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TO: Professor Franklin Siegel (Constitution and Foreign Affairs)
FROM: Stephen Cheng
DATE: Wednesday, December 8, 2021-Sunday, January 2, 2022
RE: Seminar term research paper
HENRY KISSINGER: A WAR CRIMINAL STILL AT LARGE
Background:
The context for this seminar term paper derives from the diplomatic, political, and
military histories of the mid-to-late twentieth century United States of America. To narrow down
the extreme broadness, this paper’s focus is on the U.S. government’s military interventions in
the former French Indochina, a colonial-era polity which already became separated into three (3)
countries: Vietnam, Cambodia, Laos. More precisely for the investigative and argumentative
purposes of this paper: the intervention of the U.S. armed forces in Vietnam and Cambodia
during the 1960s and 1970s. In the U.S., this military involvement in the two (2) aforementioned
countries became known as the Vietnam War, which lasted from the 1950s into the 1970s.
As the U.S. military, between 1955 and 1975, waged counterinsurgency warfare in
Vietnam via conventional military means, it extended its combat efforts into neighboring
Cambodia. The decision to expand the conflict into Vietnam came directly from the U.S
government’s executive branch. From 1969 to 1973, the U.S. federal government extended its
Vietnam War operations into Cambodia, officially known then and now as the Kingdom of
Cambodia, under the presidential administration of Richard Milhous Nixon. During Nixon’s time
as president between 1969 and 1974, Henry Alfred Kissinger, KCMG and Ph.D., served as
National Security Advisor and Secretary of State for the Nixon administration. Indeed, Dr.
Kissinger served until 1977, after Nixon already left office.
The Nixon administration, shortly after entering presidential office, became militarily
involved in Cambodia via massive air force bombardments and land incursions. It did so under
the pretext of pursuing and defeating the armed forces of the Democratic Republic of Vietnam
2
(acronym, DRV; colloquially, North Vietnam) and the National Liberation Front of South
Vietnam (acronyms, NFLSV and NLF; colloquially, Viet Cong and Vietcong). The Nixon
administration, with Kissinger’s input and assistance, alleged that the DRV and the NLF both
maintained a military presence within the Kingdom of Cambodia, despite the then-Cambodian
head of state Prince Norodom Sihanouk’s proclamation of official neutrality. The Nixon
administration thus justified the U.S. military intervention into Cambodia on that basis.
Accordingly, it became responsible for mass civilian death and destruction in that country.
The above recounting of now-historical facts is an attempt at illustrating the practical
consequences of the “Nixon Doctrine.” This doctrine grew out of Nixon’s publicly stated
commitment to resolve the Vietnam War, or at least terminate the U.S. military intervention in
Vietnam, through obtention of “peace with honor.” In practice, this commitment via the Nixon
Doctrine entailed “Vietnamization.” Vietnamization was, essentially, a process aimed at making
the then-existing and already-defunct Republic of Vietnam, also known as South Vietnam, able
to resist the DRV and NLF militarily, politically, and diplomatically on its own terms and with
its own capabilities. The doctrine also entailed the U.S. government under Nixon using any
possible and available means to achieve its military objectives in the former French Indochina.
The euphemism for this unilateral approach was the “madman theory of war”—a “theory” which
came to have devastating consequences for the Kingdom of Cambodia.1
Statement of issues:
The question, then: Did Dr. Kissinger, as National Security Advisor and Secretary of
State involved with the Nixon administration’s military decisions in Cambodia, violate
1
WILLIAM S. TURLEY, THE SECOND INDOCHINA WAR: A CONCISE POLITICAL AND MILITARY HISTORY 162-164
(2009).
MALCOLM CALDWELL AND LEK TAN, CAMBODIA IN THE SOUTHEAST ASIAN WAR 196-197 (1973).
3
Constitutional and international laws? The geopolitical and, at this point, historical context, and
reason, for this overarching issue: The Nixon administration’s decision to invade Cambodia via
ground and aerial military incursions as part of its waging of the Vietnam War. Indeed, the U.S.
military intervention in Cambodia was an extension of the Vietnam War. Dr. Kissinger took on
an instrumental role within the Nixon administration and exercised substantial influence upon its
foreign-policy, diplomatic, and military decisions.
