Acknowledging Our International Criminals: Henry Kissinger and East Timor

Mark, Brandon, Denver Journal of International Law and Policy

[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)

A. 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 positions of power held by Henry Kissinger during the relevant years.

Following the hotly contested presidential election of 1968, which saw Richard Nixon claim victory over then Vice President Hubert Humphery, Nixon made Kissinger, "as his very first appointment," Assistant to the President for National Security Affairs (currently known as the National Security Advisor). (17) In that position, Kissinger "revised and fashioned [the National Security Council apparatus] to serve his needs and objectives." (18)

Sometime in 1969, during Nixon's first official year as president, Kissinger was also appointed as chairman of the "Forty Committee," a position he held until 1976. (19) While not a well publicized decision-making body, and one that has gone through at least three name changes since its inception, it is indeed an actual governmental body and not simply the fiction of conspiracy theorists. The Forty Committee, originally known as the "Special Group" under the Eisenhower administration, was established as a "monitoring or watchdog body to oversee covert operations." (20) President Ford described the Forty Committee as being charged with the task of reviewing "'every covert operation undertaken by our government.'" (21) In sum, "Kissinger may be at least presumed to have had direct knowledge of, and responsibility for" every major American covert operation occurring between 1969 and 1976. (22)

Completing his triumvirate of power positions, Kissinger was sworn in as the 56th Secretary of State on September 22, 1973. (23) Kissinger retained his position as National Security Advisor and his chairmanship of the Forty Committee. (24) He was the first person in U.S. history to "simultaneously [hold] the positions of National Secruity Advis[o]r and Secretary of State." (25) Although Kissinger lost his post as National Security Advisor under Ford on November 3, 1975, (26) he later admitted that the loss "in no way diminished his real power." (27) In addition to the Forty Committee, Kissinger also "chaired six NSC-related committees: the Senior Review Group (non-crisis, non-arms control matters), the Washington Special Actions Group (serious crises), the Verification Panel (arms control negotiations).... the Intelligence Committee (policy for the intelligence community), and the Defense Program Review Committee (relation of the defense budget to foreign policy aims)." (28) Kissinger's accumulation of many key government positions during his tenure in office led his former aide to describe him as "no less than acting chief of state for national security." (29)

Because Kissinger arguably had more power over U.S. foreign policy decisions than anyone, save for the president himself, it would not be unreasonable to hold him responsible for any major foreign policy decision made when he held these prestigious positions. However, the case against Kissinger goes far beyond mere circumstantial evidence of knowledge and potential control. It is simply important to note that a few leaders can be responsible for the foreign policy actions of an entire country, and more importantly, deserve to stand trial for their commission. Moreover, because the trial of one powerful government official never precludes prosecutors from trying other participants later, there is no sufficient justification for failing to prosecute the most notorious culprits.

B. The Crimes of Kissinger

The allegations of the criminal activity surrounding Kissinger are not new: numerous authors have charged Kissinger, Nixon, and others in the Nixon and Ford administrations with bending and violating international and domestic law in executing their foreign policy decisions. (30) While conventional wisdom holds that Kissinger will never stand trial for both administrations' violations of international law, several recent developments have raised the (remote) possibility of bringing Henry Kissinger to justice for some of the crimes ascribed to him.

The first development was Great Britain's decision to allow General Pinochet to be extradited to Spain on torture charges and to deny him diplomatic immunity as a former head of state. (31) Although Pinochet was later released before facing the extradition because of severely declining health, the precedent justifying efforts to bring other architects of atrocity was firmly established by the British House of Lords. (32)

Since the Pinochet case, several countries and aggrieved families have taken an interest in bringing Kissinger before a court to answer for his actions. While Kissinger was vacationing in France, a magistrate summoned him on May 29, 2001 to answer questions about his involvement in and knowledge of Operation Condor. (33) Kissinger left his hotel that very day surrounded by bodyguards and refused to answer the magistrate's questions; (34) the U.S. Embassy later informed the French that Kissinger was "too busy" to answer questions about his involvement. (35) The U.S. Embassy also told the French government that if they wanted to question Kissinger, they should have used diplomatic channels rather than serving a summons on the Former Secretary of State at his hotel. (36) Apparently, the French magistrate had made such a request of Washington in 1999 but received no response. (37)

Just days after Kissinger received his summons in France, a judge in Argentina indicated he might also seek to depose Kissinger in another investigation regarding Operation Condor. (38) On September 10, 2001, the family of a slain Chilean military commander brought suit in federal court against Kissinger, Richard M. Helms and other Nixon-era officials for "organizing and directing a series of covert activities that resulted in [the Chilean commander's] assassination." (39) The very next day, a similar suit was filed in Chile alleging Kissinger and associates assisted dictators Augusto Pinochet of Chile and Jorge Videla of Argentina in committing crimes against humanity. (40) Thus, whatever sense of security Kissinger once had about never facing such a prosecution must be wavering.

