider, who was the Chief Commander of the Armed Forces, refused to involve the military in Chile’s civilian affairs, he became a target of the United States.
Therefore, it is argued that right-wing opponents of the Patria y Libertad terrorist group were supported by the CIA and elements of the Chilean Army and Navy, receiving weapons to assassinate General Schneider, who was killed on October 25, 1970. Hence, Kissinger is accused of having helped, assisted and financed the plan to assassinate the Chilean General, as he was the head of the American national security activities, giving him ultimate authority and responsibility over them.
However, there is no evidence beyond criminal intent to link Kissinger to the assassination, since a record shows that Kissinger had called off the operation on October 15 and because of the fact that none of the supplied machine guns had been used in the assassination of René Schneider.
The mass civilian killings in Bangladesh, 1971
The region currently known as Bangladesh was the stage of bloody conflicts between Hindus and Muslims, which led to the division of India into two nations, when India became independent in 1947. Pakistan, formed by West Pakistan and East Pakistan, was created from the northeast and northwest regions of India and had a very divergent population, both culturally and economically, which resulted in a civil war in 1971.
In December 26, 1971, a revolt in East Pakistan is started by MuktiBahini. As a result, the West Pakistan launched a military operation against Bengali civilians, students, intellectuals and armed people who were demanding independence of East Pakistan – current Bangladesh, which led to the deaths of between five hundred thousand and three million people.
Kissinger, as well as the United States, is accused of not only ignoring reports of civilian massacre in Bangladesh – almost genocide, but also encouraging the continuation of the attacks, supplying the Pakistan with military armaments. “Instead of rethinking his position, Kissinger continued a hands-off policy toward Pakistan and even sent a message to Yahya Khan thanking him for his ‘delicacy and tact’ at the height of the killings”. (FELDSTEIN apud ISAACSON, 2004), which shows the efforts to make the situation the less damaging as possible to the United States and Pakistani interests.
Nonetheless, it is called into question the short contribution of Henry Kissinger, since he had only encouraged Yahya with his words, not explicity sanctioned the continuation of the violence. Moreover, the Pakistan was fighting against Bangladesh and India at the same time, so the military support of the United States could be related to the Pakistan’s external struggle, which invalidate the military supply argument.
Another possible defenses of Kissinger concerning this case, is the ultimate authority realized by President Nixon and the absence of an international legislation that condemns lack of action.
The mass civilian killings in East Timor, 1975
In December 1975, Indonesia invaded the new nation of East Timor, which had just declared itself independent from Portuguese colonizers. From the beginning, the Indonesian forces were extremely violent in their relationship with the local population, seeking to dominate it through terror. Soon, the military occupation started to exterminate the East Timorese with some formal education and begins a mass killing against its inhabitants, besides committing rapes and looting.
Indonesia declared the territory as a province of the country and for twenty-five years, the population of East Timor was subjected to extrajudicial executions, torture and starvation. About 200 thousand deaths are estimated only in the invasion, which took place just hours after U.S. President Gerald Ford and the Secretary of State Henry Kissinger visited General Suharto in the Indonesian capital of Jakarta.
According to FeldsteinFeldstein (2004), Suharto delayed any movement until he received explicit US approval for the invasion. The U.S. government doubled military aid to Indonesia and prevented the United Nations from taking effective action against Suharto, because the leftist Fretilin declared the independency of Timor with the population’s support, in the context of the Cold War. Therefore, Kissinger was aware that the Indonesia’s governor would use US supplied arms in a destructive manner.
The United States transferred $328 million in weapons and spare parts and almost $100 million in commercial weapons exports to the Jakarta regime during the period. And the Defense Department allocated more than $7.5 million in International Military Education and Training program (IMET) funding for Indonesian soldiers. (BERRIGAN, 2001).
However, in Kissinger’s defense, some scholars argue that it was Suharto’s final decision to enter East Timor, and although the Secretary of State could be morally condemned, there is no evidence to punish him under the international legislation
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What are war crimes?
"The right of belligerents to adopt means of injuring the enemy is not unlimited."
