Although it may appear that the aftershocks of September 11 have somewhat deposed the discourse of human rights and international law and replaced it with that of law and order, there is still a great deal to fight for. If anything, in fact, the new context makes it more urgent that there be solid rules of international criminal evidence and reliable institutions of international law. The Bush Administration is opposed to the International Criminal Court that is now taking shape, which meant that when the President was asked what he intended to do about the perpetrators of the recent aggression he had to embarrass himself by resorting to his least attractive "don’t mess with Texas" mode, and babble about "wanted dead or alive" like a cartoon sheriff.
The military option has the effect of overshadowing all others, and it is of course true that the Nuremberg trials and the Bosnia, Kosovo and Rwanda tribunals all required a bit of a shift in the balance of power before they could occur. Nonetheless, here might have been the first opportunity in history for an American administration to say, in advance of any meditated action, that it would attempt to bring the common enemies of humanity before a properly constituted tribunal. And the chance was thrown away in advance.
The most vocal public opponent of the principles of "universal jurisdiction" is Henry Kissinger, who has a laughably self-interested chapter on the subject in his turgid new book Does America Need a Foreign Policy? (a volume, incidentally, that if it had any other merit might be considered as a candidate for title of the year). This chapter was also solemnly recycled by the establishment’s house organ, Foreign Affairs. It was utterly nauseating to see Kissinger re-enthroned as a pundit in the aftermath of September 11, talking his usual "windy, militant trash," to borrow Auden’s phrase for it. I caught him talking to John McLaughlin and looking on the bright side by saying that the mass murder had strengthened something called the Western alliance. Say what you will about our Henry, he can find the joy in any nightmare.
He may also have had a personal reason to take comfort from the hideous events of that day. On September 10, he was hit with a lawsuit that was filed in federal court in Washington, DC. The suit, which is brought by members of the family of the late René Schneider, accuses him and his co-defendant former CIA chief Richard Helms, and some other members of the Nixon Administration, of "summary execution"–in other words, of murder and, by implication, international terrorism. (Gen. René Schneider, head of the Chilean General Staff in 1970, was resolutely opposed to any military intervention against the elected government of Salvador Allende. He was therefore marked for death by Kissinger and others. A fairly full account of the background to the case, and of the newly declassified documents that support and underpin it, can be found in chapters five and six of my book The Trial of Henry Kissinger.) To summarize the story briefly, Richard Nixon told Kissinger and Helms to commence the destabilization of Chile before Allende had even become President. They were instructed to employ the transition period between the 1970 election and the confirmation of the results by the Chilean Congress. They were also told not to be too choosy about methods. They selected as their proxies a militarist gang that had once tried to overthrow a Christian Democratic government from the right. Fascists, to be plain about it, and proven criminals.
The lawsuit, which will produce details of the recruiting of international death squads, the use of US diplomatic pouches to smuggle illegal arms and money, and of other terrorist techniques, made it into the Washington Post on September 11 but has gone largely unremarked since then. Let’s not complain about that for now; the point is that it is in the system. It joins several other legal initiatives against Kissinger, which now include a similar complaint filed in Chilean courts, a request from the judge in the Pinochet case for information from Kissinger about the murder of the US journalist (and sometime Nation contributor) Charles Horman, a request for Kissinger’s testimony from Judge Rodolfo Corral in Buenos Aires (this concerns Kissinger’s knowledge of the coordination of state terrorism known as Operation Condor) and a summons issued by Judge Roger Le Loire in Paris, requesting his attendance at the Palais de Justice to answer questions about several Frenchmen "missing" from the Pinochet years. In default of a working system of international criminal law, in other words, a number of initiatives are beginning to supply a framework of precedent, of which the most celebrated is obviously the arrest of Kissinger’s friend Augusto Pinochet himself.
This is good news in a dark time. It joins a number of other legal initiatives, including one for compensation in the case of Clinton’s criminal rocketing of a pharmaceutical factory in Sudan in 1998. The most common objection I have met with, in my campaign to get Kissinger into the dock, is that "all this was a long time ago." I think that opportunistic, ahistorical objection may now dissolve. The question of international viciousness and the use of criminal violence against civilians is now, so to speak, back on the agenda. It’s important that we make our opposition to such conduct both steady and consistent.
Incidentally, suing Kissinger can also be fun. Having refused comment on my book for some time, and having broken his silence only to say that it was "contemptible" and that the charges were "old," our Henry suddenly announced that I was a Holocaust denier. I was moved by this to send him my first-ever lawyer’s letter. His attorneys immediately replied by saying that they would not repeat the allegation and then, after some more correspondence, sent me a very grudging and graceless but nonetheless unmistakable retraction. Since some of my more extreme ill-wishers sometimes repeat Kissinger’s charge, I have amassed the whole background to it and the complete refutation, and you can visit it if you care to by directing your trusty web browser to my site at www.enteract.com/~peterk.