While most of the legal action has been connected to Kissinger's role in South America, there are several other viable areas of inquiry. Beyond South America, there are Kissinger's policy actions in Indochina and the allegedly illegal bombings of Laos and Cambodia; the political assassination of a democratic leader in Bangladesh; the encouragement of a bloody division of Cyprus by Greece and Turkey; and the slaughter of 300,000 people, mostly civilians, in East Timor. (41) Ironically, Kissinger's alleged crimes in East Timor are probably the least known by the American public and yet are perhaps his most atrocious and those most supported by available evidence.

C. East Timor (42)

On December 7, 1975, "Australian journalists picked up this radio broadcast from East Timor: 'The Indonesian forces are killing indiscriminately. Women and children are being shot in the streets. We are all going to be killed.... This is an appeal for international help. Please do something to stop this...." (43) The Indonesian invasion of East Timor commenced on that day resulted in a slaughter of 100,000 East Timorese in the first year alone. (44) Nearly a full third of the population, 200,000 out of a total population of just 650,000, perished in the twenty-five year campaign. (45)

1. Background

In April of 1974, Portugal's authoritarian government was overthrown by a leftist military revolt, which consequently encouraged independence movements in the Portuguese colony of East Timor. (46) The new Portuguese government supported a gradual transition to independence for the colony. (47) Tucked in the southern edge of the Indonesian archipelago, the tiny island nation was split between two factions. The first faction was an unstable coalition formed in January of 1975 between the Timorese Democratic Union (UDT), with the support of the elites and "senior Portuguese colonial administrators," (48) and the "vaguely leftist" (49) Revolutionary Front for an Independent East Timor (Fretilin), with a constituency of the "younger Timorese and lower-level colonial officials." (50) While Fretilin had a "more progressive stance toward full independence from Portugal," the common ground between the UDT and Fretilin was the eventual decolonization and independence of East Timor. (51)

The second main faction influencing East Timor was Indonesia and its supporters within East Timor. Amid the power vacuum left by Portugal's political instability and inability to control East Timor, (52) Indonesia graciously filled the void with thoughts of annexing the tiny island nation and making it Indonesia's twenty-seventh province. (53) To this end, the Indonesian government supported the pro-integration Timorese Popular Democratic Association (Apodeti) with financial assistance and propaganda; however, the party never enjoyed much popular support. (54)

With the UDT-Fretilin alliance crumbling in the summer of 1975, Fretilin sought control of the government. It evidenced its popular support by winning fifty-five percent in local elections in July of 1975. (55) After a brief military skirmish between Fretilin and UDT supporters (which was largely provoked by Indonesian propaganda), (56) Fretilin gained political and military control of nearly all of East Timor. (57) Despite having control over the country, Fretilin moderated its position on independence. Rather than demanding immediate independence, Fretilin began to advocate an approach similar to the plan of gradual independence it had developed with the UDT. (58)

In October of 1975, General Suharto, the dictator of Indonesia and a close U.S. ally, began to grow weary of purely political tactics and experimented with sending "Indonesian special forces ... to infiltrate secretly into East Timor in an effort to provoke clashes that would provide the pretext for a full-scale invasion." (59) Because the first wave of attacks failed to provoke any response from the West, Indonesia increased the cross-border attacks by its troops "outfitted with American [military] equipment." (60) Although Fretilin petitioned the United Nations (U.N.) and requested that it call for the immediate withdrawal of the invading forces, the Indonesian attacks finally drove Fretilin to unilaterally declare independence on November 28, 1975. (61) On December 7, 1975, Indonesia launched a full-scale invasion of East Timor using American supplied weapons almost exclusively. (62)

