Statesman or War Criminal?

by Michael P. Scharf

The Trial of Henry Kissinger, by Christopher Hitchens. London/New York: Verso, 2001.

Henry Kissinger has been America’s best-known Secretary of State. Though he received the Nobel Peace Prize in 1973 for negotiating the end of the Vietnam war, Kissinger’s legacy is unquestionably a mixed one. He played a critical role in achieving détente with the Soviet Union and opening up relations with the People’s Republic of China, and his shuttle diplomacy in the Middle East paved the way for the Camp David Accords a few years later. Yet, his involvement in the bombing of Cambodia and his support for tyrannical regimes under the visage of realpolitik came at the expense of U.S. regard for international law and human rights. For this, Kissinger perhaps deserves history’s moral condemnation.

In The Trial of Henry Kissinger, British journalist Christopher Hitchens seeks to make the case that Henry Kissinger deserves not only censure but also to be criminally prosecuted for war crimes and crimes against humanity. The book is a slightly expanded version of two articles for Harpers Magazine published by Hitchens earlier this year. Drawing on the recent Pinochet case before the British House of Lords, Hitchens argues that Kissinger should be prosecuted under universal jurisdiction for “ordering and sanctioning the destruction of civilian populations, the assassination of inconvenient politicians, the kidnapping and disappearance of soldiers and journalists and clerics who got in his way.” The chapters of the book are laid out like the counts of an indictment, covering Kissinger’s alleged international crimes relating to Indochina, Bangladesh, Chile, Cyprus, and East Timor, followed by a concluding chapter that describes the applicable law.

For the record, this reviewer is every bit the opponent of many of Henry Kissinger’s policies as Hitchens himself, and I began to read the book with the hope that Hitchens would make a compelling case. But The Trial of Henry Kissinger is not a serious scholarly work like Norman Cigar and Paul Williams’ The Indictment of Slobodan Milosevic (1994), which kindled the global call for the international prosecution of the ruthless Serb leader. Rather, Hitchens’ book is basically a 150-page diatribe. The allegations contain little that is new, many of Hitchens’ most damning inferences are not supported by the record or authorities he cites, and worst of all, his legal analysis is afflicted throughout by distortions and misstatements about the content of international humanitarian law. This may come as little surprise to those familiar with Hitchens’ previous works, in which he has taken on Bill Clinton, Princess Diana, the Dalai Lama, and even Mother Theresa. In a 1999 interview in the Baltimore Sun, Hitchens, who bills himself as a “unreconstructed liberal,” acknowledged that the purpose of his books is to “whip up hatred and contempt.”

Consistent with Hitchens’ familiar modus operandi, the tone of The Trial of Henry Kissinger is high moral outrage, bordering at times on personal abuse. Hitchens avers, for example, that Kissinger’s “manners are rather gross and his wit consists of a quiver of borrowed and secondhand darts.” Hitchens insists that before his selection to the Nixon White House, Kissinger was “a mediocre, opportunistic academic.” And Hitchens contends that Kissinger’s “single greatest achievement has been to get almost everybody to call him ‘Doctor.’” But these puerile personal assaults could be overlooked as an effort to create mass appeal for an important work if Hitchens were in fact able to make a forceful case for the prosecution of Henry Kissinger. Unfortunately, Hitchens badly misses the mark. To make the point given space constraints, this review will focus on the two allegations that Hitchens spends the most time on in the book, namely Kissinger’s alleged war crimes in Indochina and his alleged complicity in torture and murder in Chile.

With respect to Indochina, Hitchens’ first charge is that during the election of 1968, Kissinger and Nixon set out to sabotage the Paris peace negotiations on Vietnam by privately assuring the South Vietnamese military rulers that an incoming Republican regime would offer them a better deal than would a Democratic one. It should be noted that presidential candidate Ronald Reagan took similar action with respect to Iran during the hostage crisis, and presidential candidate Bill Clinton did virtually the same thing with respect to the Bosnian peace negotiations. While such action may be deplorable in light of the lives that are needlessly lost, it is not a war crime under any interpretation of international humanitarian law.

Next, Hitchens contends that the clearance operation against the infrastructure of the Vietcong waged in the Mekong Delta in 1968 could not be justified under the concept of self-defense. The only threat to the United States at the time, Hitchens asserts, was the possibility that an American pullout would have an adverse impact on Nixon’s prospects for re-election in 1972. Here Hitchens confuses the concept of jus ad bellum (which defines the legitimate reasons a state may engage in war) with the concept of jus in bello (the rules by which a war may be prosecuted, including the rules of “military necessity” and “proportionality”). With respect to the former concept, U.S. military involvement in Vietnam was the responsibility of the Kennedy and Johnson administrations, which believed such action was necessary to protect South Vietnam against overthrow by the communist North Vietnamese. Even if the war was unjust, it was not a war of Kissinger’s making.

