Register Sunday | June 16 | 2019

Crime and (No) Punishment

A symposium on impunity and international justice

See also: The International Criminal Court on Its Best Behaviour: An Interview with ICC president Philippe Kirsch

Countries in all parts of the world today are confronting an old problem: injustice on a national scale. How to prevent such crimes–and, once they have occurred, how to address them–is by no means an easy task. Human rights organizations like Amnesty International speak of a culture of impunity, wherein states fail to address systematic and gross violations of human rights and allow the perpetrators to walk free. Truth commissions and tribunals have evolved over the past decade to address these failures, culminating in the creation of the International Criminal Court, inaugurated in March 2003. Yet how effective have these forums been in achieving justice? What kind and what depth of wrongdoing can such tribunals reasonably be expected to handle? And will Western countries like the United States submit to international authority and allow citizens to be brought to account? Eight experts in the field offer their perspectives.

—David Webster

Impunity and Accountability
by Erna Paris 

In 1996, when I began to research Long Shadows: Truth, Lies and History, the central question I asked myself was this: How do nations shape the way history is remembered, especially after times of major crisis? My curiosity about this subject began long ago in France, a country I know well, sparked by my special interest in the way France has fashioned its national remembrance of the Second World War.

Because Long Shadows was to be a comparative work, I also explored the remembrance of the Second World War in the Axis countries of Germany and Japan, the memory of slavery in the United States, the way South Africa was dealing with its transition from apartheid to a pluralist democracy and the stunning abuse of the historical record that was then occurring in the former Yugoslavia. What I found everywhere I travelled was an explosive anger among people whose mistreatment at the hands of their own governments had been ignored or else openly lied about.

In France, Holocaust survivors and their descendants had been conflated with Resistance fighters in a myth of French defiance of the occupation, although the truth was that Jews had been deported by the pro-Nazi enthusiasts of Vichy. In Japan I met individuals who were still haunted by the unacknowledged atrocities their country had committed in China as far back as the 1930s, but felt unable to speak publicly within the context of Japanese culture, where those who did raise their voices sometimes found themselves threatened or worse. (Hitoshi Motoshima, the former mayor of Nagasaki, was shot by a right-wing radical after he suggested that Emperor Hirohito might bear guilt for war crimes. He survived.)

In the United States, I met ordinary black people who spoke bitterly about the fact that there was not one official monument in memory of the slavery era—although that period in American history had lasted more than a century. In Belgrade and Sarajevo, the remnants of the opposition railed impotently, and cynically, against the leaders who had robbed many people of their lives, and everyone of their dignity by reducing both past and present to the lowest denominator of lies and thuggery.

I did not set out to study the corrosive effects of impunity or the uses of law and justice to deter future incarnations of Hitler or Pol Pot. Nor did I set out to re-establish the social balance in war-torn countries or to jump-start a process of possible reconciliation. My years of exploration led me directly to these subjects. In the end, I came to believe that accountability might well be the sine qua non of lasting social reconstruction after a major crisis. And that without it—without something akin to justice, in other words—the cycles of revenge and hatred can be endless.

I’ll focus on a few historical perceptions from Germany and Japan, countries that have dealt with impunity and accountability in quite different ways.

Although it took a couple of decades, the German government did acknowledge responsibility for the Holocaust and has attempted to make amends through reparations, memorials to the victims and repeated apologies. In Japan, by contrast, official denial of wartime atrocities persists to this day; in fact, successive prime ministers have continued to make provocative visits to the Yasukuni Shrine in Tokyo where the “souls” of convicted war criminals are worshipped—the most recent visit being just months ago.

I think it is possible to argue that at least part of this difference can be attributed to the differences in conduct of the Nuremberg and Tokyo trials, both of which took place immediately after the war. The Nuremberg court exposed mountains of evidence for the world to see, but more importantly for Germans to see. Verification of this evidence by the top Nazis—most of whom were in the prisoner’s box—made responsible refutation impossible (which is why the Holocaust denial movement has remained marginal). As the political scientist Judith Shklar put it, Nuremberg was a “political trial” in the most exemplary sense—it served to reinforce dormant legal consciousness among Germans and thus to frame the future direction of society. The trials helped Germans who had lived through the chaos of war and propaganda to recognize the underlying structures of the Nazi era and to draw clear conclusions.

Because Emperor Hirohito was never charged with war crimes under the rubric of command responsibility, because the doctors who were experimenting with biological warfare on living prisoners were granted secret immunity deals by the Americans in exchange for their research and because the hierarchy of Japanese society was allowed to continue more or less as before, it was easier for the Japanese to dismiss the Tokyo trials as the imposition of foreign “un-Japanese” values. Today, the debate in Germany—and it remains considerable—is about degrees of national guilt and how long Germans must expect to make apologies and amends. Official Japan, on the other hand, has barely budged. There is still obstinate denial of wartime atrocities at the highest levels, in spite of recent efforts by human rights activists and groups of Chinese victims and their families, now living in the diaspora communities of Canada and the United States, to force the issue.