War crimes are a relatively recent concept in the realm of international law. Its weight as a topic of international concern has been in great part, initiated by the events of World War II in which the murder of millions of Jews under the Nazi regime were committed, among other atrocities. War crimes had been variously defined as serious violations of international treaties and laws. Such treaties and laws include the Statute of the International Criminal Court, which defines war crimes as the “serious violations of the laws and customs applicable in international armed conflict” and “serious violations of the laws and customs applicable in an armed conflict not of an international character”. Article 147 of the Fourth Geneva Convention on the other hand, refers to war crimes as the “wilful killing, torture or inhuman treatment, including wilfully causing great suffering or serious injury to body or health or wilfully depriving a protected person of the rights of fair and regular trial, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly". At the heart of the concept of criminalising war atrocities is the notion that individuals can be filed criminal charges for their country’s actions.
One such individual is Henry Kissinger himself, who has been accused of being the mastermind behind several war crimes, notably the secret bombing campaigns in neutral Cambodia and Laos which began in 1969 in a bid to end the Vietnam War of 1954—1975. Before I expound on Kissinger’s role in authorising these illicit bombings, I shall first provide an overview on the political situation in the United States at the time.
It was the year 1969, the year in which United States President Richard Nixon first came into office. Many Americans believed that Nixon would bring an end to the war that raged in Vietnam, and Nixon himself pledged to “have an honourable end to the war in Vietnam” as part of campaign promise made in the preceding year. As Nixon’s lead foreign affairs advisor and National Security Advisor, Kissinger was thus embroiled in formulating strategic plans to end the war ‘honourably’ by assisting the President in effecting the policy of ‘Vietnamization’, that is to say, a movement on the part of the US federal government to "expand, equip, and train South Vietnam's forces and assign to them an ever-increasing combat role, at the same time steadily reducing the number of U.S. combat troops". However progress towards defeating their North Vietnamese opponents (known as the Viet Cong) was slow, and Kissinger was noted to have commented that “I can’t believe that a fourth-rate power like North Vietnam doesn’t have a breaking point”.
In order to defeat or weaken Viet Cong insurgent units that raided South Vietnam from within Cambodia, Kissinger secretly engineered a strategy that saw to the bombing of parts of Cambodia that were believed to function as “safe havens and supply routes” for the Viet Cong, a campaign that violated a number of international conventions. After all, the United States acknowledged the neutrality of Cambodia and Laos; it was itself party to the 1962 Geneva Accords which outlawed the entry of weapons into Laos, and it signed the 1954 Geneva Conference on Indochina – an act that signified that the signee’s recognition of Cambodia’s neutrality. Despite this, Kissinger authorised Operation Breakfast, one of many bombing campaigns into Cambodia and Laos, following the request of General Creighton Abram to administer attacks on Viet Cong bases in Cambodia. These secret, illegal bombings were war crimes in and of itself, for not only did Kissinger choose to violate the pre-existing Conventions, the bombings caused the wilful killing and suffering of hundreds and thousands of Cambodians, Laotians and Vietnamese people that are “not justified by military necessity and carried out unlawfully and wantonly". The Finnish Kampuchea Inquiry Commission estimated that “six hundred thousand Cambodians died and over two million civilians became refugees as a result of the United States’ indiscriminate carpet bombing of towns, villages, jungle, and countryside from 1969 to April 1973”.
Kissinger attempted to justify the bombing of neutral Cambodia and Laos in a number of ways. Firstly, he argued that the Viet Cong were capitalising on the neutrality of the two countries by using them as sanctuaries and routes for supply: “After the Laos settlement of 1962, the North Vietnamese gored their pledge to respect Laos’ neutrality and opened a supply line (the Ho Chi Minh trail) through Laos and Cambodia After killing scores of Americans each month and inflicting casualties and destruction, they would return to Cambodia, brazenly using the neutral status of their unwilling host to legitimise their sanctuaries”. To Kissinger, the North Vietnamese was the sole party that violated the international law. Indeed, he dismissed claims that the bombing was done in an underhanded manner under veils of secrecy and deception. He asserted that since journalists had asked Prince Sihanouk to comment on the American bombing of his country, the “bombing was not even so secret”.
Kissinger goes on to justify the bombing campaign in stating that the incumbent head of Cambodia, Prince Sihanouk, had “all but invited these American attacks the year before”. Kissinger believed that Prince Sihanouk has implicitly agreed to such attacks because “the Cambodian population had been expelled by the North Vietnamese”.