With respect to the latter concept, civilian deaths that are incidentally caused by justifiable military operations are not a war crime. It was the Johnson Administration that in 1965 initiated the American tactics of mass airstrikes, free-fire zones, and widespread uprooting and removal of the rural population. Experts have long debated whether these tactics, which the Nixon-Kissinger administration continued and expanded upon, constituted a violation of the rule of military necessity because of the resultant disproportionate killings of non-combatants. The tactics were justified by both administrations as necessary to rid civilian areas of North Vietnamese guerrillas. The difficulty in answering the question has been due to the unique features of the Vietnamese conflict, in which the enemy did not respect the laws of war, the terrain lent itself to clandestine operations in which women and children frequently participated, and the difference between hostile and friendly Vietnamese could not be easily discerned.

Hitchens relies heavily on the late Telford Taylor’s book Nuremberg and Vietnam (New York Times, 1970) for the proposition that the American bureaucrats who designed the war in Vietnam should be prosecuted for war crimes under the Nuremberg principles. Given Taylor’s credential as one of the lead U.S. prosecutors at Nuremberg and his status as one of the foremost experts on the laws of war, this would appear to be the best ammunition for Hitchens’ case against Kissinger. However, a close reading of Taylor’s book reveals that Hitchens has shamelessly taken him out of context. The quoted passage appears in Taylor’s discussion of the Son My (My Lai) Massacre of 1969 and the pending court martial proceedings against those involved. Taylor was not referring to then-National Security Adviser Kissinger or other members of the Nixon White House. Rather, he explicitly listed the following military officials who he believed could potentially be held liable under the theory of command responsibility: General William Westmoreland, General Creighton Abrams, Lt. General William B. Rossen, and Lt. General Robert E. Cushman.

As the International Criminal Tribunal for the Former Yugoslavia ruled in the 1998 Celebic case, under international law, military commanders can be held responsible for the war crimes committed by their subordinates when the superior: (i) had “the actual possession of powers of control over the actions of subordinates,” (ii) knew or had reason to know the criminal act had been committed or was about to be committed; and (iii) failed to take necessary and reasonable measures to prevent or punish the subordinate perpetrators. While the doctrine of command responsibility unquestionably applies to military commanders, the International Criminal Tribunal for Rwanda noted in the 1998 Akayesu case that the application of command responsibility to civilian officials “remains contentious.” The Tribunal cited Judge Roling’s dissent in the case of the former Foreign Minister of Japan, Koki Hirota, in which the judge said: “Generally speaking, a Tribunal should be very careful in holding civil government officials responsible for the behavior of the army in the field. . . . Considerations of both law and policy, of both justice and expediency, indicate that this responsibility should only be recognized in a very restricted sense.” It would thus be a difficult case to make against Henry Kissinger under these recent international precedents.

While there is nothing new in the accusation that Kissinger did all he could to help topple the democratically elected Marxist government in Chile, Hitchens, relying on recently declassified CIA and White House documents, charges for the first time in print that Kissinger was personally involved in plotting the murder of Chile’s Chief of the General Staff, General Rene Schneider, who was strongly opposed to any military meddling with the electoral process. But Hitchens acknowledges that the U.S. Senate Intelligence Committee, which reviewed these same documents, concluded that since the machine guns the CIA supplied with Kissinger’s authorization to an anti-Allende military faction led by General Camilo Valenzuela had not been used in the killing of General Schneider, and since General Roberto Viaux had been officially discouraged by the CIA at Kissinger’s insistence from taking action against General Schneider just a few days before Viaux’s men committed the murder, there was therefore “no evidence of a plan to kill Schneider or that United States officials specifically anticipated that Schneider would be shot during the abduction.” An objective reading of the documents that Hitchens reproduces in the text of his book indicate that they do not in fact contradict the Senate Intelligence Committee’s findings. They certainly do not provide evidence “of direct collusion in the murder” as Hitchens contends.

Even if Kissinger had actually ordered the hit on General Schneider, such a murder would be a crime that could be prosecuted only in Chile, where it was committed. Murder of a foreign general in his own territory during peacetime would not be an international crime under the laws of war or the Internationally Protected Persons Convention, nor a crime within the jurisdiction of United States courts. Contrary to Hitchens’ assertion that “assassination was illegal both as a private and public act when Henry Kissinger was in power and when the attack on General Schneider took place,” it was not until four years after the murder of General Schneider that President Gerald Ford promulgated Executive Order 12,333, which prohibits federal employees from engaging in assassination. Moreover, the Executive Order is for all intents and purposes meaningless: since it is not a law, a president can repeal or amend the order, or even approve a one-time exception to it. Furthermore, the Executive Order has been interpreted as inapplicable to the targeting of Libyan President Moamar Qaddafi’s home during the 1986 airstrike on Tripoli, the targeting of Saddam Hussein and his family during the Persian Gulf War, or the targeting of Slobodan Milosevic’s residence in Belgrade during the Kosovo intervention. According to a memorandum prepared by the General Counsel of the U.S. Army and reproduced in the December 1989 issue of Army Lawyer, Executive Order 12,333 was not intended to prevent the United States from acting against “legitimate threats to national security.”

