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The New York Times, 26.3.00

Pinochet´s Revenge: Oliver North, You´d Better Watch Out. By JAYSON BLAIR

Imagine that the year is 2005 and that Oliver North, the retired Marine lieutenant colonel and former National Security Council staff member in the Reagan White House, is on trial in Lebanon. He has been arrested while vacationing in Switzerland on an international murder warrant issued by Lebanon. The charge is that he helped direct the 1986 bombings of Libya that killed 31 people.

Libya had long sought his arrest, but in the end it was a Lebanese judge who obtained it, by joining the case and requesting that the Swiss authorities detain North and then extradite him to stand trial in Beirut on charges of crimes against humanity and aggression.

Imagine further that North is then convicted and the headline in one American newspaper roars: "Military Aide to Reagan Convicted of Murder for Official Act."

The events have not happened, of course, but international legal experts say that in the wake of the near-extradition of Gen. Augusto Pinochet of Chile to Spain, it is no longer so hard to imagine a situation in which a former high U.S. official could be arrested while traveling and then tried in any foreign country, for crimes alleged to have been committed anywhere in the world.

Notwithstanding the notion, the likelihood that any nation would be so brazen is another matter. Issuing an indictment as a propaganda ploy is one thing; indeed, Libya already has one out on North. But these days, following through on it could subject the Libyans to far more than a writ of habeas corpus.

That is because a law of force still operates in the world, and it is not hard to imagine another set of headlines: "U.S. Demands Release of North; Economic Sanctions Threatened; Warships Maneuver."

Still, it is worth considering what might happen to someone like North when thinking about the recent rulings -- and precedents set -- in the Pinochet case by the British House of Lords. In 1998 Pinochet, in London for medical treatment, was arrested after a judge in Spain issued an international warrant based on charges related to his actions while he was the leader of Chile. The Lords ruled that he was not immune from prosecution.

If the British home secretary, Jack Straw, had not freed Pinochet earlier this year because of his deteriorating health, he would have had to face trial in Spain on charges of torture and political killings during his 17-year rule in Chile.

Widely praised by human rights organizations, the rulings have more quietly raised some eyebrows among former U.S. officials who now wonder whether they too could some day be extradited -- let us say, if the United States lost its position as the world's sole superpower -- and tried any time any judge in the world accuses them of human rights violations.

In an interview, North said, "It limits my travel to certain countries."

It has some legal experts asking: Could Henry A. Kissinger be put on trial overseas as an architect of policy during the Vietnam War, which included bombings of Cambodian villages and intensive bombings of Hanoi?

What about President George Bush or his secretary of state, James A. Baker III? Could they be held responsible for deaths tied to economic sanctions related to the Persian Gulf war in Iraq? Or what about President Clinton? After he leaves office, could he face trial for the bombings of a factory in Sudan that was mistakenly believed to be a chemical weapons plant?

Some congressional Republicans have argued against the expansion of international criminal courts, which they say could hamstring U.S. leaders who fear being prosecuted after they leave office for official acts they committed. The legal rulings in the Pinochet case rejected an argument that the general was immune from prosecution by virtue of his official status, and legal experts say the case also expands the power to criminally prosecute certain human rights violations -- that occur anywhere -- to the courts of every nation.

"What we have done is restricted the travel opportunities for people like Henry Kissinger, Wesley Clark and Bill Clinton," said Michael Byers, a professor of international law at Duke University. "We have reduced their options in traveling to rogue states and their allies."

Robert Vieteretti, the managing director of Kroll Associates, the New York-based international security firm that provides personal protection, said his company is now much more concerned "with a country's laws, its alliances and anything our clients may have done to anger those nations."

Privately, some former U.S. officials said the FBI has warned them not to travel to some countries, including some in Europe, where there is a risk of extradition to other nations interested in prosecuting them.

For now, Byers says that former U.S. officials do not need to worry "unless they are foolish enough to travel to some place like Iraq." Experts say that the reason is simple. If, as the saying goes, to the victor go the spoils, so too with history: the triumphant get to tell the story of what happened and to name the heroes, the pardonably mistaken and the villains when the conflict has ended.

"The political reality is that it is very remote," said Jonathan Charney, a law professor at Vanderbilt University and the editor of the American Journal of International Law. "Why? Because we are the superpower. It would be dangerous for another country to do that economically, politically and otherwise."

In an interview last week, Kissinger said he believed that the "very complicated" issues surrounding the Pinochet rulings needed further study. But he added that he was not concerned. "I don't think the well-known people are as much in danger," he said. "I certainly don't worry."

But North said that all it would take would be the slightest change in the political winds.

Pinochet was supported by the British when he was their ally in the war against Argentina over the Falkland Islands. "Here is this person who aided and abetted their cause, helped bring about democracy," North said. "And now because of this political sea change in Great Britain, now the country is going to turn him over to a third-party country to have him prosecuted. That's disgusting."

Patricia Derian, the first assistant secretary of state for human rights, said she could foresee the day when U.S. officials would be prosecuted for acts similar to those that might be attributed to Baker, North or Kissinger.

"It is a stretch right now with the current rules of war and diplomacy, but I think it is going to come," said Derian. "It would be interesting to see what would happen if Kissinger went to Cambodia, or they just put out an international warrant for his arrest."

March 29, 2000

Letter - Prosecuting War Crimes

To the Editor:

"Pinochet's Revenge: Oliver North, You'd Better Watch Out" (Week in Review, March 26) blurs the distinction between justified and unjustified prosecutions.

If United States officials commit war crimes or other atrocities and face no prosecution at home, the rest of the world justifiably seeks their prosecution elsewhere.

But there are procedural safeguards against politically motivated, unjustified prosecutions, as illustrated by the British courts' scrupulous regard for due process during the extradition case against Gen. Augusto Pinochet.

True, a hypothetical Libyan or Iraqi court might not care for such procedural niceties, but that makes all the more baffling our government's opposition to the emerging International Criminal Court, where rigorous fair trial standards would prevail.

Advocacy Director, Human Rights Watch
New York, March 27, 2000

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