Global Policy Forum

By Faisal I. Chaudhry

In significant part a reissuing of facts and stories (albeit with additional documentation) known for many years previous, perhaps the most singular achievement of Christopher Hitchens' 2001's The Trial of Henry Kissinger was the unflinching insistence with which its author presented it to the world without breaking character: there he was from Harper's to C-Span, always the messenger bringing to light the investigative fruits of what was by all portrayals a veritable journalistic coup. For strategic reasons relating to just how it is that the mainstream media functions, Hitchens' game plan for "selling" the book has been understandable enough, and we do ourselves well to forgive him of the theatrical excesses his role as "dogged pursuer of the truth" has tended to take on at times.

That said, for those now thinking through the nuts and bolts, merits, and larger purposes of the campaign to render Kissinger accountable for his/his administrations' actions, we would do ourselves equally well not to miss what is deeply lacking in Hitchens' effort. As an indictment, then, Hitchens' book was not simply wanting in the novelty of much of the basic factual information it presented itself to be unearthing, but also in the rigor with which it specifically articulated the nature of the substantive legal claims that might be made against the former Secretary of State and that of the jurisdictional setting within and through which such claims could be brought.

As the most recent lawsuit against Kissinger-filed on November 13, 2002 in the district court of Washington, D.C.-indicates, these points are far from simply academic, with ongoing efforts to bring Kissinger to justice through litigation arising at a quickening pace. One interesting feature of this latest suit, brought by 11 victims suffering human rights abuses in the wake of Augusto Pinochet's coup in Chile, are the theories of liability upon which it is based. As the International Campaign Against Impunity notes, amongst other things, "as a civil lawsuit, liability rests on.well-established federal common law tort principles of third-party liability as well as international law principles of aiding and abetting and accomplice liability." Alleging that Kissinger knowingly provided practical assistance and encouragement to Pinochet's regime prior to, during, and after the coup with reckless disregard for the lives and well-being of the victims and their families, the types of liability claimed serve to highlight an important difference between Kissinger's role in Latin America and Southeast Asia where, as Nicole Barrett's recent legal assessment suggests, the most coherent criminal claims against him on human rights grounds (at least for the aerial bombings of Cambodia and Laos) would best be organized around a theory of command responsibility. Even imagining ourselves outside of the immediate context of a civil lawsuit, for many if not the majority of Kissinger's alleged crimes outside of the Indochina wars, given their indirect nature, efforts at prosecution would likely be hard pressed to proceed on the grounds of this type of liability. For this reason the significance of the much less well-tested ground of accomplice liability in international criminal law should be apparent. The below article is meant to provide a brief overview of the elements of the relevant legal doctrine governing accomplice liability in the international criminal law context and its specific application to Kissinger's involvement in Pinochet's rise and consolidation of power in Chile.

The International Law of Accomplice Liability for Human Rights Crimes

In a useful review of the "law of complicity" in international criminal law, National University of Ireland Professor of Human Rights Law, William Schabas, draws upon a range of authorities from the Nurembrg Trials to the present-day statute of the International Criminal Court ("ICC") to define the following three "elements" for the successful establishment of the guilt of an accomplice:

§ That a war crime or crime against humanity has been committed.

§ That the individual charged as an accomplice contributed in "a material way to the crime."

§ That the individual charged as an accomplice intended that the crime be committed or have been reckless as to its commission.

