Explanatory note regarding legal proceedings sparked by Kissinger’s visit to London
by ICAI
The expected arrival of Henry Kissinger in London to attend a conference on 24 April 2002 sparked several legal proceedings concerning his actions during his tenure as U.S. National Security Advisor and then U.S. Secretary of State in the Nixon administration. Two judges from Spain and France requested permission to question him in connection with cases brought against Augusto Pinochet in their countries. A British activist attempted to have him arrested for crimes allegedly committed in Cambodia, Laos and Vietnam some 30 years ago. All of these attempts failed to bring Kissinger before the courts, but some may have nonetheless made progress in other ways.
In particular, the attempt to have Kissinger arrested clarified procedures for initiating a case against him in England, and demonstrated how seriously at least one judge takes the matter. On Monday, 22 April 2002, Peter Tatchell, a British human rights advocate, asked an English court to issue an arrest warrant for Kissinger, who was expected to be in London the coming Wednesday. Judge Nicholas Evans of Bow Street Magistrates’ Court, who had issued the first warrant for Pinochet, rejected Tatchell’s application two days later. While this prevented an arrest, the decision, provided below, included several potentially important points:
- Proceedings under the UK’s Geneva Conventions Act 1957 for war crimes committed prior to 1 September 2001 can be instituted only "by or on behalf of the Director of Public Prosecutions".
"… I am satisfied that proceedings can only be instituted by or on behalf of the DPP."
- However, the Court has a right to issue an arrest warrant for such offences, even when the DPP does not intend to bring proceedings. No consent is required from anyone but the judge.
"Thus, in the context of this application, it is within the power of this court to issue a warrant for Mr. Kissinger’s arrest for an offence said to be contrary to section 1 of the 1957 Act even though proceedings for such an offence shall not be instituted except by or on behalf of the DPP."
- The Court left open the possibility of issuing an arrest warrant in the future, if presented with sufficient evidence, even when the DPP refuses to initiate proceedings. It, however, doubted the utility of doing so.
First the Judge rejected the application on the ground that the DPP’s refusal to bring proceedings rendered an arrest useless, even if legal: "…in light of the DDP’s letter…, in which the Director says ‘ I do not intend to institute proceedings for a prosecution in this case’ it would seem quite pointless my issuing a warrant even if I were so minded."
He then explained that he had to refuse the application in this particular instance because he had not been presented with sufficient evidence, yet, importantly, implied that he might have done so had the evidence been adequate: "The material provided by Mr. Tatchell makes generalised allegations and suggests possible sources of potentially admissible evidence. I have serious misgivings concerning Mr. Tatchell’s ability to actually obtain such admissible evidence. I ought not to issue any summons/warrant unless I can draft a suitably precise charge. I can not presently do this on the information provided."
- Furthermore, this Judge recognised the need of victims, witnesses and others for justice in this matter.
"I do not doubt the strength of feeling in him and many others that justice requires that Mr. Kissinger should face the allegations made against him in a court of law."
Understanding these points could facilitate the ability of advocates and victims to bring future proceedings in England under the Geneva Conventions Act 1957, be they against Kissinger or others who have allegedly committed war crimes. It could also spark further research into the consistency of the consent requirement for initiating proceedings with the rights enshrined in the European Convention of human rights, including the right to an effective remedy, among others. Finally, the supportive words of the judge may even strengthen the efforts of those affected by the crimes in question to obtain justice.
OVERVIEW - Kissinger Watch #5
1. 'WAR CRIMES' CLAIMS: Kissinger begins to stoop under the weight of legal scrutiny opinion bears down Pinochet judge leaves the way open for charge against Kissinger Court rejects application to arrest Nixon's right-hand man over covert CIA activities in the 1970's
2. Kissinger admits possible errors on Vietnam
3. Explanatory note regarding legal proceedings sparked by Kissinger’s visit to London
4. APPLICATION FOR A WARRANT FOR THE ARREST OF HENRY ALFRED KISSINGER
5. REASONS for refusing the issue of a warrant
6. Why Milosevic, but not Kissinger?
7. Kissinger testimony pleas refused
8. Chile/UK: UK shirks its obligation to cooperate in human rights investigation
9. The government of the United Kingdom DID approve its request to question Henry Kissinger
10. Statement: Regarding the Spanish court’s request to question Mr. Henry Kissinger / J. Garces & M. Murillo
11. Spanish superjudge asks USA for permission to quiz Kissinger
fair use
http://www.icai-online.org/56474,46136.htm