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  • Human Rights Research Center

Henry Kissinger, Symbol of Impunity

Author: Ashlye Meyer

December 12, 2023



War criminal, racist, and antisemite sympathizer Henry Kissinger has died. Kissinger was 100 years old. Kissinger was born in Germany to German-Jewish parents. His family came to the United States in 1938 as refugees fleeing Nazi persecution. Kissinger’s start in life is in stark contrast to his end. Kissinger died in his Connecticut home as a long-time symbol to the American left of the evil of American impunity. Kissinger is probably the United States’ most notorious war criminal, only to come before the likes of Dick Cheney and Donald Rumsfeld. The disasters and destruction that Kissinger wrought in countries like Cambodia, Vietnam, and Laos are unspeakable to those who have not spent time to study it and breathe it in. And yet, Kissinger is notorious even to those who have not dedicated their lives to U.S. politics or world affairs.


Kissinger was a highly educated man; he had a doctorate from Harvard, and later in life, he controversially won the Nobel Peace Prize (Kissinger later returned the award). He began his political career as National Security Advisor and Secretary of State to President Richard Nixon. Kissinger is partially responsible for what we now refer to as Operation Menu and Operation Freedom Deal: bombing campaigns he helped lead with President Nixon in Cambodia. While Kissinger was, in fact, initially against the bombings in Operation Menu—fearing that President Nixon was looking rash—Kissinger quickly changed his tune. Nixon’s chief of staff wrote in his journal the next day:


"Historic day. K[issinger]'s "Operation Breakfast" finally came off at 2:00 pm our time. K really excited, as is P[resident]… K's 'Operation Breakfast' a great success. He came beaming in with the report, very productive. A lot more secondaries than had been expected. Confirmed early intelligence. Probably no reaction for a few days, if ever."


Kissinger and Nixon went to great lengths to keep the bombings from the American people, as well as from Congress—something which is unconstitutional. Many historians believe Kissinger and Nixon’s plot was not only unconstitutional but unhelpful; it hampered the pacification campaign that was already gaining traction in the region. United States intervention was likely only to oust a possible communist leader. Most of the Cambodian bombings were in support of its right-wing government of Lon Nol and against the more communist Khmer Rouge. After the bombings, Kissinger is said to have relayed one of Nixon’s orders by saying, “A massive bombing campaign in Cambodia. Anything that flies on anything that moves.” During 1973, the Operation Freedom Deal aircraft dropped over 250,000 tons of highly explosive bombs on the area. Nearly 600,000 to a million civilian casualties have been reported, but this number is disputed, with some historians arguing that the number is much larger. Later in life, when asked to comment on the Operation Menu bombings, Kissinger said, “I may have a lack of imagination, but I fail to see the moral issue.”


Kissinger was involved in more than just two horrific acts of war. This article will not simply be a retelling of all of Kissinger’s horrid doings—there simply is not enough room on the page. I would be remiss not to talk about the My Lai massacre, Argentina, Cuba, the East Timor genocide, and I could go on. In this short piece, I wish to examine why exactly Kissinger was never charged with a crime, why American government officials enjoy almost complete impunity, and why Kissinger’s legacy of privilege from punishment harms the rule of law. The New York Times’ Nick Turse puts it excellently, “That legacy [of impunity] still reverberates, and not just in bombed and brutalized Cambodian villages. His disregard for civilian casualties in war established a blueprint for the projection of U.S. military power that would have deadly consequences for civilians in Iraq, Afghanistan, Somalia and Syria, among other places.”



What is a War Crime?


A war crime is a violation of the law of war that gives rise to individual criminal liability for actions combatants take during combat. People are classified in two ways during war: combatants and civilians. Perhaps the main law of war is that combatants can be killed almost always, and civilians can be killed only when there is proportionality to military purpose. For example, if there is an empty apartment building with two civilians in one apartment and Hitler and his entire teams in another apartment, the law of war tells us it is legal to blow up the building even if those two civilians are harmed or killed. This is the law of proportionality. Because Hitler is such a big military target, the military objective outweighs the safety of civilians. This is just an illustrative example.


Let’s take a real-world example. Is dropping over 250,000 chemical bombs on civilians proportional to the military objective of not wanting a communist leader? No, not even close. Because we have harm to civilians and a lack of proportionality, the odds are this is a war crime under international law. But a case does not go straight to an international court. It has to start in a domestic court, and that leads to other problematic questions, like who ought to be charged for the crime. While Kissinger may have given directives, he was not the only one involved in the carpet bombing of Cambodia.


Who Can be Prosecuted for a War Crime?


