MIA SWART: Kissinger and the myth of Western accountability

Around the early 2000s, with the rise of universal jurisdiction and a new wave of war crime prosecutions, it was asked whether figures such as George Bush, Henry Kissinger and Tony Blair could safely travel the world, since they may run the risk of being arrested for war crimes.

With Kissinger’s death aged 100 last week, the question of Western leaders’ accountability for war crimes became acute again.

Human rights lawyer and veteran war crimes prosecutor Reed Brody said after Kissinger’s death: “There were few who have had a hand in as much death and destruction; as much human suffering, in so many places around the world as Henry Kissinger.”

Much of the criticism of Kissinger stems from the ruthless ways in which he undermined perceived US enemies to strengthen its allies. He is known for expanding the Vietnam War into Cambodia and spearheading the US’s aerial bombing of Cambodia. It is a little-known fact that, on Kissinger’s advice, the US dropped more bombs on Cambodia than the allies dropped in total during World War 2.

Kissinger was known for accelerating civil wars in Southern Africa and supporting coups and death-squad activities in Latin America. He helped oust Salvador Allende in Chile and replaced him with military dictator Gen Augusto Pinochet. 

In direct defiance of the movement towards universal jurisdiction Kissinger expressed his views in the 2001 Foreign Affairs article “The Pitfalls of Universal Jurisdiction”, in which he claimed a Spanish judge should not have the power to extradite Pinochet for war crimes committed in Chile. In 2002 Chilean human rights lawyers brought a criminal case against Kissinger himself. Needless to say, he was never prosecuted. 

November 30 marked the 50th anniversary of the 1973 International Convention on the Suppression and Punishment of the Crime of Apartheid (also known as the apartheid convention). This called on its signatories to adopt measures to prosecute and bring to trial people responsible for the crime of apartheid. Yet in more than 50 years no-one has been prosecuted for the crime of apartheid.

It can be said that the history of prosecuting apartheid in SA is a history of missed opportunities. The only case that now holds some promise is the Cosas Four case, involving the deaths of anti-apartheid activists. In this case apartheid has finally made it onto the charge sheet. But the delays in the Cosas Four case means it is unlikely that it will result in a successful prosecution of apartheid era-crimes that could serve as a precedent for countries such as Palestine that have also been subjected to the crime of apartheid. 

 Over the past weeks the ANC has again positioned itself as a strong supporter of Palestinian self-determination, and prominent anti-apartheid activists and party leaders have long made analogies between SA apartheid and Israel's occupation of Palestinian territory. But this is deeply contradicted by SA’s inability to prosecute apartheid as a crime in its own courts, a failure that has implications beyond SA. 

SA has referred the Palestinian situation to the International Criminal Court (ICC). Though this initiative has symbolic value, it is unlikely that it will result in a successful prosecution of Israeli war crimes. Over the last week Palestinian human rights groups refused to meet ICC chief prosecutor Karim Khan because of his perceived bias towards Israel. They claim his actions and statements since October 7 indicate that he prioritises investigating the crimes committed by Hamas over crimes committed by Israel.

Whereas Khan has visited Israel and the West Bank, he has not yet visited Gaza and has not explained why he has not been given access. This stands in stark contrast with his prompt response to war crimes committed in Ukraine. And it is consistent with the ICC’s unwillingness to prosecute any Western leaders over the 20 years since the court was created. This selectivity remains the achilles heel of international criminal justice and erodes its credibility.

In light of the strong and steadfast support Israel receives from the US, the latter should be charged for being complicit in the war crimes committed by Israel. But the likelihood of the ICC prioritising the prosecution of war crimes committed in Gaza remains precariously slim.

As Kissinger’s diplomatic longevity illustrates, holding the West accountable remains but a distant dream. 

• Swart is a visiting professor at Wits Law School specialising in human rights, international relations and international law. She writes in her personal capacity.