One senses someone who has started not to sleep so easily at night. Although a man of substance and powerful friends with might on his side, he now has begun to think that perhaps the unexpected may happen. And that would render him not only miserable and anguished -- detained far away from family, friends and comforters -- but would do much to undermine the reputation he thought he had secured in the annals of American foreign policy.
The man is Henry Kissinger, former US secretary of state, whom his legion of critics charge with unnecessarily prolonging the war in Vietnam, precipitating neighboring Cambodia into physical and political ruin, encouraging the overthrow of a democratically elected government in Chile and sundry other monstrous political offences. These other offences, say critics, brought about the deaths of whole swathes of populations and the suffering, in particular torture, of many thousands.
His defense, although oblique, is telling and can be found in the current issue of Foreign Affairs. He has done it by writing a rather inept attack on the law of "universal jurisdiction;" ie, the concept that a country must prosecute (or extradite) those accused of crimes against humanity, even if they are not citizens of that state and their crimes were committed elsewhere.
After Pinochet and Milosevic, does Kissinger see the writing on the wall for himself? Could some lone magistrate somewhere -- another Baltasar Garzon -- set the ball rolling toward him? Could he be picked up while attending some academic conference in France, or giving political advice on behalf of Kissinger Associates to the government of Taiwan or to multinational companies in Malaysia?
His government doubtless would pull out the stops to get him released, but meanwhile he might have to spend some unpleasant months in detention. All these fears are writ large in this article. It doesn't take a shrink to analyze he is voicing worries close to his own heart.
"In less than a decade," Kissinger writes, "an unprecedented movement has emerged to submit international politics to judicial procedures. It has spread with extraordinary speed." Then he goes on to analyze the concept of universal jurisdiction, which, he maintains, is "of recent vintage. The sixth edition of Black's Law Dictionary, published in 1990, does not even contain an entry for the term." Yes, indeed the human rights movement has accelerated at a great pace the last decade. But no, universal jurisdiction has been in the works for some time.
Indeed, writing in this column way back in the early 1980s at the time of the formulation of the UN Convention Against Torture, I reflected on the novelty, then being discussed, of universal jurisdiction and observed how, if the treaty were to be accepted, the well known Argentinean torturer Captain Alfredo Astiz could be picked up if he decided to travel to, say, London or Paris. Ironically he was finally arrested on Monday in his hometown of Buenos Aires by the local police acting on an Italian warrant.
The most remarkable attribute of the Convention against Torture, complete with its concept of universal jurisdiction, is that it was ratified by the administration of former US president Ronald Reagan and the administration of former Chilean general Augusto Pinochet. Kissinger should also look up a case in 1981 of the New York Court of Appeals. It approved a civil action brought under the US Alien Tort Statute by the Filartiga family, whose young son had been kidnapped and tortured to death by a Paraguayan police chief who subsequently decided to reside in the US. The court had little hesitation in ruling that "deliberate torture perpetrated under color of official authority violates universally accepted norms of the international law of human rights, regardless of the nationality of the parties."
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