The Trial of Henry Kissinger (2001)

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Book review: Hitchens, Christopher (2001). The Trial of Henry Kissinger. New York: Verso.

Hitchens casts himself as a political opponent of Kissinger in the preface to the book, which is as good and time-honoured a reason to write a scalding denunciation of the man.

Trial of Henry Kissinger book jacket.

Coming to the polemic as an interested reader of Hitchens’s columns and books, and compelled by his untimely but not entirely unexpected death (least of all by him), I was in two minds. All men with their hands on the levers of power are, to an extent, indictable for atrocious crimes, but how do you indict leaders of the past without ensuring collusion by the present bunch to prevent exactly that happening to themselves?

More importantly, why would the public now support prosecuting a man they didn’t push to have indicted at the time? Leaving aside the convincing arguments made by Hitchens about the culpability of Kissinger in not only crude war crimes, but directly in single murders, what would make the American public, around 40 years on, accept that it had made a mistake to remain silent on Kissinger for so long, and that he should now be held accountable for his crimes?

I don’t see an answer to this question in the book itself.

It seems that Hitchens, who never mentioned it directly, saw the feasibility of launching a prosecution against Kissinger as arising from the public immolation of the Nixon presidency in the 1970s, but mostly from the appalling profiteering of the consultancy Kissinger Associates, which has benefited enormously from Kissinger’s former foreign policy interventions around the globe.

It is a matter of record that Kissinger was not prosecuted for any crime committed while acting on behalf of the US government as a senior public servant. He was National Security Advisor to Presidents Nixon and Ford between 1969 and 1973, as well as Secretary of State between 1973 and 1977.

The author recorded his disappointment, and understanding, about the flat reception of his book in his memoir, Hitch 22. The reason for a less than even controversial reception of his charges was the Twin Towers atrocity in New York on 11 September 2001.

Nevertheless, I read the book, which cast me and other readers in the rôle of the jury of a hypothetical trial, and it engaged me sufficiently to re-examine my thinking about specific historical events (through which I lived) and Kissinger in particular. What is my verdict? To answer that I must step through prosecutor Hitchens’s arguments.

Henry Kissinger (1923- ), still active in his 90s, seen here with XI Jinping (1953- ), General Secretary of the Chinese Communist Party in 2019.
Henry Kissinger (1923- ), still active in his 90s, seen here with XI Jinping (1953- ), General Secretary of the Chinese Communist Party in 2019.

The 1968 ‘secret’

First up is the ‘political trick’ of 1968, whereby a ceasefire with North Vietnam was scuttled by Nixon, on Kissinger’s advice, to win the presidential election, only to have the same ceasefire be re-negotiated at a distance of some years. The crime? Prolonging the war and costing thousands of extra lives. The verdict? Machiavellian politics, but not unknown or even unusual. I am inclined to say that the guilty party here was the American voting public, which fell for the ploy and didn’t push Nixon or Kissinger hard enough on it at the time.

What does it say about Kissinger? He is a liar, opportunist and callously disinterested in the human cost of his advice. Is that a crime? If it is, many, many politicians and public servants are criminals. That’s not, in my opinion, enough to hang him without also hanging Nixon himself, and also Ho Chi Minh, Le Duan, Harold Wilson, Ted Heath, Leonid Brezhnev and Andrei Gromyko, among many others.

Indochina

On the broader question of Indochina, including not just Vietnam, but also Laos and Cambodia, it is irresistible to conclude that American policy was so morally deficient as to make it almost appear like the invention of a psychopath. But that dialogue has already played out in the American public arena, and around the world. Still no impetus to prosecute anyone bar Lieutenant William Calley. Why not?

I come back to what I said about the culpability of the public. Perhaps Americans thought they had paid enough already in blood on their own streets, and loss of relatives in uniform, as part of the generation of protests and battles with each other.

As a non-American observer of this issue, my thinking is heavily swayed by two quite distinct considerations: the justification for the US intervention in Indochina in the first place; and the public oversight of elected and unelected officials.