This question, in turn, consists of at least three (3) smaller component issues. They are:
1- Whether the Nixon administration, through its military actions in Cambodia during the
Vietnam War, exceeded the boundaries of the U.S. Constitution;
2- Whether the Nixon administration, by forcibly including Cambodia into its theater of
military operations in Southeast Asia, violated provisions within the Hague Conventions
of 1899 and 1907 which stipulated neutral nation-states’ wartime rights; and
3- Whether Kissinger, as a leading official within the Nixon administration, aided and
abetted in war crimes and crimes against peace as per the Charter of the International
Military Tribunal (1945), also known as the Nuremberg Charter.
To sum up the above sub-issues in one sentence: Whether the Nixon administration, with advice
and other key input from Kissinger, violated the U.S. Constitution and a sovereign nation-state’s
neutrality as it committed war crimes and crimes against peace within that aforementioned
neutral state. The answer, on all counts, in general, is an unreserved yes. Here, a return to the
broader geopolitical, not to mention historical, context should be helpful.
Geopolitical and historical contexts: The Vietnam War
The Vietnam War, which is to say U.S. military involvement in Vietnam, transpired
between 1955 and 1975. The U.S. government, by becoming involved, essentially supplanted the
French and Japanese governments in terms of exercising colonialist and imperialist control.
Previously, the Second French Empire, the French Third Republic, the Empire of Japan, and the
4
French Fourth Republic ruled over Vietnam, Cambodia, and Laos. Indeed, Vietnam, Cambodia,
and Laos were all part of the former French Indochina.
Roughly as the U.S. emerged from the Second World War as a superpower and
consolidated its postwar position as such, sociopolitical movements for national self-
determination, organized on “Marxist-Leninist” ideological foundations, already established
themselves within Vietnam, Cambodia, and Laos. These movements, such as the Communist
Party of Vietnam, the Pathet Lao, and the Communist Party of Kampuchea, turned to methods
such as armed struggle to secure national independence. “Armed struggle” under these
geopolitical conditions included but was not limited to guerrilla warfare. Thus, as the U.S.
government deployed military advisers and then conventional armed forces to Vietnam, it had to
contend with “irregular” military combatants associated with the Vietnamese, Laotian, and
Cambodian independence movements.
Essentially waging a war of counterinsurgency, the U.S. government became concerned
about the DRV’s and NLF’s military presence in neighboring Cambodia. As far as the U.S. was
concerned, the DRV and NLF had supply and travel routes as well as base areas within
Cambodia. Therefore, the Nixon administration concluded that it must expand its military
operations into Cambodia via aerial bombings, the deployment of Special Forces like the Green
Berets, and a conventional ground invasion.
The U.S. military intervention in Cambodia:
The U.S. government, via the Nixon administration, was intent on halting DRV and NLF
military operations within Cambodia. Indeed, it sought to reverse and eliminate the presence of
both the DRV and NLF in that country. As the U.S. military, under orders from Nixon and
Kissinger, extended itself beyond Vietnam and into Cambodia, it committed war crimes in both
of these countries. Simultaneously, the U.S. military also committed crimes against peace within
5
Cambodia. Moreover, the crimes against peace and war crimes of the U.S. government and
military, under Nixon’s and Kissinger’s auspices, were inherent and flagrant violations of
Cambodian neutrality. The violations were perhaps such so as to justify the argument that
Cambodia became part of the Vietnam War, albeit as a “sideshow.” Indeed, that was precisely
the standpoint and argumentation of the journalist William Shawcross. Shawcross, in the aptly
titled book Sideshow: Kissinger, Nixon, and the Destruction of Cambodia, originally published
in 1979 and last reprinted in 2002, exposed the Nixon administration’s role in the U.S. military
assault upon Cambodia as part of its waging of the Vietnam War. Shawcross, not least,
substantively reported on the air force bombings.
The aerial bombardments transpired through a series of code-named military operations.
William S. Turley, a historian of the Vietnam War, writes:
[…] General Creighton Abrams, General Westmoreland’s replacement since mid-1968, sent a cable on
February 9 claiming to have located COSVN headquarters in Base 353, five kilometers inside Cambodia,
and requested authority to attack with B-52s. On the 23rd
, Nixon approved.