During the Balkan wars of the 1990s, the United Nations dusted off Nuremberg to lay the foundation of the International Criminal Tribunal for the former Yugoslavia (ICTY), the International Criminal Tribunal for Rwanda (ICTR) and the embryonic International Criminal Court. These human rights initiatives may eventually be seen as among the most important accomplishments of the otherwise horrific twentieth century. International criminal humanitarian law may indeed have a salutary effect on the future.

Let me conclude, though, with a few concerns. We are, I think, at an unprecedented historical cusp. On one side is the extraordinary march, in idea and in practice, of international justice. As of this writing, the ICTY and the ICTR continue their groundbreaking work—though not without problems or criticism, of course. South Africa’s Truth and Reconciliation Commission (TRC) was a daring experiment in fact-finding and public confession. There is now a new TRC in Sierra Leone. The Cambodian government is waffling over a court to deal with the atrocities committed by the Khmer Rouge. Augusto Pinochet was indicted (using Nuremberg law) by a young lawyer in Spain. (He will never be tried, but the fact that he was charged by an outside country set an important precedent.) Belgium has passed a war crimes law under which international leaders can be prosecuted.

Never before has the push for human rights and international institutions of justice been so intense, or their realization so near. At the same time it has been centuries since the world has seen the rise of a power that can rightly be called a world empire: a military and economic force with a global reach and the apparent ability to reshape and reinterpret the law at will.

I wonder to what degree international human rights and courts of global justice can remain viable in this transfigured world of Rome reborn, when Rome is vociferously opposed? The fear that followed on the heels of September 11, 2001, has altered long-established protections in ways that could not have been foreseen. Civil rights in the United States have been eroded by new laws governing wiretaps, Internet spying and other abrogations of liberty. Internationally agreed-on rules governing combat and the treatment of prisoners are dismissed in the name of fighting terror. Secret military tribunals to try people who have been defined as outside the sphere of law are announced first and legislated later.

I am beginning to believe that the emerging clash between newly born institutions of international accountability and the growing reality of unopposed and pre-emptive American power may mark the twenty-first century in ways we can hardly begin to grasp.

Erna Paris lives in Toronto and is currently working on a book about the politics of international justice.

Tribunals and Justice
by Maggie Helwig

When the International Criminal Tribunal for the former Yugoslavia was first established, in the middle of the Balkan wars, I was more or less opposed to it; not because I doubted the magnitude of the crimes being committed, but because I was a young idealist and generally opposed to adversarial, retributive systems of justice. It was also the case that the tribunal, and its sister tribunal for Rwanda, seemed to be (and, in the original intention, probably were) lip service to human rights, meant to assuage the guilt of Western nations who were allowing genocide to play itself out in front of them.

Over time, though, it became apparent that being indicted by the tribunal was one of the few things that seemed to have an effect on the behaviour of certain leading criminals. Radovan Karadzic and Ratko Mladic, in particular, were driven underground, which measurably reduced their influence on the politics of fragile post-Dayton Bosnia. And it is not often enough noted that Slobodan Milosevic surrendered to NATO on Kosovo very shortly after being (far too belatedly) indicted himself. While the sufferings of the civilian population in Serbia were a non-issue to Milosevic, the indictment meant something—no more whiskey-charged negotiations with Richard Holbrooke, no more status as a “guarantor of peace,” but instead a future as an international pariah and fugitive.

So I suppose that the first ground on which I have come to support international legal proceedings for crimes against humanity is a purely practical one: international indictments can be quite useful in controlling and stigmatizing particular individual criminals. Of course, international legal proceedings, whether at ad hoc tribunals or at an international criminal court, are not the only way to achieve this, and perhaps not always the best. The emerging concept of universal jurisdiction for crimes against humanity could give national courts a good deal of power to prosecute, as the Spanish and British courts did with Pinochet (and while Pinochet eventually escaped prosecution both abroad and at home, he will now be required to live as a “mentally incapable” person for the rest of his life and is thus effectively removed from the political arena). Henry Kissinger no longer travels much overseas because of a well-founded fear that he will be served with warrants. And in cases where there is a degree of goodwill on the part of a national government to prosecute its own criminals, “mixed tribunals” of national and international judges, like those now operating in Kosovo, East Timor and Sierra Leone, may be a promising way forward and perhaps more useful in educating the general population. But the force of an international court, the statement that certain criminals are hostes generae humanae, is not to be underestimated.

Has the tribunal for the former Yugoslavia brought any of those involved to a genuine realization of what they have done? There is really no way to know. When Biljana Plavsic pleaded guilty and admitted that the Bosnian Serbs had done terrible wrong, did she believe it or was she lobbying for a shorter sentence? When Milan Kovacevic admitted to journalist Ed Vulliamy that he couldn’t sleep at night and then died of a heart attack in his cell shortly after Vulliamy’s testimony, had he faced the reality of Omarska? When Nikola Koljevic and Slavko Dokmanovic killed themselves, was it because they understood and could no longer look at themselves in the mirror? Only those people and whatever God they believe in can ever answer that question.