It seems obvious that the point of fighting a war is to win it, and since at least Clausewitz, but probably significantly earlier, the easiest way to win a war is to remove the enemy’s ability to fight the war. This was never an American objective in Indochina. Instead a series of ill advised, adventurist positions were taken to meddle, without any clear idea of outcome, or even any set of goals that would lead, demonstrably or convincingly, to an end of the meddling. The responsibility for this plan to fail at all levels of US involvement in Indochina came at the cost of hundreds and thousands of lives. The most guilty sat in Washington, Hanoi and Saigon offices. Those who should have held them accountable were citizens who were too committed to the bloodshed, or too scared to speak up, or too indifferent. In the US this was the electorate who allowed its representatives to escalate US commitment for a decade.

It appears that Kissinger had a flagrant disregard for human life in the policy positions he advised. More Machiavelli and Clausewitz than Metternich. Because of that disregard for human life he might be accused of having a flagrant disregard for American interests (the lives of its soldiers, for one) and that he could be rightly held accountable for them, but he was not. Hitchens is right to allege he has a lot to answer for, nevertheless, beyond the broad attack on ‘war crimes’, I still have no idea what the specifics of the charges would look like.

Do we think of him, here, as we did of Joachim von Ribbentrop, the de-facto Nazi foreign minister who was tried and convicted of war crimes?  He was hanged in 1946, but so were quite a number of other Nazis.  Finding Kissinger guilty in the same manner would require finding many, many others also guilty.

The second point, about the ultimate sovereignty of citizens, is more intractable. Voters in liberal democracies elect representatives on the basis of policies and whatever indications might be perceptible about the way candidates might react to specific circumstances. There are also unelected appointments to high office. And there are checks and balances. Kissinger was highly visible, and a large target for political attacks or retribution. If all the various levers of the checks and balances failed to indict him for war crimes, or other wrongdoing, the last levers are the news media and the voting public. If these remained sufficiently silent on Kissinger’s rôle on US Indochina policy it seems irresistible to argue that the American public consented to his actions.

In other words, Hitchens’s jury has found Kissinger not guilty by default. I, as a minority on that jury, find Kissinger guilty of complicity in the deliberate mass murder of Indochinese civilians, and the loss of life of thousands of US troops by negligent actions.

Christopher Eric Hitchens (1949-2011).
Christopher Eric Hitchens (1949-2011).

Chile

Hitchens’s case against Kissinger in relation to the Chilean military coup is much clearer. Kissinger suborned assassination and at least knew of the direct supply by the US of the weapons to be used in that assassination. It is also clear that the assassination of General Rene Schneider in 1970 was the intended precursor to a coup to oust the democratically elected Salvador Allende, which duly took place in 1973. Any rôle Kissinger played in these events is strictly contrary to US laws. The fact that Hitchens can present the evidence means it is not secret (any more).

It is unclear from Hitchens’s exposition whether Kissinger motivated or merely carried out his president’s policy instructions. However, in a charge against Kissinger, it is clear he was senior enough to know, or to have been required to know, the laws constraining his position, and therefore the actions authorised by him of the US exerting influence outside its borders.

Why was Kissinger not indicted for treason, or some lesser offence? A failure in the House of Representatives and the Senate to motivate the preferment of charges, a failure among the nation’s highest legal officers to draft and prefer charges, a failure by the news media to reveal and publicize the extent of Kissinger’s complicity in the Schneider murder and the Pinochet coup against Allende, and finally a failure by the electorate to demand that a prosecution be mounted.

Salvador Allende (1908-1973).
Salvador Allende (1908-1973).

My verdict: guilty of conspiracy to murder a foreign citizen, and guilty of materially supporting the overthrow of a foreign government. However, mounting such charges must come from US citizens, who do not appear concerned enough to proceed, or from Chileans, motivated enough to launch an international legal proceeding, which they have not.

As a juror, I might be inclined to agree with a charge against Kissinger of complicity in the atrocities committed by the military dictator Augusto Pinochet following the coup, but that would a matter for the specifics of a separately argued indictment.

Cyprus

Hitchens’s case against Kissinger in relation to the Greek assassination of Makarios and the overthrow of his government, the subsequent Turkish invasion of Cyprus, and the ensuing atrocities, is much weaker than the Chilean example.

Kissinger can be accused of lending material aid to the Greeks on behalf of the US, and of not discouraging or censuring Greek and Turkish actions. There might be a tenuous case to say US law was broken by material aid being provided for known illegal activities, but I suspect a lesser bureaucrat than Kissinger would ‘hang’ for that ‘crime’.