(Rome Statut)
Nullaponea sine lege and the Radbruch formula
In consideration of the fact that Henry Kissinger´s deeds fall both in the category of war crimes as well as crimes against humanity the question arises whether he should be judged for the crimes he has committed. The following part aims to illustrate at the one hand the current legal status of the crimes mentioned referring to the Rome Statute, which represents the crucial juridical norm within international law. On the other hand the analysis will critically reflect upon this norm by challenging its absolute validity and disclosing possible exceptions to it referring to the so called Radbruch formula.
The International Criminal Court represents the main permanent tribunal and juridical organ persecuting “The crime of genocide, Crimes against humanity, War crimes, [and] The crime of aggression” (Part 2, §5). Since several of Kissinger´s political actions correspond to the definitions of war crimes as well as crimes against humanity the ICC seems therefore to be the responsible authority to judge the offender. This responsibility is reinforced by other criteria, such as the unwillingness of the United States, Kissinger´s native country, to carry out the prosecution (cf. Part 2, §17,1a) and the membership of the victim countries to the Statute (cf. Part 2, §12). The reason for which Kissinger has not yet been called to account by the ICC is the barrier imposed by the article of non-retroactivity: “No person shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.” (Part 3, §24,1). Since the Rome Statute has come into effect on 1st July, 2002 and Kissinger´s political career ended on 20th January, 1977 it follows that he can be no longer hold to account. An indictment and a persecution by the ICC would be inadmissible in so far as they offend against its own principles. The idea of non-retroactivity is confirmed in the formula “Nullapoena sine lege” (Part 3, §23), which means “no penalty without a law”. The idea describes the illegitimacy to punish someone for an action which at the time it happened has not been prohibited by law.
Do Nullapoena sine lege and the related idea of non-retroactivity have therefore an absolute validity? Is there any exception to the law which would allow to judge Kissinger but for all that? The Nürnberger Trials as well as the Border Guard Trials seem the clue to a positive answer (http://www.juraforum.de/lexikon/radbruchsche-formel): The culprits of the National Socialism and the German Democratic Republic have been judged in those trials although their actions were consistent with the former law. Even if these trials have taken place before the Rome Statue has been ratified, the justification of the judgments´ legitimacy alludes to a principle which could probably be applied to Kissinger´s case. The execution of a deserter escaping from a commander of the German “Vokssturm” has been finally convicted, even if the deed has been conform with the Nazi jurisdiction. The legal decision explains:
“SelbstwenndieserBefehlalsGesetzoderRechtsverordnungverkündetwordenwäre, wäreernichtrechtsverbindlich. Das Gesetzfindetdort seine Grenze, woes in Widerspruchzu den allgemeinanerkanntenRegeln des VölkerrechtesoderzudemNaturrechttritt (OGHSt 2, 271) oder der Widerspruch des positivenGesetzeszurGerechtigkeitein so unerträglichesMaßerreicht, daß das Gesetzals »unrichtigesRecht« der Gerechtigkeitzuweichen hat.” (http://www.zaoerv.de/20_1959_60/20_1959_1_2_b_186_242.pdf)
Even if the shooting has been accordant and valid in the context of the Nazi regime and it´s laws, the Federal Constitutional Court of Germany didn´t regard the order or law to shoot deserters as legally binding, because it conflicted with either the Public International Law or the Natural Justice. The idea that the positive law in certain cases has give way to justice and should not be obeyed originates from the German philosopher Gustav Radbruch. Radbruch illustrates that in special cases a conflict between the positive law and the idea of justice might be so intense that despite of the importance the legal certainty it has to be resolved in favour of the idea of justice so that disobedience is the only right way to act:
“Der Konfliktzwischen der Gerechtigekeit und der Rechtssicherheitdürftedahinzulösensein, daß das positive, durchSatzung und MachtgesicherteRechtauchdann den Vorrang hat, wennesinhaltlichungerecht und unzweckmäßigist, essei den, daß der Widerspruch des positive GesetzeszurGerechtigkeitein so unerträglichesMaßerreicht, daß das Gesetzals »unrichtigesGesetz« der Gerechtigkeitzuweichen hat.” (Radbruch: GesetzlichesUnrecht und übergesetzlichesRecht, § 4)