And this leads us to another problem. In situations of massive crimes against humanity, there is invariably widespread involvement and responsibility throughout entire populations. No court could ever prosecute all those who committed crimes in the former Yugoslavia or Rwanda, not to mention the people who failed to protect their neighbours, the people who appropriated the houses and goods from their “ethnically cleansed” fellows or the ideologues of nationalism such as writer Dobrica Cosic.

Sometimes, this is where truth commissions come into their own. But the truth is that in most cases we have not found a way to deal with this problem, and as a result hatred continues to fester in many postwar situations. In the Bosnian elections last year, Serbs, Croats and Muslims all voted massively for their respective nationalist parties, installing a parliament frighteningly like the one they had when the war began in 1992. In Serbia, the ever admirable Radio B92 has for some time now been airing what they call “Truth and Reconciliation Radio,” talking about the need for Serbs to come to terms with the crimes they committed—not only those committed against them—but its influence on public opinion has been minimal. When the prosecution in the Milosevic trial started bringing forward plausible and convincing witnesses, most of the Serbian media stopped broadcasting the sessions. And the longer people like Karadzic and Mladic remain underground and at liberty, the more they become romanticized Scarlet Pimpernels to the general public.

These and many other extremely pressing questions face us today. For instance, given that the legitimacy of any legal system depends upon neutral universality, how can the International Criminal Court be seen as fair if the world’s most powerful nation secures for itself an effective immunity against any prosecution? And can the principles of international law survive the “war against terrorism”?

International humanitarian law is still very much a work in progress.

Maggie Helwig's second novel is set in Bosnia and at the Hague war crimes tribunal and will be published in spring 2004 by Knopf (in Canada) and by Chatto & Windus (in the UK).

Truth and Reconciliation in South Africa
by Gillian Slovo

My interest in South Africa’s Truth and Reconciliation Commission (TRC) is political and also personal. My mother, Ruth First, was assassinated by a parcel bomb sent to her in Mozambique by the South African security forces. My father, Joe Slovo, helped to create the commission that would eventually permit her assassin to go free.

In the years between 1990 and 1994, while the African National Congress (ANC) and the National Party, the architect of apartheid, were negotiating their peace, it looked as if the country might be destroyed. More people were in fact killed in political violence in those four years than in the previous thirty. With fears of a right-wing revolt, possibly backed by the might of the South African army, what was at stake was whether the new South Africa would ever be born.

My father, Joe Slovo, was part of the ANC negotiating team. He and his comrades had to wrestle with the very ideal that had sustained their liberation movement during its long years of exile and imprisonment—the fantasy, if you like, that one day there would be victory, that there would be judgement, that they would oversee the new South Africa.

The sticking point was clear. The then apartheid government said, yes, we know that the end has come. We are prepared to give up our absolute power. But only if you guarantee that our politicians, our policemen and our army officers will never be put on trial for the things that they did. Without the means of wresting power from the apartheid government, the ANC had to agree to this.

As a result, the idea of the TRC was born. The National Party wanted a blanket amnesty. The ANC refused this. The final compromise was that amnesty would be granted only to individuals, and only after individual application. This was the nature of South Africa’s agreement: the transfer of power without a prior settling of historic rights and wrongs.

Thus, part of the longing for justice that had always fuelled the liberation movement had to be given up to achieve the success of the liberation movement. And yet, within the agreement to do this lay the seeds of another idea: that a political compromise could nevertheless be turned into a project for peace, truth and its own special form of justice. Alongside the amnesty provision, the ANC insisted on two more conditions: that the TRC organize hearings that would allow people to speak of what had been done to them and that it also help settle the issue of reparation for past wrongs.

The TRC’s great virtue, it was suggested, was to exchange retributive justice (or legal punishment) for restorative justice: a justice that would direct attention to the needs and participation of the victims and, in that way, help repair the damage done.

As for the hearings themselves—these victims’ hearings—well, they were shot through with accounts of what had happened to individuals and with lamentations of pain and suffering. People had come to mourn. To be heard. To put their truths on record. There lies the paradox: the wonder of the TRC, and the thing for which it is best known, resides not in its original purpose—to provide amnesties—but in its by-product, the victims hearings.

But what of that other aspect of the TRC—the one that gave it birth—the granting of amnesties? Well, here we have a different tale where, once again, nothing is quite what it may seem.

Application for amnesty for gross human rights violations, including murder and torture, was voluntary. The provision of amnesty—with its resulting negation of a victim’s right to legal justice—was inserted into the new South African constitution largely in order that the politicians of old, as well as their state employees, would not find themselves standing trial. In practice, however, it was the henchmen rather than the politicians, the junior police rather than their commanders, who ended up jumping through the TRC amnesty hoops.

One of the requirements for amnesty was that applicants give full disclosure of their actions, or “full disclosure of the whole truth.” Behind this phrase, it seems to me, lies the dubious assumption that murderers and torturers can know the truth. And that, if they do, they will risk their sense of their own worth, their reputations and their contact with those they love by telling it.

As for reconciliation—well, here is another area of contention, possibly the most fiercely contested and the most misunderstood.

In my view, one of the hearings’ most distasteful features was the occasions when the victims were encouraged to forgive those who caused them such great harm. This, I thought, was a political compromise being turned into a forced embrace of old enemies, in which the victims, who had already given up their right to legal redress, were always asked to make the greatest sacrifice.