The recently declassified documents Hitchens cites suggest Kissinger knew that Pinochet’s secret police were committing systematic torture and assassination of political opponents. According to the transcript of a 1976 meeting between Kissinger and Pinochet, Kissinger indicated that the United States was sympathetic to what Pinochet was trying to do in Chile and approved of his methods. Pinochet may have taken this as a green light to proceed with torture and killing through 1990. But this does not amount to conspiracy or aiding and abetting to commit crimes against humanity under international criminal law. In fact, Kissinger’s actions are not so different from Secretary of State James Baker’s 1991 statement to Slobodan Milosevic that the U.S. supports his efforts to try to hold Yugoslavia together, coupled with his statement a few months later in the context of Milosevic’s bloody attacks against Slovenia, Croatia, and Bosnia that the United States “does not have a dog in that fight.” These statements may represent bad foreign policy, but they do not constitute conspiracy to commit crimes against humanity.

Under the British Pinochet precedent, and with the pending establishment of a permanent international criminal court (ICC), a growing number of countries are expanding their laws to enable them to prosecute war crimes and crimes against humanity without regard to the territory where the crime occurred or the nationality of perpetrators or victims. The justifications for such universal jurisdiction are (1) that war crimes, genocide, and crimes against humanity are so heinous in scope and degree as to offend the interest of all states; and (2) the problem of government complicity in the crimes or unwillingness to prosecute is avoided by vesting jurisdiction in all states.

While the ongoing expansion of universal jurisdiction should be generally celebrated, there is also cause for concern that such prosecutions may be politically motivated, carried out without due process, or based on novel interpretations of international law. Indeed, as this review was being written, newspapers reported that Palestinian survivors of the 1982 massacres at refugee camps perpetrated by Lebanese Christian militia allied to Israel have initiated a criminal case against Israeli Prime Minister Ariel Sharon in the courts of Belgium. An Israeli inquiry at the time had found Sharon, then defense minister, “indirectly responsible” for the atrocity. The Belgian government, concerned at the prospect of dozens of new cases from around the world (perhaps even including a criminal complaint against Henry Kissinger) and fearful of the political and diplomatic implications, has announced that it plans to amend its universal jurisdiction law.

The risk of politically motivated prosecutions of U.S. officials and personnel is the main reason many Americans oppose the establishment of the ICC. While the safeguards built into the Rome Statute render such prosecutions extremely unlikely, Christopher Hitchens’ call for the trial of Henry Kissinger for war crimes and crimes against humanity in a foreign or international tribunal only fuels the popular appeal of the anti-ICC argument. Whether or not you agree with this reviewer’s conclusion that Hitchens overstates the legal case against Henry Kissinger, the point that Hitchens misses is that Kissinger is not in the same league as the World War II Nazi leaders responsible for the Holocaust, the Khmer Rouge leaders responsible for crimes against humanity in Cambodia, the Serb leaders responsible for atrocities in Bosnia, the Hutu leaders responsible for genocide in Rwanda, nor the Iraqi leaders responsible for war crimes and crimes against humanity in Kuwait, Iran, and northern Iraq. These are the types of perpetrators whom universal jurisdiction and the international criminal court were meant to deal with, not the Henry Kissingers or Ariel Sharons of the world.

Finally, Hitchens takes great joy in the belief that Henry Kissinger has curtailed his foreign travel due to fear that he could be prosecuted by a foreign court. In this, too, Hitchens is mistaken. A Lexis search of foreign newspapers indicates that Kissinger cut back on his travel last year because he was recovering from heart surgery, and in recent months he has renewed his busy foreign travel schedule, undeterred by Hitchens’ call for his prosecution abroad.

For more on Michael Scharf read George Scialabba's “Letter to the Editor”

 

Michael P. Scharf is a professor of law and director of the Center for International Law and Policy at New England School of Law. From 1989 to 1993 he was attorney-advisor in the U.S. Department of State's Office of the Legal Adviser. While at the State Department, he was also a member of the U. S. Delegation of the United Nations General Assembly and to the UN Human Rights Commission. He was co-author, with Virginia Morris, of An Insider's Guide to the International Criminal Tribunal for Rwanda (Transnational Publishers, 1998), which won the 1999 American Society of International Law. (2001)