Even though Radbruch admits that legal certainty plays an important role and it´s permanent change is to be seen as arbitrary and unjust (cf. Radbruch, §3), he emphasizes the case that law can be sometimes unjust to a degree which cannot be longer supported. If the content of a law denies justice to a degree that it becomes it´s total opposite and adversary it loses automatically it´s legal nature (cf. Radbruch, §4). Insofar positive law is defined as a rule destined to serve justice, a law perusing the opposite goal cannot qua definitionem even be called a law: “woGerechtigkeitnichteinmalerstrebtwird, wo die Gleichheit, die den Kern der Gerechtigkeitausmacht, bei der Setzung positive Rechtsbewußtverleugnetwurde, da ist das Gesetznichtetwanur »unrichtigesGesetz« ,vielmehrentbehrtesüberhaupt der Rechtsnatur” (Radbruch, § 4). Radbruch´s definition of justice is vague, but sufficient to demonstrate that Kissinger has ignored it. The philosopher defines justice as equality (cf. § 4: “Gleichheit, die den Kern der Gerechtigkeitausmacht”) as well as the violation against human rights (cf. § 6) and clarifies the idea of the illegitimate law (which no longer can be regarded as a law) by referring to the laws valid during the National Socialism (Radbruch, § 5). Insofar Kissinger is accused of crimes against humanity and war crimes, which involve the murder of people he acted against Radbruch´s definition of justice because the right life has necessarily to be regarded as the fundamental condition of all other human rights (which are involved in Radbruch´s idea of justice).
The reason why Kissinger should be judged can be consequently justified with Radbruch´s idea of justice, which exists independently of the positive law and therefore never loses it´s validity. In the context of this argumentation the Nullaponea singe lege and the principle of non-retrospectivity correspond only to those cases, where a positive law did not violate the idea of justice to such a degree where it became it´s opponent and antagonist principle. When the positive law passes this limit, it loses it´s legal nature and cannot qua definitionem be seen as a law. In such a case men is subject only to the natural law. The timelessness and eternal validity of this natural law and the idea of justice allow to judge Henry Kissinger, who´s deeds can be interpreted as ignorant to these principles.
Is it possible make a trial to Kissinger with the Universal Jurisdiction? The political answer.
After the Second World War the necessity of judge the heads of the state and the agents of the state has become imperative. That was justified by the constant violations of the human rights, the humanitarian law (ius in bello) and in general, the international law.
The Nuremberg trials have formulated some principles that has been utilized as principles of the new International Criminal Law. In the last 20 years some states have developed the idea of “Universal Jurisdiction”.
There isn´t an agreement concerning the definition of Universal Jurisdiction, but in the Doctrine there is a consensus about the substance of this new development of Public International Law. The doctrines agrees that the Universal Jurisdiction is the fact that one state can apply his laws and make a trial to someone without the territorial or the subjective relation. In other words, a State can exercise his jurisdiction and judge an act committed in a place different to his territory and by or against a non – citizen. “The only factor of attachment with the juridical power of the state is to be part of a human community”.
It is a concept to affirm the human idea and to persecute who denies the humanity by some crimes, for example: the crimes against humanity, genocide, war crimes, etc. There is an ethic factor because the central idea is that if someone commits a crime denying the humanity all the states can prosecute and judge him because he is attempting against the Humanity.
Some doctrinaires argue that in certain internationals conventions is possible found this principle. The most mentioned is the article 6 of the Convention on the
Prevention and Punishment of the Crime of Genocide:
“Thus, according to that legal provision, persons charged with genocide shall be tried by a competent tribunal of the State in the territory of which the act was committed, or the principle of autjudicare-autdedere (extradite or prosecute) shall be applied. “Autdedereautjudicare” means that States where the suspect is have the choice between extraditing or judging him.”
This principle can be used to judge Kissinger. But also there are some political problems. Kissinger has exposed his position about the Universal Jurisdiction in “The Pitfalls of Universal Jurisdiction”. He affirms that the treaties doesn´t “authorize” the universal jurisdiction and also if this is possible it is a violation to the sovereignty of the state and in the case of the Unites States it is a violation to the American Constitution. Additionally, according to Human Rights Watch, the government of USA realize a campaign against the international justice mechanisms that has forced Brussels to adopt a new act on universal jurisdiction. This new law reverse the extensive interpretation of this concept of the act of 1993.
