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| Kissinger Watch #1 - 01 | |
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| "Holding Individual Leaders Responsible for Violations of Customary International Law: The U.S. Bombardment of Cambodia and Laos" by Nicole Barrett, J.D., Columbia Law, 2001., Summary prepared by Katharine Larsen, larsenke@law.georgetown.edu, Georgetown University Law Center, J.D. class of 2003. | |
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| Click on Download to obtain the entire legal assessment | |
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| At no time has the question of accountability for political decision-making been ascontroversial as it is today. The roller coaster trajectory of the past few years alone has includedthe prosecutions of Pinochet, Habre, and Milosevic; it has also included a recent ICJ decision thatundermines the exercise of universal jurisdiction in Belgium, the silencing of opponents to U.S.governmental policy in the wake of the unforgettable events September 11, and the continuingpresumption of political immunity for foreign policy practices. In this context, Nicole Barrett's note, "Holding Individual Leaders Responsible for Violationsof Customary International Law: The U.S. Bombardment of Cambodia and Laos," analyzes thelegal consequence of filing suit against Henry Kissinger, the U.S. National Security Advisor from1969-1973, for violations of customary international law (CIL). Here, Barrett tackles twoquestions: Did the U.S. bombings of Laos and Cambodia violate CIL, and, if so, can Kissinger beheld accountable under theories of command responsibility? Both these questions are answeredin the affirmative. First, Barrett asserts that carpet-bombing represents a per se violation of CILand that the bombings in this case specifically flouted the laws of war at the time. Second, shedetermines that Kissinger knew about the bombings and not only did not take measures toprevent them but actively sought to maintain them despite the deaths of almost one millioncitizens of Laos and Cambodia. In analyzing whether the bombings constituted a violation of CIL, Barrett makes her point infour parts. She first describes the chronology and character of the attacks on Laos andCambodia individually. She then discusses the origins of the legal rules that apply to theseevents. Third, she asserts that these rules are binding today and were equally binding at the timeof the bombings. Last, she applies these standards to the facts of each attack. Because shedetermines that CIL, as it stood in 1969, had established a clearly discernable and legally bindingprinciple that civilian lives must be shared in times of war and that the bombings in questionindiscriminately took the lives of hundreds of thousands of non-combatants, Barrett concludesthat these acts constituted a clear violation of CIL that could not be justified by "militarynecessity." The bombing of Laos resulted in the murder of over one-tenth the country's population. AsBarrett points out, the United States dropped more bombs there than it did worldwide duringWorld War II. Hospitals, religious institutions, and villages were wiped out; Agent Orange wasspread across 4.5 million acres of fertile lands; almost a million citizens were forced from theirhomes in what Ted Kennedy (D-Mass.) called "a mindless use of power." The devastation in Cambodia was equally heinous. Six hundred thousand non-combatantswere murdered, and over two million were forced to flee as the United States used carpet-bombingtechniques to destroy densely populated towns, fertile fields, and judge areas. Theabsolute ruin led Cambodian citizens directly into the hands of the dictatorial Khmer Rougeregime. Although a domestic tribunal has been proposed in order to hold perpetratorsaccountable for the human rights abuses committed in Cambodia, its mandate will likely belimited to the period after 1975, protecting the United States from culpability.Given these events, Barrett canvasses the applicable legal standards that existed in 1969 inorder to lay out the rules governing acts of war. These standards include the following rules:parties to war must distinguish between military and civilian targets; they must not direct attacksat civilians; and they must limit each attack to the advancement of legitimate military objectives,meaning that an attack must be necessary as well as proportional. In asserting that theseprinciples were binding upon the United States at the time, Barrett asserts that, in accordancewith international law rules, these rules were derived from consistent state practice that wasfollowed out of a sense of opinio juris, i.e. general legal obligation. Here, Barrett describes anddocuments the evolution of the laws of war from the writings of Grotius, the Lieber Code, and theearly Hague Conventions to the principles enforced in the Nuremberg trials, the codes advancedby the International Committee of the Red Cross, and the Additional Protocol I to the GenevaConventions. From these documents, she identifies a "clearly established customaryinternational law rule that civilians must be distinguished from military targets and spared." Afterapplying these rules to the facts described above, Barrett conclusively states that the bombingswere in complete violation of the standards of CIL and that carpet-bombing as such represents afull affront to these standards. In the second part of her note, where Barrett assesses Kissinger's culpability, Barrett walksthrough command responsibility's two prongs, as outlined by the Yamashita principle and the1956 U.S. Army Law of Land Warfare. She finds that Kissinger satisfies both. First, as a politicalleader with direct control over the military, Kissinger fulfilled the requirement that he "knew orshould have known" that military forces were committing crimes. Kissinger himself proudly statesin his autobiography that he, "[i]n an awesome setting ... worked out the guidelines for thebombings of [Cambodia, developing] both a military and a diplomatic schedule." Further, militaryofficials noted that he read raw intelligence in order to orchestrate his plans. Second, Kissingerdid nothing to take "necessary and reasonable measures to prevent illegal acts"; in fact, as thearchitect of the bombings, he systematically planned their implementation, and he complementedthe Seventh Air Force on its use of the most advanced photography, radar, sensors, andintelligence to carry out his plans. Accordingly, Kissinger was fully aware of the results of thebombings - the human massacres and physical devastation - and he did everything in his powerto assure that the U.S. forces reached these goals. As such, Barrett asserts that Kissinger isculpable for these events under the theory of command responsibility. In her conclusion, Barrett confronts the obstacles of the statute of limitations, legislativejurisdiction, and non-justiciability (e.g. political question doctrines). She finds that none of these isan insurmountable obstacle, although a successful trial would require careful forum selection inorder to identify a jurisdiction that waives the statute of limitations for war crimes, that allowsprosecutions on the basis of universal jurisdiction, and that has the political will to carry such acontroversial case forward. Because the further dismantlement of the presumption of non-accountabilityfor governmental officials will significantly strengthen the human rights movement,Barrett challenges the international community to "have the courage to hold political leadersaccountable for their criminal policies" and to begin with the indictment of Henry Kissinger. | |
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