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)
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. …