Not that the TRC ever said that victims must be made to reconcile with their perpetrators. Instead, the argument ran like this: the reconciliation sought by the TRC was not one between named individuals, but rather an attempt to involve the whole of society in its task of coming to terms with a terrible past. The TRC, its advocates continued, was only one facet of this process. Only a real future that redressed these inequalities, that provided social justice, could ever really repair the past.

The TRC process, especially its victims hearings, did undoubtedly bring a sense of relief at least to some of its participants, a kind of closure. People were given the chance to be heard in public. They spoke of the years they had borne their pain and their grief in isolation and in silence and of their need to let their country know what it was that they, and their loved ones, had endured.

But what of those other South Africans—the vast majority of the white community who, although they might not have been actively involved, were witness to what happened, benefited from it and were therefore complicit?

I am reminded of a moment in 1997 when I was in South Africa to talk about my then recently published family memoir, Every Secret Thing. The ANC government was then in its third year and the TRC in full voice. I encountered a large cross-section of the white community. What struck me most about those meetings was a feeling articulated by an Afrikaner journalist, a woman of roughly my age: “I know it must have been hard for you to be your parents’ daughter. I know that there are many costs to be paid by the child of heroes. But imagine how it feels to be me: to have to look at my parents, and to ask of them—how could you? How could you have witnessed all this and said nothing? How could you have let it happen?”

Here is an indication of the extent of the TRC’s success: it set itself the task of facing what had happened and tried to make sure that the people of South Africa listened. Not everybody did, of course. There were those who told me of driving with the radio on and of being so affected by what they heard that they had to stop their cars and vomit. But there were also those who turned off their radios, and their televisions, and spoke of other things. And yet even for them, I do not doubt that the drip drip of the TRC was powerful.

How did it affect me? Personally, if anything, it increased my feelings of hatred. This may sound strange. But beforehand, I felt that what happened to my mother was purely political. As a result of observing the amnesty application of my mother’s killers, I came to see that it was also personal: they were murderers and they were motivated by a form of personal hatred as all murderers are. The reconciliation that I experienced was with what happened, not with the perpetrators.

And this for me is the important thing about a TRC, that it helps a whole society reconcile itself to its past, without ignoring or denying it.

Gillian Slovo is a novelist living in London. Her eleventh book, set in the Leningrad of the 1930s, will be published in March 2004.

Cambodia: Lessons that Remain to be Learned
by Craig Etcheson

A revolutionary movement known as the Khmer Rouge seized state power in Cambodia on April 17, 1975. Over the course of the next three years, eight months and twenty days before they were driven from power, the Khmer Rouge carried out what was arguably the most radical revolution in history. In their zeal to totally remake society, they emptied all cities of their inhabitants, abolished money and markets, separated family members, communalized all aspects of life and transformed the entire population into a nationwide slave-labour brigade. Somewhere between 2.2 and 2.5 million people lost their lives in this brief revolutionary frenzy, approximately half of them by execution. The death toll amounted to one-quarter to one-third of the entire population. Every family lost loved ones. The survivors were shattered, and the entire nation remains deeply wounded today, a quarter-century later.

Though the thirty-year-long war in Cambodia finally ended in 1999, the country has a long way to go to achieve anything resembling national reconciliation. There has never been any judicial accounting for the leaders who wrought such mayhem on the Cambodian people. The reason for this lack of accountability is simple: politics. Very few of today’s leaders in Cambodia have clean hands. Moreover, all of the world’s so-called great powers involved themselves in Cambodia’s thirty-year war in one way or another.

Meanwhile, the Cambodian people continue to suffer the consequences of the Cambodian genocide. Surveys have consistently shown that about 80 percent of the Cambodian people want the top leadership of the Khmer Rouge to be brought before a court of law to answer for their crimes. Yet, when one probes beneath these surface attitudes, it emerges that what most of the people really want is not so much for the perpetrators to be punished. What they want is for the authors of the Cambodian genocide to be made to acknowledge their responsibility for this staggering catastrophe and to give some kind of answer to the one question that haunts the mind of every Cambodian who lived through the genocide: Why? Why did the Khmer Rouge do it? Why was our country destroyed by its own children?

We know who committed these crimes. They are people like Nuon Chea, the ideological guru of the revolution and deputy head of the Khmer Rouge; Khieu Samphan, who was the Khmer Rouge President; and Ieng Sary, the deputy prime minister and foreign minister. These individuals, along with the thousands of others who carried out their orders for the genocide, today live freely in Cambodia alongside their erstwhile victims. Far from having expressed remorse, they continue to deny that it even happened.

A woman in Cambodia’s Kandal province remembers the Khmer Rouge commune chief who sentenced her husband to execution and her to more than a year of torture in an extermination camp. He now lives just a few doors down the street from her. Tears welling in her eyes, she says, “When I see him driving by, it makes me sick with memories.” A few years ago, she attempted to reach out and reconcile with this man, but he denied ever having ordered anyone’s arrest and accused her of attempting to stir up trouble.