The next question is who would be charged and indicted for this crime. War crimes come with individual criminal responsibility, which means the individual person is charged with a crime—not the state as a whole, which is how some international courts operate. The answer, in short, is any human being engaged in armed conflict may be charged with a war crime. Historically, there are two popular defenses to war crime liability: the first being that the individual himself did not commit the act. In war, there is a hierarchy. Men often commit heinous acts at the direction of other men. This does not absolve the men at the top. This is called the Yamashita Standard. In 1945, General Yamashita of Japan was tried, sentenced, and put to death for the war crimes of his soldiers in the Second World War. The standard is such that a commanding officer is legally responsible for the war crimes of his subordinates—for failing to prevent such acts or by failing to properly punish such acts.


The second defense that Kissinger would undoubtedly lay odds on is that of immunity. In domestic and international law, there is a concept of diplomatic immunity. This simply means that diplomats and other heads of state have immunity for acts and omissions taken while in their official capacity. While it is unclear if a Secretary of State has the privilege of diplomatic immunity, it is most likely that all “Ministers for Foreign Affairs” enjoy diplomatic immunity in international courts. This was the language used in the International Court of Justice case, Democratic Republic of Congo v. Belgium. However, the court in that same case made it explicitly clear that the Foreign Minister would enjoy no such immunity in his or her own country and may be tried under domestic law.


Where Can One Be Prosecuted for a War Crime?


A domestic court, meaning a court in the United States, is always the court of first impression for a United States citizen being charged with an international crime on U.S. soil. When a country ratifies a treaty, part of what it does is make that treaty part of its domestic law. Unfortunately, the United States is not a party to the Rome Statute and the International Criminal Court, but the United States does have its own war crimes statute called the War Crimes Act of 1996. The Act simply states that whoever, whether inside or outside of the United States, commits a grave breach of the Geneva Conventions, commits a federal crime and shall be imprisoned for the appropriate term.


A federal prosecutor of the appropriate jurisdiction, most likely the District of Columbia, would have to bring federal criminal charges in a United States district court for one to be charged with a war crime.


Why Won’t the U.S. Prosecute War Criminals?


The United States has a long history of pardoning wrongdoing. President Ford pardoned President Nixon after the exposure of the Watergate scandal. It has been said by many that if the Justice Department ever brought charges against President Bush, President Obama would have pardoned him as well.


Clint Lorance was a First Lieutenant in the infantry for the War in Afghanistan. In 2012, Lorance commanded his unit to open fire on three Afghan men who were on motorcycles and posed no threat. He was found guilty by a United States court-martial. In 2019, President Donald Trump pardoned Lorance. Trump described him as a “hero.” In 2007, a group of Blackwater employees aimlessly shot at a group of Iraqis in Nisour Square. They murdered seventeen people. The Blackwater employees were tried and convicted in 2014. In 2020, President Trump pardoned them and described the men as having a “long history of service to the nation.” The culture of impunity for crimes that go unseen to American citizens persists, even on a smaller scale. This is particularly troubling in Kissinger’s case—a domestic court is arguably the only court that could legally exercise jurisdiction over him, and for over fifty years, no court in the country had the will to do anything. The United States and its imperial allies continue to put war criminals on pedestals, human rights obligations on the backburner, and turn a blind eye to the law of war.


 

Glossary


Antisemite: A person who feels or shows hostility toward or discrimination against Jews as a cultural, racial, or ethnic group.

Court-martial: A court consisting of commissioned officers and in some instances enlisted personnel for the trial of members of the armed forces or others within its jurisdiction.

Impunity: Exemption or freedom from punishment, harm, or loss.

Pacification: To appease, restore to a tranquil state, or reduce to a submissive state.

Pardon: A release from the legal penalties of an offense.

Proportionality: Corresponding in size, degree, or intensity.


 

Sources


  1. Kill Anything That Moves: The Real American War in Vietnam (American Empire Project) by Nick Turse

  2. https://www.nytimes.com/2023/12/01/opinion/international-world/kissinger-cambodia-war-legacy.html

  3. https://www.nytimes.com/roomfordebate/2015/04/29/lessons-40-years-after-the-fall-of-saigon/in-vietnam-callous-use-of-power-led-to-years-of-civilian-misery-3

  4. The War Crimes Act of 1996, 110 Stat. 2104.

  5. The Geneva Conventions

  6. https://ihl-databases.icrc.org/en/customary-ihl/v1/rule156

  7. https://www.vox.com/politics/2023/11/30/16454260/henry-kissinger-obituary-cold-war-100

  8. https://www.reuters.com/world/us/henry-kissinger-dominant-us-diplomat-cold-war-era-dies-aged-100-2023-11-30/

  9. Lorance v. Command Disciplinary Barracks (2021).

  10. https://www.nytimes.com/2007/11/14/world/middleeast/14blackwater.html

  11. Democratic Republic of Congo v. Belgium (2000).


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