Considering each of these elements in Kissinger's case in the context of Chile, a number of complexities arise. With regard to the first element, two questions loom. The first and more obvious seems also the one more likely to be resolved favorably: whether proof of the principal offense exists. That there is considerable evidence of a range of atrocities carried out by Pinochet's regime following the overthrow of Chile's elected leader, Salvador Allende, is not in doubt, as can be gleamed in summary form from the charge sheet attached to Spain's original extradition request for Pinochet himself which counted amongst its claims the 58 individuals killed in the immediate wake of the coup, the 68 prisoners summarily executed as part of the "Caravan of Death," and the thousands of victims tortured by Pinochet's Defense Intelligence (DINA). In addition to this, of course, there is the raw data that exists in the range of human rights reports released contemporary with Pinochet's rise and rule by the likes of the Inter-American Commission on Human Rights and the United Nations. Finally, there is also the Chilean government's own Truth and Reconciliation Commission instituted by the democratically elected government of President Aylwin in 1990. That said, it is important to note that the existence of such evidence for the purpose of establishing that "grave human rights abuses" took place, is distinct from whether it suffices for the purposes of demonstrating the relevant categories of principal offense to which Kissinger would have to be tied under a theory of accomplice liability. Assuming such a principal offense could be proven, however, we would further have to ask whether the perpetrator(s) of the principal offense(s) would qualify as a legally sufficient "other person" to whom Kissinger could be tied for the purposes of the first element of accomplice liability. This would entail considering the location of such an offender along the causal chain extending from the actual executor of the crime, up through the direct chain of command ordering/approving the action within the Chilean military or intelligence forces, on through the realm of political officialdom tied to these forces, and finally through the tangle of U.S. government institutions involved in "supporting" the regime, some one(s) of which Kissinger would presumably be embedded in. Where legally meaningful responsibility for the principal offense could not be assigned very high up the chain, it might be that much more difficult to tie Kissinger (or, for that matter, any other U.S. official) to the predicate as an accomplice. In Kissinger's case it may even be the case that the sole criminally cognizable predicate offenses are those traceable to only a very narrow range of individuals extremely high up in the Chilean regime (say, perhaps, from Pinochet, himself, to Manuel Contreras Sepulveda, the former Pinochet pupil and army general who went on to assume a leading role in DINA). I will return to this question below in the discussion of the culpability element in Schabas' accomplice liability framework.

Shifting to the second element in this framework, prevailing sources of authority leave unclear the more precise meaning of the legal standard of "contributing in a material way" to the principal offense at issue in the first element. For this reason, specifying what acts are sufficient to reach this threshold is also a difficult task. For guidance Schabas mainly discusses the International Criminal Tribunal for Yugoslavia's (ICTY) Prosecutor v. Tadic decision in clarifying that, at a minimum, it does seem clear that there are both quantitative and qualitative dimensions of the act(s) that would require assessment. In this vein the Tribunal ruled that the act(s) would have to have had a direct and substantial effect on the commission of the offense, with the meaning of "substantial" being gathered from the wider case law to require a contribution that has an "in fact" effect on the commission such that the criminal act would not have happened in the same way had not the accused acted in the role (s)he assumed. The Tribunal elaborated on the legal test in this manner while at the same time deliberately stopping short of mandating a higher threshold of "substantiality" that would have required the accomplice's to be an "indispensable element" for the acts of the principal to have taken place. What exactly all of this means for Kissinger, of course, is unclear. In so far as such uncertainty exists, it is likely that political pressures would work to insulate Kissinger from judicial scrutiny in a way Pinochet was not given the discretion courts would have in setting thresholds for the operative legal standards here enumerated. Such thresholds would be subject both to differential specification based on some explicitly different test as just indicated and also other more subtle mechanisms any judicial body would likely be acutely aware of, depending on the identity of the accused, his/her political prestige, and the power of his/her state. That Kissinger is an American official whose "crime" in Chile, most generally and non-technically stated, is that of "supporting" a repressive regime makes for a marked contrast to the Pinochet prosecution where all the other differences of circumstance (a head of state; a military man; a "third world" leader) made the characterization of his crimes-even at this same level of non-technical generality-seem much more easily described in terms of constructing and coordinating the apparatus responsible for the actual execution of the repression constituting the principal offenses at their most irreducible level. With this in mind, we can anticipate that under a theory of accomplice liability the "materially contribute" element would require a considerably high level of "aiding and abetting" that likely be all the less reachable where those specifying the thresholds and standards are partial towards classifying US involvement in Chile in terms of "constructive engagement" rather than "support of repression." This potential obstacle could likely remain even if we were to consider a prosecution from a more detail-oriented view since there might be no way around the choice to classify actions such as providing arms shipments, military training, or diplomatic cover as the one rather than the other when the thousands of miles between Washington and Santiago is more than distance enough to reserve the defense that the choice was based on the type of "mistaken judgment" that cannot help but come into play when "making policy" at such a remove.