Moreover there are some immunities that can be used to prevent the trials against the member of the government or the heads of state. This immunities are based in the theory of the state as individual (étatcommeindividu). In other words, the State and the governor are fused: They are the same person, and as the state has immunities, the most important functionaries can be benefited by this immunities.So, when the agent of the state realizes some acts exercising his functions has an immunity of prosecution in a foreign criminal court. The privet acts realized by the agent can be prosecuted before or after the period of his function. But it exist an exception, the agents of the state can be judged by the realization of international crimes in an International Criminal Court as the ICC.As is established in the principles of Nuremberg, specifically the 3 principle that establish “The fact that a person who committed an act which constitutes a crime under international law acted as Head of State or responsible Government official does not relieve him from responsibility under international law.”
Conclusion :
The evidence provided in this paper is quite varied and is pretty ample to suggest that Kissinger should really be tried for complicity in crimes against humanity. Richard Nixon was always a corrupt and morally reprehensible President who ended up skewered on his own fork with the Watergate Scandal (Berman p 211). Nobody seems to blame Kissinger for anything even though he was probably fully aware of the corruption that was going on (Dallek p 274). That also meant that the American public viewed the Presidency with some disdain and Carter obviously had to work hard to rebuild the reputation of the institution. Whether he succeeded or not was quite debatable although one has to say that under his watch several policy initiatives to help the poor and downtrodden were undertaken. Nixon was perhaps more successful on the foreign policy front especially when he managed to open up diplomatic relations with China which was not exactly a country that had a lot going for it at the time. Carter was perhaps very much a calmer person in this regard and did not want to engage in any sort of conflict with other countries and preferred a foreign policy which was certainly not belligerent at all.
Carter was definitely not corrupt and was very much a forward thinker in terms of local issues and he had a lot of respect for the poor unlike Nixon who was brash and belligerent and unashamedly courted rich contacts for his own personal gain, something which Carter would definitely not dream of doing. He was steadfast and very virulent on the principles in which he believed in accordingly, very much so in the context of those troubled times which affected him singularly and accordingly. The same cannot be said for Henry Kissinger.
Works Cited :
Bass, Gary,The Blood Telegram: Nixon, Kissinger, and a ForgottenGenocide, 2013. ISBN 0307700208
Benedetti, Amedeo, Lezioni di politica di Henry Kissinger. Linguaggio, pensieroedaforismidel più abile politico di fine Novecento, Genova, Erga, 2005, ISBN 88-8163-391-4
Berman, Larry, No peace, no honor. Nixon, Kissinger, and Betrayal in Vietnam, New York, NY u.a.: Free Press, 2001. ISBN 0-684-84968-2.
Dallek, Robert, Nixon and Kissinger: Partners in Power. HarperCollins, 2007. ISBN 0-06-072230-4
Graebner, Norman A. "Henry Kissinger and American Foreign Policy: A ContemporaryAppraisal." Conspectus of History 1.2 (1975).
Groth, Alexander J, Henry Kissinger and the Limits of Realpolitik, in: Israel Journal of ForeignAffairs V:I (2011
The Genève’s Conventions of 1949 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984.
Hesenov, Rashim, “Universal Jurisdiction for international crimes – a case study”, European Journal of Criminal Policy and Research, September 2013, Volume 19, Issue 3, p. 276.
Quoted by Keneth, Roth “The case of universal jurisdiction”, Foreign Affairs, New York, Volume 80, number 5, September/October 2001, pp. 150- 154.
As evidence of this negative campaign there are some pacts signed by the government of USA and others states to not deliver nationals of the USA not deliver to the Court U.S. nationals accused of genocide, crimes against humanity or war crimes to the Court.
Tachou-Sipowo, Alain Guy, « L´immunité de l´acte de fonction et la responsabilité pour crimes internationaux des gouvernants en exercice », Mc Grawhill Law Journal,number 56, p.635.
Coppens, Philippe, “Du Droit de punir : Par humanité ? (A propos de la compétence universelle)”, Revue Général du Droit, Ottawa, 2005, vol. 35, nom. 3, p. 404.