The verdict? Not guilty of any crime.

The Cyprus example nevertheless goes to the character of the man, and illustrates Kissinger to be a wilfully duplicitous, disingenuous advisor, commentator and witness. This may not be unusual for officials in his position, but this does not exempt him from a moral responsibility for his actions, advice, and even inactions.  So, the Cyprus example might be cited as evidence of character, or lack of it, in other indictments.

East Timor

Hitchens’s evidence is compelling. Kissinger was in charge of the US provision of material aid to Indonesia necessary for the Indonesian invasion of East Timor, was aware about the requirement that such aid be used solely for defence purposes, not any invasion, was aware of the invasion prior to it occurring, did nothing to discourage that invasion, and then publicly lied about all these matters.

As an Australian juror I am confronted by some extraneous but pertinent factors. Portugal, and all of Europe, had had turned their backs on the former Portuguese colony after the fascist regime in Portugal was overthrown in 1974. The Australian Whitlam Labor Government had publicly abandoned the former colony to the tender mercies of Indonesia’s Suharto dictatorship. It was a green light from two important players for Indonesia, a carte blanche to act in whatever fashion it chose, regardless of the local FRETILIN independence movement.

What was America’s interest in this small piece of land in the Pacific? The biggest local US interest would have been its commercial and strategic (military) ties with Indonesia. These are legitimate interests. To support an Indonesian claim for sovereign control over the East Timorese territory is not an illegal act.

To supply conditional material aid knowing that the Indonesians never intended to meet those conditions is complicity in the invasion, but, more importantly, a breach of US law. Lying about this knowledge is another breach of law (perjury).

How could President Ford and Kissinger not have known about the Indonesian invasion, with US materiel as a critical component, when they were actually in Jakarta on 7 December 1975, the exact date of the invasion?

The verdict? Kissinger is guilty of complicity in contravening US laws about conditions attached to assistance provided to a foreign nation, and of perjury.

Henry Kissinger (1923- ), Richard Milhous Nixon (1913-1994), and Gerald Rudolph Ford Jr (1913-2006), seen in the Oval Office of the White House.
Henry Kissinger (1923- ), Richard Milhous Nixon (1913-1994), and Gerald Rudolph Ford Jr (1913-2006), seen in the Oval Office of the White House.

Elias P Demetracopoulos

The narrative is convincing about a Greek conspiracy to kidnap and murder the journalist Demetracopoulos sometime between 1970 and 1974, before the military junta in Greece was toppled. The conspiracy was so ill concealed and so badly thought-out that it was documented, and the documents fell into Demetracopoulos’s hands. The documents suggest that various US agencies would cooperate in the conspiracy, and only congressional reaction was to be feared.

It is almost impossible to believe that Kissinger did not know about the conspiracy, and that he could have, but did not intervene to directly discourage it. However, the crime was never committed, and there is no evidence that links Kissinger to direct collaboration.

The verdict? Innocent of any charge except, perhaps, moral turpitude.

Other matters

Hitchens appears to have been thorough in all he said in his book, and about not saying many other things that might have been regarded as extraneous or unprovable.

He also devoted a slim chapter on Kissinger’s post-political profit based on his former foreign policy and contacts. However, I’m inclined to argue that all fat cats profit from merely having been fat cats. That’s the nature of the patronage game. Unless it can be established that any foreign policy advice given or decision taken was directly influenced or caused by profit motive, this chapter represents, at best, a challenge to establish such evidence. Hitchens hinted at such a profit motive on East Timor, but doesn’t provide any evidence. There is no indictment here.

Finally, Hitchens made some effort to suggest the legal and regulatory frameworks under which an indictment and trial of Kissinger might have taken place at the time of publication. But, as it turned out, the events of 9/11, and subsequent extremist American foreign policy priorities scuttled any real chance that Hitchens’s book might have motivated the preferment of charges against a former senior American foreign policy advisor.

The conspicuous lacuna

There is no mention in Hitchens’s book of Kissinger’s influence on Middle East policy. A significant and conspicuous absence, since US and Soviet manoeuvring there during the 1960s to 1980s was a ‘hot’ war by proxy, with Israel as the US champion against Arab states backed by the Soviet Union.

