Acknowledging our international criminals: Henry Kissinger and East Timor.

• Author: Mark, Brandon

[T]he odds against bringing human rights abusers to justice remain astonishingly high. Indeed, the absence of effective means of sanctioning abuses reveals a tragic anomaly of the post-World War H era. On the one hand, the nations of the world, all but universally, have committed themselves to a series of detailed covenants in which they have pledged to one another and to the larger international community that they will respect human rights. On the other hand, far more extensive and terrible violations of human rights have occurred than during any other period except for World War II itself.

--Aryeh Neier, War Crimes (1)

INTRODUCTION

In a one week period of March 2003, three ostensibly unrelated events transpired that typify a central theme in United States (U.S.) foreign policy since World War II. First, in early March, the inauguration of the International Criminal Court (ICC) was heralded in The Hague. (2) However, no representative from the United States attended, an event described by some "as world justice's biggest step since an international military tribunal in Nuremberg tried Nazi leaders after World War II." (3) The reason no U.S. representative attended the groundbreaking event was because the U.S. is not a party to the tribunal. In fact, the U.S. has been attempting to undermine the tribunal by "persuading other countries to seal bilateral agreements exempting all U.S. citizens from the court's authority." (4)

The same day the inaugural events for the ICC were being held, a U.S. federal appeals court held that Kuwaiti, Australian, and British citizens captured in Afghanistan in the course of the U.S. "war on terror" were not entitled to challenge their detentions at the Guantanamo Bay naval base. (5) The court held that habeas corpus relief was unavailable to aliens held outside U.S. territory. (6) On grounds that appeared to strain logic, the court refused to grant the detainees the minimal right to have an independent judicial body evaluate the evidence supporting their continued incommunicado detentions. (7) The court held it lacked jurisdiction to evaluate the merits of the detainees' claims, effectively insulating their detentions from challenge in the judicial branch. (8) However, the real effect of the ruling was to give unlimited discretion to the president and military regarding the detention of foreign nationals captured in foreign interventions and held on foreign U.S. bases. (9) The court appeared unconcerned that the detentions were accidental, (10) or even worse, lacked supporting evidence and possibly violated international laws and obligations. (11)

The third event came less than a week later. Before U.S. forces invaded Iraq, the Bush administration publicly identified nine Iraqi officials who it asserted "would be tried for war crimes or crimes against humanity after an American-led attack on Iraq." (12) Despite that at the time the announcement was made, international public opinion seemed to question the validity of the Bush administration's preemptive war in Iraq, (13) the administration, without irony, issued a decision to seek prosecutions based on international law against Iraqi officials. The list of Iraqi officials who were to be prosecuted was also issued without any attempt to explain the apparent contradiction between the decision to prosecute them and the the administration's contrary position with respect to the ICC.

These three events are mentioned as an introduction to the broader problem of which this Article seeks to address but a tiny part. The problem is exemplified by the almost total lack of domestic public reaction to the three events, and the absence of public outcry epitomizes the American publics's reaction to the many arguably questionable foreign policy actions of the U.S. in the past fifty-plus years.

Unfortunately, this problem has profound implications for the continued existence of the international legal system. It is a problem that is difficult to frame precisely, but one that pervades domestic public opinion about U.S. foreign policy. Author Ariel Dorfman describes the problem as such:

The history of America, and the very particular sort of empire that it became, seems to have allowed the process of the infantilization of the adult to be accompanied by images or intimations of innocence which were uniquely powerful and all its own.... America has been interpreted, time and again, as the domain of innocence. In a sense, a more extraordinary feat than changing thirteen colonies into a global empire in less than two centuries is that the U.S. managed to do it without its people losing their basic intuition that they were good, clean, and wholesome. Its citizens never recognized themselves as an empire, never felt bound by the responsibility (or the moral corruption) that comes with the exercise of so much power.... The Americans wanted ... the spoils of empire, but were not ready to assume the excruciating dilemmas that went with the knowledge of what they were imposing upon others. They desired power which can only come from being large, aggressive, and overbearing; but simultaneously only felt comfortable if other people assented to the image they had of themselves as naive, frolicsome, unable to harm a mouse. Unlimited frontiers, abundance and plenty, the feeling of being reborn at every crossroads, led to the belief that growth and power need not relinquish, let alone destroy, innocence. Whatever obstructed and contradicted this vision was painted over by a curious sort of memory that reshaped the recent and receding past into myth as it moved. (14) In short, the problem is that Americans tend to evaluate their own nation's actions and actors with red, white, and blue-colored glasses.

It is against this tide of sentiment that this Article seeks to move. It attempts to be a counter-narrative to the deeply held but unstated belief among vast numbers of the American public that U.S. government and military officials can never be international criminals because international law really only exists to protect Americans from others. Because the majority of the American public sees the U.S. and its actors as perpetually innocent in deed and in motive, U.S. officials have had license to carry out great many actions that upon further examination might cause great consternation among the informed electorate.

This Article seeks to address a single thread of this grand tapestry of collective denial: Henry Kissinger's role in the killing of East Timorese civilians by the Indonesian military in the mid-1970s. (15) It is no doubt a topic about which a majority of Americans are completely unaware, illustrating Ariel Dorfman's point. Because the extent of Henry Kissinger's role in and responsibility for the death of innocents in East Timor is vastly larger than this Article can possibly hope to reach, the discussion is limited to a few select topics. The topics selected were chosen somewhat arbitrarily but are intended to give a basic foundation to the discussion of the broader topic, that is, holding U.S. officials like Henry Kissinger responsible for the international laws they violate.

Section 1 of this Article briefly addresses Henry Kissinger's history as it relates to the extent and nature of his authority during the relevant periods of time, and it recounts some recent attempts to hold him and other world leaders accountable for past transgressions of domestic and international law. Section I also lays forth the currently known evidence supporting the case against Henry Kissinger with respect to his role in East Timor.

Section II begins with an overview of the possible international criminal laws, both statutory and common, that could serve as a basis for trying Henry Kissinger. The bulk of Section II focuses on the body of international law known as "crimes against humanity." First, the historical evolution of the doctrine is explored; then some current case law in the field is examined. Finally, Section II attempts to apply the currently known evidence about Henry Kissinger's involvement in East Timor against the common law doctrine of "crimes against humanity."

Section III attempts to define the problem of Kissinger and others like him avoiding prosecution as one of a fundamental double standard in international relations. The double standard is enforced by the overwhelming power of the United States vis-a-vis any other country or conceivable bloc of countries. Because the United States is able to project, militarily and culturally, its own vision (and version) of justice on a worldwide scale, the views of the American public are uniquely and disproportionately influential in world affairs.

Further, because the American public suffers from an ability to reshape its history in order to (re)confirm its "innocent and harmless" self-conception, the myth of American innocence becomes the accepted and acceptable history and version of events. This double standard, it is argued in Section III, seems to have several important implications, many of which are unpleasant, including the possibility of further strife and the use of international law as a tool of oppression.

SECTION I: THE CRIME

His own lonely impunity is rank; it smells to heaven. If it is allowed to persist then we shall shamefully vindicate the ancient philosopher Anacharsis, who maintained that laws were like cobwebs: strong enough to detain only the weak, and too weak to hold the strong. In the name of innumerable victims known and unknown, it is time for justice to take a hand. --Christopher Hitchens, The Trial of Henry Kissinger (16)

1. Kissinger's Positions of Power

   To understand why the responsibility for foreign policy actions of an entire nation may be laid at the feet of a single leader or a small cadre of leaders, it is necessary to understand the context in which the actions transpired. More precisely, when assessing his culpability, it is important to understand the...