Third-party
criminal prosecutions are the only way that international justice
doesn't get controlled
by the superpowers, which is to say, by the United States and the
UN (with U.S. veto on the Security Council). Of course, it isn't
foolproof, and there's a little chaos, but it's a reasonable price
to pay. It gives middle-range countries like Spain, for example
the opportunity to prosecute for international justice. Even
with the ICC, which will have staffing and organizational limitations,
we'll still need these third-party prosecutions. It's important
that prosecutions show even-handedness; they mustn't just be aimed
at enemies of the West.
In
terms of how best to constitute a "most wanted" list, I'm not unwilling
to go after the big guys, but I do feel strongly that we need to
go after the powers behind these tyrants. The Pinochet case has
implicated the CIA and others, for example, and that is to the good.
We don't want justice to be skewed we're the good guys, they're
the bad guys. These situations tend to be very complicated: Habre
had U.S. and French support, even though he propped up Qaddafi.
We need to unmask the system behind the repression. These histories
are often long and complex. So let me briefly mention some cases
that call out for prosecution:
- Operation
Phoenix, during which the CIA and U.S. military murdered 60,000
- 120,000 village headmen, on the belief that they were Viet Cong
sympathizers. There were no investigations, no trials, these men
were just taken out and shot. This whole thing has been buried.
- Guatemala:
a clear case of genocide against at least 160,000 Indians. [President]
Clinton apologized, which is excellent, but I would still go after
the two or three CIA station chiefs in Guatemala at the time.
- Toto
Constant should be prosecuted. He's working in a real-estate office
in Queens. In fact, there's to be a demonstration in front of
the place soon.
- Former
President Ronald Reagan, for what the World Court ruled were "crimes
against the peace" in Nicaragua.
- A
law student of mine has researched bringing a case against [Henry]
Kissinger for his responsibility in the Indonesian invasion of
East Timor, and for planning the bombing of Cambodia, and the
Christmas bombing of Viet Nam.
Will
any of these prosecutions come to pass? It's hard to say. But that
doesn't mean we should overlook atrocious crimes.
Civil
actions are a wonderful recourse in cases of torture, forced disappearance,
and other crimes against humanity. Since the early 1980s, we have
brought well over a dozen such cases [with the Center for Constitutional
Rights and the Yale International Human Rights Law Clinic]. In the
1980s we won a multi-million civil suit against Hector Gramajo [the
Guatemalan general implicated in the torture and murder of thousands
of Kanjobal Indians]. Gramajo himself said publicly, "I killed over
thirty per cent of the people." But even liberals at the time said,
'Michael, you're wrong on this one.' Gramajo was studying at [Harvard's
John F.] Kennedy School [of Government], was invited to speak at
the SOA [School of the Americas]. Well, that stopped. He didn't
get invited places anymore. And he is barred from entering the United
States, because he was shown to be a terrorist.
In the
1980s, there was no other way to really attack U.S. foreign policy.
And we did so with civil actions against U.S.-backed torturers in
Nicaragua, El Salvador, Guatemala, and elsewhere. In 1994, I accompanied
President Aristide back to Haiti where, over the next year, Reed Brody
and I helped him prosecute human rights violators.
There
are of course significant differences between criminal and civil
prosecutions. Only the U.S. (and maybe Belgium and France) allows
these cases. So again, it's 'us' judging 'them.' But it's better
than nothing. At the same time, however, it is not easy to sue U.S.
officials.
On
the other hand, an aggrieved individual can initiate a civil action
without state cooperation, and according to fairly traditional notions
of torte. It is rare to actually collect a settlement, but it is
nonetheless important on several levels for the victims: it is healing;
it brings acknowledgment of their plight; and it gets the information
out there. There are also collateral benefits: it is often a critique
of U.S. policy; and the defendants are 'branded,' Gramajo being
a perfect case in point.
So
while civil actions are not coercive, there's no jail, and the defendant
need not be present, there are other advantages. They are much less
expensive and difficult than criminal prosecutions, and that is
no mere detail.
We
are without doubt in a new legal moment. Many individuals are afraid
to travel, for one thing. They have been made to understand the
legitimacy of their being prosecuted. The Torture Convention has
been seen to mean no exemptions for former heads of state. The message
has been heard: You cannot do these things to people, and just walk
away. Even if you have protection in your own country, that's no
guarantee. Chile did not fall apart, as was commonly said at the
beginning of Pinochet's time in England. In fact, the opposite has
happened; who would have dreamed that Chile would now be prosecuting
its own ex-tyrant? Countries have also been made to understand that
their signatures on human rights treaties and conventions have meaning;
they represent real commitments. And perhaps most important of all:
the general public now has knowledge of the conventions, of the
history, and many have expressed a sense of outrage over the crimes
committed [by Pinochet]. We have heard the collective cry that these
crimes are absolutely unacceptable.
Michael
Ratner is the Former Legal Director, Center for Constitutional Rights
and international human rights litigator.
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