Kissinger’s official position, pulling on the levers of foreign policy, implies that he was intimately aware of and involved in the intricacies of at least the War of Attrition 1967-1970, and Yom Kippur War of 1973, if not also the Israeli invasion of South Lebanon in 1978. As I recall it from my personal experiences, during this period there were also murderous gangs of armed terrorists roaming continental Europe, carrying out apparently indiscriminate killings.

It seems pretty certain that at least one of these gangs was Israeli. It also seems highly unlikely that neither Kissinger nor the State Department knew anything about these gangs, their targets, their locations at least part of the time, and the identities of at least some of their members. It is tempting to conclude that the innocent bystanders killed by these gangs were considered ‘collateral damage’ by the Americans, and Kissinger.

Because Hitchens presented no information about these or any associated Middle East policy matters, no charges arise, and no verdict is required, or possible from his putative jury.

It is irresistible, however, to hypothesize that Kissinger didn’t change his stripes in this policy area, but that Hitchens was sensitive to the childish American propensity to uncritically support even the most extreme Israeli policy positions. It is a peculiar form of censorship in the US, or of selective blindness, that does not serve the superpower well.

Hitchens before his illness.
Hitchens before his illness.

Personally, I cannot help but to think it strange that Hitchens, who made much of his Jewish ancestry in mid-career, should exclude in his charges, against a prominent Jew, any misdeeds directed at Israel’s antagonists. The reason this point is worth noting is that it would be easy to conclude that much Arab animosity towards the US was born in this period, and has never been put to rest. If that were the case, the American originators of a Middle East policy perceived to be hostile to Arabs was a massive foreign policy failure for which the US continues to pay a high price, including Iraq, Afghanistan, 9/11 and the frightening prospect of an ugly war with a nuclear-armed, openly anti-Semitic, anti-American, anti-West, and belligerent Iran.

Conclusions

The question has to be asked: what would be the point of pursuing an ageing man with a process bound to be resolved only after his death? Well, the answer to that is simple: even a posthumous verdict would have established precedent, which is everything in law, particularly in a fledgling field like international law.

Hitchens’s book is not a legal document, and it might be validly argued that as a ‘contrarian’, or ‘controversialist’, all Hitchens was doing was reigniting an old cause célèbre for profit and personal profile. That may be true, but it is equally true that a legitimate rôle for journalists is to uncover and publicize the unpalatable truth about high profile, powerful figures in public life.

Based on the evidence presented by Hitchens, Kissinger surely had a case to answer about breaches of US law, and, perhaps even the American constitution. If that really is the case, and not being an American lawyer, I am unable to adjudge this matter with canonical authority.  But it seems more than remarkable that Kissing was never charged, much less tried.

Why had Kissinger’s undoubtedly many enemies not made this happen? I suspect that it would have created an outcome that was the one thing all lawyers want to avoid: an unknowable, unpredictable precedent with massively complex and potentially hugely destructive consequences — destructive of many, many Washington careers and reputations, not to speak of a great loss of face internationally.

To that extent I think it fair to judge Hitchens naïve, or, perhaps just querulous. It may well be that he was always fully aware that no one in Washington wants a precedent whereby Secretaries of State, and their subalterns, can be held retrospectively and criminally liable for their actions in executing their office. That, in itself, is not greatly confidence inspiring, but unarguably hard reality about that type of job.

This brings me back to my ongoing critique of the voting public. It is this group of citizens who can still demand, and pressure their representatives into opening an inquiry, drafting an indictment, and conducting even a posthumous trial. I see no evidence that there is a groundswell of such sentiment in the US. That may be partly due to the passage of time, partly because of intervening momentous events, and partly because of public apathy about such crimes as are mentioned by Hitchens. In that regard, he did what he could to draw attention to an issue he obviously feels passionate about. That 9/11 occurred almost immediately after he published his book was unfortunate for that book, much more so for all the dead and bereaved, and fortunate only for Kissinger and his estate.

C’est la vie. C’est la guerre. C’est la mort.

Given that Hitchens, too, is now dead, and outlived by the older Kissinger, I suspect nothing much will come of his passionate argument, except that he did change at least my mind about Kissinger, and by leaving behind him words in print with the power to persuade and make people think. That, I think, is the highest tribute I can offer Hitchens, and it is sincerely given.

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