Nebraska's Own Kurt Waldheim

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Will Senator Kerrey be turned over for trial before an ad hoc International Criminal Court?

There is, at present, no permanent International Criminal Court, but many nations are working toward that goal. The reason for this is that the International Court of Justice does not have jurisdiction over criminal matters.

In all seriousness, I have grave concerns about the nature of an International Criminal Court. Professor Henry King of Case Western Reserve University Law School (my alma mater), who was a Nuremberg prosecutor, maintains that the International Criminal Court is needed to "pierce the veil of sovereignty." Sovereign nations, you see, are reluctant to hand over their own citizens to be punished by foreigners, and for good reason. Once a sovereign state begins to allow other states to "pierced its sovereignty," it is hard to stop the piercing until the state is no longer sovereign. This is the essence of Jesse Helms’ opposition to the establishment of an International Criminal Court (for which, among other reasons, Helms is greatly reviled).

Despite American insistence on trying Serbs in front of the International Criminal Tribunal for the Former Yugoslavia, the United States should not — repeat not — turn Kerrey over to any international organizations for trial. This would set a very bad precedent, as it would represent American acquiescence in the limitation of national sovereignty in favor of international tribunals. That is a road which the US would be utterly foolish to go down. Instead, the United States should use the Kerrey case as an opportunity to wholly repudiate the notion of a permanent International Criminal Court, much as President Bush recently repudiated the 1972 ABM Treaty — which the Soviets had broken long ago with the installation of massive radar arrays.

On the other hand, following the Israeli practice of trying war criminals in Israel, it might be wondered whether Senator Kerrey should be turned over to the Vietnamese for trial. I do not know enough about the Vietnamese system of justice to determine whether this might be a good idea. It appears that Vietnam may have a good claim to jurisdiction: the alleged crimes took place in Vietnam, and Vietnamese citizens were killed. Additionally, if the United States were to simply ship Senator Kerrey to Vietnam for trial, this would not be a piercing of American sovereignty. It would simply be the extradition of an accused criminal to face trial. Of course, the likelihood of such an event ever happening is exactly zero.

The proper course of action, then, would seem to be for Senator Kerrey to be investigated by the American system of justice — whether in a federal criminal court or before a military tribunal.

Wherever Kerrey might be tried, such a case would not be without precedent in the annals of the American military. B.G. Burkett, who won a Bronze Star in Vietnam, told Newsmax that

In the last 11 months of [World War II], 1,000 GIs were tried for capital crimes — mostly crimes against civilians; 443 were condemned to death and 96 were executed. Wartime censorship kept news of the executions from filtering back home.

By the way, Burkett, the author of Stolen Valor, does not believe Kerrey’s account of what happened. As Newsmax reports,

"These people out there in the bush, they had little slit trenches, foxholes, kind of built into their little hootch," recalls Burkett. "So the second the firing started they’d just get down below ground level."

"They wouldn’t have come running out, clumped up in front and gotten gunned down."

Even if, for some reason, the villagers had emerged from their huts in the midst of the firefight, Burkett said, "the likelihood of being able to kill every single one of those people in the dark is about zero. Remember, these civilians were unarmed and weren’t firing back so Kerrey’s unit wouldn’t have had much of a target in the dark."

Remember, Burkett was there. He won a Bronze Star.

It is absolutely essential to justice and the rule of law that Senator Kerrey face an inquiry and formal charges. Republicans, after having prosecuted President Clinton for the comparatively insignificant charge of perjury (lying under oath), cannot decide not to investigate Senator Kerrey for charges of murder — unless, of course, the Republicans are a bunch of politically-motivated hypocrites.

Credible allegations have surfaced that Senator Kerrey committed in a war crime in Vietnam. This is not the sort of thing that can simply be ignored…and yet the American media will hear none of it.

Where have all the editorial cartoonists run away to hide? You know, the cartoonists who savaged Timothy McVeigh for his comment that those killed in Oklahoma City were "collateral damage."

If the allegations against Kerrey are true, the damage was not even collateral. The "damage" was direct, intentional, excecution-style mass murder.

And Bob Kerrey, ex-Senator and university president, sits awaiting, perhaps, the Democratic nomination for the presidency in 2004.

Ultimately, being a bit cynical, I will not be surprised if Bob Kerrey becomes another O.J. Simpson. Of course, the cases are not perfectly analogous. Kerrey would need to be put on trial first, which I do not think will happen. Additionally, even if Kerrey were tried and acquitted, there is no "real killer" to track down. The killers were Kerrey and his men. The legal question is whether the killings are homicide or an excusable and unfortunate accident.

Remember Kurt Waldheim? He was in the news so long ago that he is now listed in encyclopedias, such as the Columbia Encyclopedia, which reminds us that "In 1986 he was elected president of Austria, despite the scandal caused by the revelation that he had been an officer in a German army unit that committed atrocities in Yugoslavia during World War II; he denied any knowledge of the atrocities. An international investigation cleared him of complicity, but many felt he must have known more than he revealed. His tenure as president was marked by international isolation, and he did not run in 1992."

Well, you may say, Waldheim denied all knowledge, while Kerrey has not. Despite this blunder, Kerrey has generally done a fine job of emulating a great American liar: Bill Clinton. As Mark Steyn writes,

the Kerrey defenders are now offering textbook Clinton 101: a) Everybody does it; b) OK, maybe mistakes were made, but the real problem is the system in general; c) Anyway, it’s a private matter; d) Trash the motives of your opponents; e) If you have to, step up to the plate and admit shame, pain, moral anguish, betrayal of those you love, etc., anything but legally admissible guilt. So there was Bob Kerrey on TV on Tuesday night: "I went out on a mission and, after it was over, I was so ashamed I wanted to die."

As many other commentators have asked: what was Bob Kerrey ashamed of, if he did nothing wrong?

Despite Kerrey’s denials, the evidence strongly indicates that Kerrey and his SEAL team did something very wrong. Despite an extended firefight, women and children were found dead in a huddled mass — suggesting that they had been rounded up for execution.

Senator Kerrey cannot be placed above the law, any more than President Clinton should have been.

Justice and the rule of law demand an investigation. May God have mercy on Senator Kerrey.

Mr. Dieteman [send him mail] is an attorney in Erie, Pennsylvania, and a PhD candidate in philosophy at The Catholic University of America.

© 2001 David Dieteman

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