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:

1. 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.
2. 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.
3. 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.
4. Former President Ronald Reagan, for what the World Court ruled were "crimes against the peace" in Nicaragua.
5. 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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