All of this only serves to emphasize the degree to which questions about this second element of accomplice liability would likely turn on (and beg) the considerations that go into assessing Schabas' third and final element-the culpability of the accused. Here the test is that the accomplice 's act must be carried out with the intent and with knowledge of the principal perpetrator's act. Quoting from the commentary of the International Law Commission's draft Criminal Code, Schabas notes that the accomplice must "knowingly provide assistance to the perpetrator of the crime. Thus, an individual who provides some type of assistance to another individual without knowing that this assistance will facilitate the commission of a crime would not be held accountable."

Schabas further alludes to the ICTY's Tadic decision stating that there is a requirement of intent, which involves awareness of the act of participation coupled with a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime.

In the Tadic case the Tribunal drew on the Mauthausen Concentration Camp prosecution in which the post war U.S. military tribunal found that every official (government, military, and civil) as well as every employee of the camp (whether S.S. member, guard, or civilian) was criminally liable as an accomplice to the murder of inmates at the camp through the use of gas chambers. With regard to the culpability of these individuals the thrust of the reasoning referred to the "impossibility" that any such individual could not have "acquired a definite knowledge" about activities at the camp. A crucial factor in resolving this set of facts in favor of holding the various officials and camp administrators responsible seems to have followed from the geography, so to speak, of the relationship between the accomplices, perpetrators, and victims. In other words, it was the proximity of these various actors to one another that eased the inference that the "impossibility" of their not learning of the criminal activity in the camps could serve as sufficient proxy for assuming their legal "knowledge" for culpability purposes. As the presiding U.S. military tribunal noted, this was because of the fact of their "being in control of, be[ing] employed in, or present in, or residing in" the very place where the crimes were happening.

With respect to this third culpability element, then, a very significant aspect of cases where such proximity is not available-whether in our own Kissinger example under a theory of accomplice liability or in one, say, of a military official under a theory of command responsibility-would seem to be that relating to how permissive a court is likely to be in reading the meaning of "being in control of" the facilities of criminal action (whether camps, paramilitary marauders, or whatever else). Without a sufficiently permissive reading of this notion of control (which may well be determined by the "permissiveness" of a court's political orientation) there might be little way for this third element of accomplice liability to function as a means by which to resolve the types of difficulties mentioned above while discussing the uncertainties in the second element of accomplice liability in Schabas' framework. To restate this last point by way of a question, then, we can ask the following: if a court is unwilling to accept U.S. policy makers as being "in control of" the Chilean regime, given the distance between Washington and Santiago, even assuming proof of Kissinger's "awareness of the act of participation," would there be any point in seeking to couple this with a showing of "a conscious decision to participate by planning, instigating, ordering, committing, or otherwise aiding and abetting in the commission of a crime" (as per the last citation from the Tadic case above)? In such a scenario how feasible would this be, especially, where additional questions like the following would persist: was Kissinger knowingly providing assistance to the executors of the crime or only the executive of a foreign government with whom the U.S. had to have some (whether "constructive" or "mistake-ridden") policy for engagement? Even if he was, was he "consciously deciding" to provide such assistance as a means by which to "participate" in the commission of their crimes, as opposed to "consciously" deciding to "constructively engage" them so they could be more easily "influenced" to reform themselves or carry out some other legitimate function of the institutions of which they were a part?

Applying the Standard To Kissinger's Role in Pinochet's Chile

In the remainder of this article I will attempt to apply the doctrine of accomplice liability, as formulated above, to the facts-in so far as they can be assembled from presently declassified documents-of American involvement in one of the more vivid episodes in the narrative of Pinochet's repression, the Caravan of Death. The BBC summarizes the events comprising the series of actions so named as follows:

For a few days in October 1973, a self-styled military "delegation" toured provincial cities in northern and southern Chile, killing dozens of political opponents of General Augusto Pinochet's September coup. Many of the victims of what became known as the "Caravan of Death" had voluntarily turned themselves into the military authorities. Prisoners were taken from their cells and summarily executed, often without the knowledge or consent of the local military authorities.At least 72 people were killed and memories of the "caravan" endure as one of the most notorious episodes of human rights abuse during Chile's military rule. Analysts say the events set the seal on Chile's long military dictatorship. The army unit traveled from town to town in a Puma helicopter, armed with grenades, machine guns and knives.The Puma landed in Cauquenes, La Serena, Copiapo, Antofagasta, Calama in northern Chile and at least one southern city. Officially, the delegation's mandate had been to "review the War Council proceedings for political prisoners in the regions and bring procedures there in line with Santiago standards." Supporters of the campaign to bring General Pinochet to justice for abuses during his 1973-1990 rule say he had clear responsibility for the slaughter, sending a close associate to head the "delegation."

That the operation involved the mass killing of opposition figures is not in doubt. However, exactly how it/its constituent acts are best categorized as principal offenses depends on relevant legal definitions in humanitarian and human rights law. The most serious and likely possibility would be to classify the principal crimes as Crime(s) Against Humanity, as per a definition like that which is used in the Rome Statute of the International Criminal Court (ICC). Under Article 8 the Statute a "crime against humanity" means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: (a) Murder; (b) Extermination; (c) Enslavement, (d) Deportation or forcible transfer of population; (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; (f) Torture; (g) Rape, sexual slavery.(h) Persecution against any identifiable groups or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law.(i) Enforced disappearance of persons; (j) The crime of apartheid; (k) other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.

The Caravan of Death would appear to be "widespread and systematic" in two ways: first, in its own independent capacity as a "campaign" of repression comprised of a series of actions, similar in purpose and effect, and, second, in its role as one part of the larger effort to eliminate political opposition after Allende's ouster. Therefore, that there is good reason for interpreting the individual human rights abuses as crimes against humanity is substantial. Given, the activities of the Pinochet administration and the Chilean security forces linked with it in carrying out the Caravan's array of disappearances, targeted assassination, extra-judicial killing, and torture, it would appear that the regime's actions, at a minimum, would implicate violations enumerated under Article 8(a),(e),(f),(h),(i). and (k) of the ICC definition.

Turning to the other two elements of accomplice liability outlined above, much of the effort to tie Kissinger to the Caravan in a legally meaningful way would depend on the status of the available evidence. Asking first about the third element (because the second, as suggested, turns in crucial ways upon whether the requisite culpability could be established) for illustrative purposes we can consider the evidentiary significance of two of the more important documents available in the existing declassifications. The first is a situation report from the U.S. Naval attaché Patrick Ryan, dated October 1, 1973. While its audience is unclear (did it eventually reach the President's inner circle? Kissinger himself?), we can, nevertheless, take it as a proxy for the type of information that would likely have been widely available within the upper echelons of the various wings of government concerned with the situation in Chile in the wake of Allende's ouster. Under the subheading "Future" it reads "The Chilean armed forces are acutely aware that their responsibilities did not terminate with the fall of the Marxist government, but rather that they have just begun. The road back for Chile will be long and hard." While the section goes on to specify these responsibilities in terms of dealing with the "bankrupt treasury" and "aspiring to goals which are for the benefit of Chile, and not self-serving world Marxism" one cannot help but hear the echoes of the pre-Allende calls from then American ambassador to Chile, Edward Korry, in September 1970 about the hazards of the country's "going Communist." Set out in a series of cables issued just before Allende's election, Korry's views were most insistently concerned less (as one might expect) with his ascension, as such, then with the deficiencies of the military forces that were, as a matter of course, assumed to be the ones who should take responsibility for dealing with it. Overall, then, not only does Ryan's report echo Korry's in who it assumes the Nixon administration should have been providing its "assistance" to (putting aside, for the moment, whether this assistance itself was assumed or should have been assumed to be improper in a possibly criminal sense) but, it also picks up from where Korry's cables left off in the knowledge it betrays of how the administration perceived itself to be in need of actively fashioning this "who" into a more suitable agent for utilizing the assistance towards an end its configuration during that time may not otherwise have been capable of allowing. Like the "historic responsibilities" (at the acknowledged price of possible bloodshed and civil war) that Korry predicted would have to be taken on if Chile was to be "saved" Ryan, too, understood that these ongoing responsibilities would extend well into the future even after 1973, noting that "[a]lthough the coup is three weeks old we still live under martial law as the Armed Forces continue to pursue.terrorist groups and search for weapons caches."