Some wonder, why bother? Why bother to trouble ourselves with a few discredited old men who are gradually being stripped of their ability to kill again? The answer is clear. Crimes against humanity are the worst crimes; they are worse than crimes against an individual and worse than crimes against the state. These are crimes against all of us, collectively, crimes against you and me. When the most monstrous crimes humans have ever conceived go unpunished, why should Cambodians worry about lesser crimes? Why, indeed, should any of us?

What is wrong with insulting my elders and ignoring their words? The Khmer Rouge insulted elders in my village and then killed them, but no punishment was ever meted out for that. What is wrong with threatening to kill a taxi driver in order to possess his motorcycle? The Khmer Rouge stole every motorcycle and everything else in the entire country, and no one was ever punished for that. What is wrong with intimidating political opponents, even killing some of them? The Khmer Rouge killed all of their opponents, and a goodly number of their supporters; they were never punished. Any crimes I could commit will be less than those committed by the Khmer Rouge. They got away with it, so why shouldn’t I also do as I wish? This goes to the root of the problem of impunity.

Until the worst crimes are accounted for in some fashion, lesser crimes will be relativized. Until the matter of Khmer Rouge impunity is formally addressed, there will always be a ready excuse for the anarchy in Cambodian society: the Khmer Rouge were worse. Until the worst perpetrators are brought before the law, there can be no rule of law in Cambodia.

Part of the problem, I believe, is that the top Khmer Rouge leaders do not really know the magnitude of the chaos they initiated and supervised. They need to learn a few things. The most vicious Khmer Rouge general, Ta Mok, says hundreds of thousands “died,” yes, but not millions. He is wrong. He needs to learn that the number of executions passed one million and the total dead more than two million. He needs to learn that when you set in motion a killing machine, there is no telling when it will stop.

On July 10, 1976, Khmer Rouge Foreign Minister Ieng Sary explained to his underlings at the Cambodian foreign ministry that up to “5 percent” of the people “are traitors” and that these “pests” must be exposed and exterminated. Ieng Sary needs to learn that when you dehumanize people, when you describe them as pests or microbes, you lay the essential foundation for genocide and crimes against humanity.

Khieu Samphan says that what was done by the Khmer Rouge was necessary to save Cambodia from being swallowed by the aggression of neighbouring Vietnam. Khieu Samphan needs to learn that when patriotic vigilance is transformed into racial paranoia, pogroms and military aggression, not only is it an international crime, but it is also a totally counterproductive foreign policy.

The late Khmer Rouge general Ke Pauk said that he was just following orders when he “enforced the discipline” of the organization. He needed to learn that in a civilized society, following illegal and immoral orders is a crime in and of itself, even if refusal to do so would put your own life at risk. All the people of Cambodia need to learn this, too, if Cambodia is ever to return to the ranks of civilized nations. It is a lesson all humankind should learn.

Would a genocide tribunal help Cambodians, and the rest of us, learn any of these lessons? It is hard to say. But it is certain that more needs to be done to help the Cambodian people recover from the historic tragedy that has befallen them, to teach those generations coarsened by decades of war the lessons of how to live together in peace and reconciliation. For now, sadly, those are lessons that remain to be learned.

Craig Etcheson is in Washington, DC, finishing his latest book, Crimes of the Khmer Rouge.

Henry Kissinger: Peacemaker or War Criminal?
by Michael Schmitt

Henry Kissinger: former US secretary of state, elder statesman par excellence, coveted dinner guest, quick-witted public lecturer, widely sought consultant and wise man of international relations or pathological liar, pitiful and odious schlump and wanted war criminal? Surely this cannot be the same man.

Let us examine the outrageous claim that Kissinger merits the label “war criminal” and ought not to be incessantly consulted on realpolitik, but prosecuted for the version he practised.

Bangladesh: While the genocide against Bangladeshis was well underway, Kissinger and Richard Nixon, wilfully ignoring the warnings of US diplomats on the ground, assured the continuation of the flow of US arms to the bloodthirsty military regime of Pakistan.

Angola: In 1975 the US intervened in Angola several months before Russian and Cuban troops entered the conflict area. Kissinger ordered the CIA to rewrite documents to justify his disastrous policy, claiming that the US intervention took place after the Russians and Cubans had arrived.

East Timor: In the same year, Kissinger and Gerald Ford visited General Suharto in Jakarta. Recently declassified government documents prove what Kissinger denied in his rather silly and self-revealing memoirs: They gave the green light to Suharto’s invasion of East Timor and by implication approved the ensuing genocide. In violation of US law, US weapons continued to flow to the Indonesian army while the death toll mounted.

Chile: Kissinger’s role in the deliberate destabilization and eventual overthrow of Salvador Allende’s government is well documented. His justification for this act of state terrorism par excellence: “I don’t see why we need to stand by and watch a country go communist due to the irresponsibility of its own people.”