2. A Note About the Evidence

It should be noted at the outset that this Article does not intend to present a full account of the evidence against Kissinger for his alleged crimes in East Timor. in fact, no author could compile such a presentation on any of the violations of law alleged against Henry Kissinger because of the sheer lack of access to the most probative evidence. (63) Upon leaving the State Department, Kissinger made an "extraordinary bargain" (64) in which he gave his papers to the Library of Congress with the condition that they remain under seal until five years after his death. (65) Thus, what evidence still exists and has not been destroyed by Kissinger remains under lock and key and the world remains unable to uncover the crucial evidence it needs to bring this alleged international criminal to justice. (66)

Because the most penetrating evidence cannot be accessed, this Article can only hope to construct a general outline of facts surrounding Kissinger's involvement in the massacre of one-third of East Timor's population. However, the existing evidence does seem compelling enough to justify an extended investigation into the matter accompanied by the declassification of more documents on the subject. (67) Although an international body or foreign state would probably require substantial evidence before indicting a former head of state or high ranking official, the currently available evidence appears at least convincing enough to proceed with further investigation, (68) including the declassification and release of all relevant documents on the matter. (69) The key implication of observing that the most relevant and revealing evidence is under lock and key is that the "insufficient evidence" argument cannot be maintained. Until access to that evidence is allowed, any dismissal of Kissinger's culpability for a lack of evidence would be hasty and premature.

3. The Evidence Against Kissinger

It is initially important to note that President Ford and Secretary of State Kissinger actually visited General Suharto in Jakarta on December 6, 1975, the day prior to the full-scale invasion. (70) It is also important to note that Kissinger and Ford were fully apprised of the situation in East Timor and were well aware of General Suharto's intentions for the region as far back as July of 1975. (71)

On December 6, 1975, President Ford and Secretary of State Kissinger met General Suharto in Jakarta in a brief one-day stopover following a trip to Beijing. (72)

It is during this meeting that Kissinger and Ford allegedly gave the "green light" to General Suharto to commence his invasion of East Timor. (73) The issues raised are central to any case against Kissinger: did Kissinger and Ford have previous, credible knowledge of the impending invasion, and, if so, what were their policy actions following disclosure of the information? For his part, Kissinger has also understood that this is a crucial issue in his defense and has taken great care to claim that he had no real knowledge about Indonesia's planned attack. (74) Kissinger has in the past said: "[East] Timor was never discussed with us when we were in Indonesia. At the airport as we were leaving, the Indonesians told us that they were going to occupy the Portuguese colony of Timor.... It was literally told to us as we were leaving." (75)

However, newly uncovered State Department documents directly refute this statement. A recently declassified State Department telegram (76) containing the transcripts of the December 6, 1975 meeting between General Suharto, President Ford, and Secretary of State Kissinger specifically rebuts Kissinger's claim that he was uninformed about the planned invasion: (77)

39. [Suharto-] I would like to speak to you, Mr. President, about another prbelm [sic], Timor.... In the latest Rome agreement the Portuguese government wanted to invite all parties to negotiate. Similar efforts were made before but Fretilin did not attend. After the Fretilin forces occupied certain points and other forces were unable to consolidate, Fretelin [sic] has declared its independence unilaterally. In consequence, other parties declared thei [sic] intention of integrating with Indonesia.... If this continues it will prolong the suffering of the refugees and increase the instability in the area.

40. Ford--The four other parties have asked for integration?

41. Suharto--Yes, after the UDT, Indonesia found itself facing a fate accompli [sic]. It is now important to determine what we can do to establish peace and order for the present and the future interest of the security of the area nd [sic] Indonesia. These are some of the considerations we are now contemplating. We want your understanding if we deem it necessary to take rapid or drastic action.

42. Ford--We will understand and will not press you on the issue. We understand the problem you have and the intentions you have.

43. Kissinger--You appreciate that the use of US-made arms could create problems.

[44.] Ford--We could have technical and legal problems. You are familiar, Mr. President, with the problems we had on Cyprus although this situation is different.

45. Kissinger--It depends on how we construe it: whether it is in self defense or is a foreign operation. It is important that whatever you do succeeds quickly. We would be able to influence the reaction in America if whatever happens happens after we return. This way there would be less chance of people talking in an unauthorized way. The president will be back on Monday at 2:00 PM Jakarta time. We understand your problem and the need to …

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Publication information: Article title: Acknowledging Our International Criminals: Henry Kissinger and East Timor. Contributors: Mark, Brandon - Author. Journal title: Denver Journal of International Law and Policy. Volume: 32. Issue: 1 Publication date: Winter 2003. Page number: 1+. © 2009 University of Denver. COPYRIGHT 2003 Gale Group.

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