While the sanitized language of Ryan's report does not openly concede that the administration was thinking itself to be "knowingly providing assistance to the perpetrator of a crime," considered in the larger context of documents like those issued by Korry explicitly testifying to what was well understood about the bloody nature of the "historic responsibility" the U.S. would have to "move faster" to ensure (see note 12), it becomes impossible not to see what "pursuing terrorist groups" must have been understood to entail by Ryan as well as high officials in positions like the one Kissinger was occupying. At times the documents render this quite explicit. For example, in one declassified Defense Intelligence Agency (DIA) report the Agency makes plain its assessment that the bombing of two homes in Santiago in early November 1977 was carried out by the Chilean military rather than leftist forces as the regime was claiming at the time. The document, entitled "Covert Counter-subversive Activities in Chile" goes on to note that using bombs was based on the "conscious decision by the service intelligence chiefs that the best way to deal with the safe house problem is by blowing them up, if possible, with the terrorist present" since "[a]rrests and prosecutions would 'take months.'" Though the acts referred to are obviously outside of Kissinger's period in office it is hardly outlandish to take the document to be an indicator of what the highest levels of the U.S. administration were apparently regarding as already having become commonplace.

Even short of locating analogous documents from Kissinger's own period, we can see, at the least, this much: that an understanding existed as to what "pursuing terrorists" meant, and that this is demonstrable not only as a matter of the types of logical inference policy-makers would have been drawing, but also as a result of facts they were privy to. This last point about the types of facts available to Kissinger is illustrated by the second crucial document we can call attention to here-a November 16, 1973 memo addressed to Kissinger from Assistant Secretary of State, Jack Kubisch. Entitled, "Chilean Executions," the document's final page lists in table form the litany of abuses carried out by the new regime in its self-described "state of siege in time of war" (a description which Kubisch notes was the basis for the legality of the regime's extra-judicial killings in its own eyes). Included amongst the data is a figure of approximately 100 acknowledged executions noted as being available through public sources, as well as the intelligence services' own figure of 320. It is unlikely that the data available in this November 16 report suddenly appeared only after the Junta's October 24 announcement that "summary on-the-spot executions would no longer be carried out and that persons caught in the act of resisting the government would henceforth be held for military courts." Clearly a larger effort of monitoring these developments was underway, as evidenced by the access to the data from the "secret" source, as well as the nuanced and acute awareness the document betrays about the way in which the "oppressive image continues to plague" the Chilean regime internationally (and by implication, an acute awareness about why this was so). Thus, even while the source of the larger number is marked as "secret," there is no doubt that both Kissinger and the wider administration well understood what was happening in the two weeks after the coup, as the Caravan of Death was rolling through the country and as the larger effort to eliminate opposition was proceeding apace. With regard to this larger effort, in particular, we can see how the November 16 document bears upon the nature of the culpability officials like Kissinger for events outside of the activities of the Caravan itself. Here I am referring to the document's acknowledgment that both its author and audience were aware of the fact that "the state of siege measures would have to remain in force for at least another eight months." In light of this awareness, it is quite remarkable (or perhaps more accurately, quite expectable) that in the same breath Kubisch can be found discussing with Kissinger both mass executions and also the Nixon administration's new economic assistance to Pinochet's government. Accordingly, the real question concerns whether the assistance Kubisch describes (or for that matter, any other he does not) is justifiably seen as an "act of participation" in the killings of the Caravan of Death or any of the other abuses the memo clearly documents (for example the detention of the some 13,500 individuals it lists as detained since the coup). This, of course, is the central inquiry under the third culpability element of accomplice liability as described above. Several additional factual questions seem relevant here. Perhaps most crucial amongst these is the way in which U.S. aid would have continued to facilitate the creation of the institutional capacity for executing the crimes Pinochet was coordinating and directing in the manner the BBC article quoted above briefly touches upon when it describes the claims of those who now seek to bring Kissinger to justice. Undoubtedly, the most important such institutional agent was the DINA. As Human Rights Watch describes, it is widely understood that in the immediate aftermath of the coup "[m]ost of the repression was carried out by [this] new entity, which first emerged in October 1973." Headed b y Contreras, DINA "accrued enormous power, largely supplanting the intelligence branches of the armed forces, until it was dissolved in 1977." While the existing documents seem to leave unclear with what specificity aid was earmarked, in particular, to DINA, the administration clearly knew that Pinochet's regime had charged the new entity with undertaking the work of the "state of siege." For example, Kornbluh cites an April 1975 communication to the Pentagon from the US military attaché, stating that "[t]he apprehensions of many senior Chilean military authorities regarding the possibility of DINA becoming a modern-day Gestapo may very well be coming to fruition."