Indochina: In interviews I always draw attention to and highlight the gravity of the bombings of Cambodia and Laos, which resulted in several hundred thousand casualties. Kissinger has praised himself as the architect of the expansion of the Vietnam War into Cambodia and initiator of the orders to intensify the bombings of Laos. In Cambodia, Kissinger’s realpolitik led to the partial destruction of the fabric of society and paved the way for the seizure of power by the genocidal Khmer Rouge. More bombs were dropped on Laos than were dropped on Germany and Japan combined during the Second World War. Apart from the direct casualties, remnants of US cluster bombs have killed more than eleven thousand Laotian civilians in the last twenty years.

 

In an interview a few years ago, Kissinger was asked, “What if the United States had allowed Vietnam to go communist after World War II?” The great man replied, “Wouldn’t have mattered very much. If the Vietnam domino had fallen then, no great loss.”

No great loss.

In June 2001, Kissinger was asked to Paris to award the UNESCO peace prize to the otherwise laudable Mary Robinson, then UN High Commissioner for Human Rights. During his stay in Paris, Kissinger was summoned by a French judge to answer questions concerning his knowledge of Operation Condor, the 1970s Latin American governmental killer network. He immediately left, and asked the US embassy to deal with this “contemptible” attempt to interrogate him regarding state-sponsored and US-supervised terrorism.

“Condor se escribe con K”—Condor is spelled with a K—a Chilean friend and fellow campaigner likes to say. A group of victims and human rights activists in Chile filed a criminal complaint against Kissinger on September 11, 2001, the twenty-eighth anniversary of the US-sponsored overthrow of the democratically elected Allende government. On the previous day, another promising legal action had been taken in Washington by the family of General Rene Schneider, the Chilean general killed in 1970 at the behest of the CIA—the supervising committee of which was chaired by National Security Advisor Henry Kissinger at the time. This was followed by a second suit in November 2002, alleging that Kissinger knowingly provided practical assistance and encouragement to the Chilean repressive regime before, during and after the coup, with reckless disregard for the lives and well-being of the victims and their families. Both suits are based on declassified US government documents.

Activists in Ireland have tried to perform citizens’ arrests, and the British human rights lawyer Peter Tatchell tried to obtain an arrest warrant for Kissinger’s Indochina crimes. Lawyers in other states are currently examining whether their countries’ laws on universal jurisdiction will allow them to bring suit against Kissinger.

Even the opposition of the US to the recently established International Criminal Court is seen in the context of these efforts to bring Kissinger to justice. The New York Times reported, “In the forefront of the Americans’ minds are the continuing assertions from various quarters that Henry Kissinger, the former secretary of state, should be tried as a war criminal for his alleged actions in Indochina, Chile, Indonesia and Cyprus, all of which his spokesmen have dismissed out of hand” (September 7, 2002).

Millions of victims of Henry Kissinger’s pernicious foreign policy tarry in the waiting room to justice and redress. In the name of justice, let us seize upon the opportunity and put the historical records of Kissinger’s realpolitik straight.

Michael Schmitt is the coordinator of the International Campaign against Impunity (www.icai-online.org) and editor of Kissinger Watch.

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A Thirst for Justice
by Marcus Gee

My own feelings on this subject spring mainly from a series of articles I wrote in The Globe and Mail last year about the movement for international justice. Called “Evil on Trial,” it told the stories of three individuals who had been victims, directly and indirectly, of human rights crimes.

The first was Souleymane Guengueng, a Chadian detained and tortured by the henchmen of the dictator Hissène Habré. He survived his ordeal—crammed into a cell with dozens of others, forced to lick the moisture off corpses to survive—and went on to document what had happened to him and others. His documentation is now the basis of an extraordinary prosecution by Belgian authorities under their sweeping and controversial universal jurisdiction law.

The second was Ragnar Hagelin, an Argentine of Swedish descent whose teenaged daughter was shot during the country’s “dirty war” by the notorious torturer Alfredo Astiz, who is still at large. Mr. Hagelin has been trying for a quarter of a century to have Astiz pay for his crime.

The third was Joyce Horman, whose story is told in the Costa-Gavras film Missing. Her husband Charles was abducted by the Chilean military during the Pinochet coup and buried in a wall. She wants to find out who did it and whether, as she suspects, US authorities were complicit in Charles’ death.

What struck me first about all three victims was how raw their emotional wounds remained despite the passage of time. Within minutes of our meeting, Mr. Hagelin was weeping over his daughter’s fate, and this is a man who has told her story to the media countless times. Mrs. Horman, too, wept when I spoke to her—fully thirty years after Charles’ disappearance.

And yet none of the three seemed bitter or vengeful. If they wanted justice, it was not so much to see the perpetrator suffer, but to put on record what had happened. It is the truth that they really want—not an eye for an eye, not just the symbol of a trial, but the truth. They want to be able to say to the world, “Look. This is what they did to me (or my husband or my daughter). It was wrong and I want everyone to know it.”

That thirst for truth is what has fuelled the recent revolution—and there is no other word for it—in international justice. To see so many people in so many countries rising up and demanding the truth about their past is inspiring beyond words. Look what has happened in Chile, where it was assumed for so long that Pinochet and others like him were home free; look at Sierra Leone, where we now have a court to look at that country’s horrors; look at what is happening even in benighted Chad, where victims have finally found their voice.

Of course, there are all sorts of questions that still hang over the justice movement and all sorts of doubts about whether it will ultimately succeed. The International Criminal Court is a wonderful accomplishment, but it is easy to wonder whether, without the participation of the United States (Erna Paris’ new Rome), it can do much. Attempts to bring the Khmer Rouge leaders to book in Cambodia have faltered. Pinochet is still, after all that has happened, a free man.

For all that, I still think it is permissible to look at what has been accomplished over the past decade and to simply say “Wow!” For generations, mass murderers, torturers and their ilk enjoyed all but perfect immunity. If you murdered one person, you went to jail; if you murdered ten thousand, you walked away. Now all that is beginning to change. Wow!

Marcus Gee is an international affairs columnist for The Globe and Mail. He has won two National Newspaper Awards for his commentary and covered conflicts ranging from the war in Kosovo to the chaos surrounding the overthrow of Indonesia's President Suharto.

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Impunity in Chile
by Joan Simalchik

Seventeen years under the Pinochet dictatorship has presented Chile’s transition to democracy with a particular set of problems: organized violence, institutional lies and social polarization. These three elements have woven a complex web of individual and social denial, and created what Martin Baro (the Salvadoran psychologist and Jesuit assassinated in 1989) named “circles of silence.” Failure to address this dimension has undermined Chile’s efforts to date to forge a stable democratic society.

Patricio Alwyn, a Christian Democrat, was elected president in 1989. General Pinochet remained commander-in-chief of the Armed Forces, though. The military’s constitution, along with the 1978 Amnesty Law granting impunity to perpetrators of human rights crimes, remained the law of the land.

The ambiguous framework in which Alwyn’s transition government was situated affected its ability to manoeuvre. By accepting the terms and conditions stipulated in the regime’s 1980 constitution, the opposition pledged to operate within the confines of its authoritarian principles. For example, under this constitution, the president does not have the power to remove the commander-in-chief of the armed forces. Alwyn established a Truth and Reconciliation Commission and promised in his inauguration address to deliver the whole truth and justice “as far as possible.” While the Truth Commission Report recognized wrongdoing and the suffering caused by the same, no admissions of guilt were forthcoming and conditions of atonement were not prescribed. The perpetrators were not named.

Chile’s second transition president, Eduardo Frei, was so far removed from the politics of human rights memory that he refused to meet with members of the Association of Relatives of the Disappeared. A plan was launched to build Santiago’s new garbage landfill near the site at Lonquen where bodies of disappeared prisoners were discovered in 1978. The permit was temporarily withheld while environmental, not human rights, concerns were investigated. Last year, in his State of the Union address, the third transition president, Ricardo Lagos, failed to mention human rights at all.

Pinochet’s arrest in London in October 1998 punctured the bubble of impunity. This could have been a turning point for Chile, but the transition government defended its by then senator and demanded that he be returned to Chile, not tried by a foreign power.

After cataclysmic natural disasters, such as floods and earthquakes, communities come together to commit resources, direct rebuilding efforts and learn from their mistakes. “Unnatural” disasters require similar acknowledgement on a national level, the same psychosocial rebuilding and effort to learn.

Joan Simalchik teaches at the Ontario Institute for Studies in Education (OISE) and the University of Toronto. She is the Canadian member of the International Rehabilitation Council for Torture Victims and the founding executive director of the Canadian Centre for Victims of Torture.

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Summing Up
by Maggie Helwig

It’s been an interesting month for international law. At the International Criminal Tribunal for the former Yugoslavia, Biljana Plavsic was sentenced to eleven years imprisonment—a decision which managed to leave almost everyone dissatisfied, with many Serbian nationalists believing she should not be jailed at all and traumatized Bosnians upset by such a relatively short sentence for crimes that in a national criminal court would probably have incurred a series of life sentences. Additionally, the first Kosovar Albanian suspects were indicted and arrested; and the notorious Vojislav Seselj turned himself in, while promising to “blast [the tribunal] to pieces” and “destroy” it, apparently with the force of his personality. In East Timor, the Serious Crimes Unit has issued an impressive package of indictments against those accused of planning and controlling the 1999 militia rampage, indictments reaching as high as General Wiranto, while the Special Court in Sierra Leone has also begun to indict high-ranking individuals. The Belgian Supreme Court ruled that a genocide lawsuit filed against Israel’s Ariel Sharon could proceed once he is no longer a sitting prime minister—a ruling which was then almost immediately overturned by the Belgian Senate, in a disturbing blow against universal jurisdiction laws.

But perhaps most significantly, the International Criminal Court [ICC] has finally opened, after the election of eighteen highly competent and respected judges. As I write this piece, I am looking at pictures of Canada’s Philippe Kirsch, sworn in as the president of the ICC, alongside such judges as South Africa’s Navanethem Pillay and Costa Rica’s Elizabeth Odio Benito.

And at the same time, I am reading newspapers in which intelligent people are calmly debating whether torture is acceptable in pursuit of a perceived good.

They are employing arguments, interestingly enough, which are almost word for word the same as those voiced by Augusto Pinochet during his years in power. And it is quite arguable that the mere existence of this debate, unthinkable two years ago, is a sign that we have already lost, that when torture is admitted as a subject of polite discussion, international law has been wounded, perhaps terminally.