In this sense, one could suggest that it is hard to see how the administration could not have but been aware that any assistance it provided would be an "act of participation" based on "a conscious decision to participate" given the inherent risks of aiding and abetting the capacities of the agencies, like DINA, executing the crimes-risks, moreover, which were again born out for decision makers in both logical inference and in fact. Here again, however, we should note that with regard to this Pentagon communication, exactly what if any effort would be needed to show that it signified a sort of common knowledge within the Administration-as opposed to a specific piece of paperwork that Kissinger actually read-is not clear. Whether, all of this means that the second "material contribution" element of accomplice liability could also be proven may be the most difficult question to answer. This is partly because of the tension in a Tadic-type test, as described earlier-between its explicit "direct and substantial effect" test, on the one hand, and the need to render it workable in practical effect through elaborating a meaning of "substantial" that would bring the test closer to an "in fact effect" one (such that the criminal act would not have, in fact, happened in the same way had not the accused acted in the role (s)he assumed). Thus, while not as strong as something like the "indispensible element" reading of "substantial", without documents explicitly testifying to a desire to earmark aid and assistance specifically towards particular attempts at assassination and extra-judicial killing of the type comprising the Caravan of Death and without more explicit proof linking the contributions of the American accomplice administration in which Kissinger was active to the ultimate executors of the crimes (as opposed to intermediate actors like politicians and diplomatic middlemen) in Chile, meeting a Tadic test elaborated under even the more lenient "in fact" effect reading might become quite difficult. This is because it grows increasingly hard to demonstrate that any given criminal act would not have happened in the same way where the target to which the "material contribution" must have been made was an individual/institutional (set of) human actor(s) with something like an independent will (or, at least, one that was independent from that of the accomplice). Since such an actor would have always had ultimate sway over the "way in which the act was made to happen," this will always make it possible to say that the act could have happened differently (or not at all) since the independence of that will, rather than the contribution made by the accomplice, becomes the determining factor in the act's having taken place. ("After all," a defense might always assert, "even if Kissinger had not ensured that the Nixon administration 'engage' the Chilean regime, DINA could always have acquired the capacity to take the actions it did by the regime simply procuring other sources from which to build and equip its intelligence wing appropriately"). Ultimately, this determination might hinge upon trying to show that the existence of DINA itself (or the Chilean regime in general, in the larger argument) could not have been separated from the criminal acts it was perpetrating. In other words, it might hinge upon showing that neither did DINA have any other legitimate purpose nor could the likes of Kissinger have believed it to have had one, given the facts of its activities that were so well known within the higher levels of the Nixon Administration.

Conclusion

As efforts continue to begin seriously translating the now familiar (at least within certain circles) indictment of American foreign policy for the "crime" of "supporting repressive regimes" into legally cognizable wrongs, one cannot underestimate the need for criminal liability doctrine to evolve accordingly. Unfortunately, because traditional domestic systems of criminal law are ill equipped for such a task there is all the more reason to draw where possible from human rights and humanitarian law. In the case of bringing Henry Kissinger to justice for the full range of his activities as a high official in the U.S. government, the Pinochet precedent has led to just such a result especially in maters jurisdictional as the assertion of the doctrine of universal jurisdiction to ensnare the former Chilean dictator within the Spanish judiciary first made possible. Hopefully, this article will be useful in the ongoing effort to do the same in matters relating to criminal responsibility doctrine.

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