And it is not only this. It is, for instance, the inconclusive but disturbing report that at least one prisoner in US custody at Bagram has died partially as a result of “blunt force injuries,” or the report that the US “has access to” the young sons of Khalid Shaikh Mohammed.

The United States, a country vastly more powerful than any other in the world, is arguing that its own interests of state, if threatened, must trump justice everywhere and always and is openly and aggressively campaigning to destroy the ICC (and, more quietly, to shut down the ICTY and the ICTR as soon as possible). One Canadian diplomat calmly observed that the United States is “going through a phase,” and it would be nice to be that sanguine about it. But even if a new administration comes into power that is more kindly disposed to the ICC, there are now mutually binding treaties in place between the United States and nearly fifty countries—including Rwanda, Afghanistan, Sri Lanka and Israel—obligating all these countries never to extradite any of each other’s citizens to face international justice.

But the aim of the ICC—a high aim, maybe an impossible aim—is to spread at least a hint of this slow process beyond the borders of particular countries to our whole war-ridden world.

On the same day that the ICC opened, a group of NGOs gathered on the beach in The Hague to mount a symbolic defence of the Court against the US (which recently passed a bill allowing for, among other things, an invasion of Holland to free any US citizens who may be threatened with international justice). Behind a barricade of sandbags, ICC supporters raised a number of national flags.

Among them was the flag of the United States itself, raised by Benjamin Ferencz, an American citizen, World War II veteran and former Nuremberg prosecutor, who issued a statement saying that as someone who had landed at Normandy in the uniform of the US Army, he felt an obligation, even now, to fight for the principles he had defended then.

The fragile and implacable presence of Ben Ferencz is not much to set against, say, the ongoing torture of prisoners in the jails of dozens of countries. But Ben Ferencz, and Navanethem Pillay, and all those who have come forward to speak for justice, form a persuasive set of reasons not to give up hope.

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Afterword: Iraq
by David Webster 

This symposium has been taking place against the background of war in Iraq. Reading these essays on the one hand, and watching television war coverage on the other, I am struck by the way the language of war crimes and of international humanitarian law has pervaded this war as it has no other before. American officials called Saddam Hussein a dictator guilty of crimes against humanity; peace rallies denounced George W. Bush as a war criminal. The language and assumptions of international justice were always at the centre.

Whatever we think of the war, Iraqis are now emerging from the trauma of repression and conflict. Given the centrality of Iraq to US global policy, it matters a great deal how the questions of postwar justice are handled. Erna Paris began this discussion by posing an emergent clash between advancing international humanitarian law and the “new Rome” of American power. While Marcus Gee marvels at the swift advance in accountability and international justice, he admits that the American attitude to it will be crucial. Has the irresistible force of international justice met its immovable object? Or has the new Rome met its match in the Rome statute that established the International Criminal Court? Iraq may well be the battlefield for this clash.

There will have to be reconciliation. As Joan Simalchuk writes, it may not be revenge that the survivors of crimes against humanity need so much as an accounting. For Iraq to be made whole again it will need a Truth and Reconciliation Commission. Horrors like the hundred thousand Kurds dead as a result of the Anfal campaign of 1988 need to be aired and heard by all citizens. Ordinary Iraqis would be right to emulate what Gillian Slovo tells us was the great achievement of the South African TRC: letting ordinary people tell their own stories, letting them be heard at last.

A triumphalist America may be inclined to set up military tribunals to deal with war crimes on its own, without the involvement of the ICC. Although universal jurisdiction might apply, it would still bear the mark of victors’ justice, and thus offer no healing. There is also the risk that just as Indonesian offenders retain impunity for their crimes in East Timor, American soldiers could be immune to international prosecution for any crimes in Iraq.

Another option is mixed tribunals, bringing together international and Iraqi judges. This is what has been done in Kosovo, and attempted unsuccessfully in Cambodia. As Craig Etcheson has noted, this failure has let many Khmer Rouge leaders walk free. This will not happen with the top figures in the Ba’ath regime, but will lower-ranking offenders be given impunity? Who will sit on mixed courts? Will international judges come from all countries, or only the handful of “willing” supporters of the US war? Will Iraqi judges be chosen from the remnants of the Ba’ath regime’s legal system, or from among opposition exile figures? Who can be fair, and deliver reconciliation?

The logical choice is to follow the model of Nuremberg by establishing a special tribunal like those for Yugoslavia and Rwanda. An International Criminal Tribunal for Iraq might even be able to heal divisions at the UN, just as a resolution calling for an indictment of Saddam Hussein was able to gather unanimous support in Canada’s fractious Parliament.

If the advance of international humanitarian law is to be truly international, it will have to go beyond individual countries and become truly international. Here again the problem of impunity for the most powerful country arises. Michael Schmitt uses Henry Kissinger as an example. Will a full accounting lead back to some unpleasant truths for Washington, and if so, will it be permitted? On the outcome of this clash, perhaps, hangs the future of international humanitarian law.

David Webster is a graduate student in history at the University of British Columbia.

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