Thus began the secret bombing of Cambodia. On March 18, following procedures that had been carefully
contrived to conceal their destination, forty-eight B-52s dropped their long strings of bombs into a patch
of Cambodian territory covering twenty-five square kilometers. The mission, code-named Operation
BREAKFAST, went unnoticed and unprotested. After BREAKFAST came LUNCH, SNACK, and DINNER,
until over a period of fourteen months 3,630 B-52 sorties had dropped bombs on all but two of the
sanctuaries in operations known collectively as MENU.2
Likewise, Shawcross elaborates within Sideshow:
Over the next fourteen months [since February 1969] 3,630 B-52 raids were flown against
suspected Communist bases along different areas of Cambodia’s border. [“Breakfast”] was followed by
“Lunch,” Lunch by “Snack,” Snack by “Dinner,” Dinner by “Dessert,” Dessert by “Supper,” as the
program expanded to cover one “sanctuary” after another. Collectively, the operation was known as
“Menu.”3
2
WILLIAM S. TURLEY, THE SECOND INDOCHINA WAR: A SHORT POLITICAL AND MILITARY HISTORY, 1954-1975 122-
123 (1986).
3
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 28 (2002).
6
For the most part, the Nixon administration intervened through the deployment and usage
of Boeing B-52 Stratofortress bombers to massively bombard Cambodia. In the process, it
committed crimes against peace and war crimes. From 1969 to 1973, the intense aerial
bombardments, or “carpet bombing,” by these B-52s caused massive death and destruction
within the Cambodian countryside, which included peasant villages. They were catastrophic for
the economy and society of Cambodia, which is to say a country with a primarily civilian
farming population.
In terms of setting a timeframe as to the U.S. military assault on Cambodia under orders
of the Nixon administration, Shawcross writes:
Between 1970 and 1975, Cambodian society was destroyed. The war overturned an overwhelmingly
peasant society. Almost half the population fled their fields for the sanctuary of the towns: the population
of Phnom Penh grew from about 600,000 to well over two million.4
Likewise, and to provide an idea as to the resultant casualties, David Bull writes:
Between March 1969 and August 1973, American bombers deposited more than half a million tons of
bombs onto Cambodian territory (almost half of them in the last six months in 1973), a tonnage
equivalent to [seven and a half] times that dropped on Britain throughout World War Two. Hundreds of
thousands of Cambodians were killed.5
Furthermore, Eva Mysliwiec presents the statistics about the destruction in even starker relief:
Kampuchea, with an estimated population of 7.6 million in 1987, is a small, once prosperous country in
Southeast Asia, wedged between Thailand and Vietnam. In recent history, local, regional and global
interests have made Kampuchea a contesting ground for rival powers. It has suffered numerous wars,
coups, invasions, despotic regimes, genocide and devastating famine.
More than a million people and two-thirds of the country's draught animals were killed, wounded or
maimed between 1969 and 1973 when the US dropped an estimated 550,000 tons of bombs on
Kampuchea — a tonnage equivalent to about 120 of the atomic bombs that devastated Hiroshima. Also,
nearly half the population was uprooted and became refugees within their own country.6
4
WILLIAM SHAWCROSS, THE QUALITY OF MERCY: CAMBODIA, HOLOCAUST AND MODERN CONSCIENCE 48-50
(1984).
5
DAVID BULL, THE POVERTY OF DIPLOMACY: KAMPUCHEA AND THE OUTSIDE WORLD 2 (1983).
6
EVA MYSLIWIEC, PUNISHING THE POOR: THE INTERNATIONAL ISOLATION OF KAMPUCHEA 2 (1988).
7
An inquiry commission from Finland also tries to give a broader and more comprehensive
accounting as to the extent of the mass death, damage, and destruction:
The human and material losses in the Vietnam War in Kampuchea were enormous: an estimated 600,000
people—that is, nearly 10% of the population—died as a result of the war. Massive bombing of the rural
areas led to a flood of refugees who crowded into the cities under the control of the Lon Nol government.
By the time the war ended in 1975 an estimated over one third of the rural population—some two million
people—had become refugees, and this meant a near complete breakdown of the traditional social
structure. The population of Phnom Penh alone, within five years rose from some 600,000 to over two
million. The population experienced actual famine because of the disruption of agricultural production
and the break in connections with the countryside.
[….]
Military actions destroyed crops and disrupted transport connections. After the war it was estimated that
75% of all domestic animals had been destroyed. The survival of the urban population depended almost
entirely on deliveries of rice by the Americans. The prices of basic foodstuffs rose dramatically. […]
As a result of the war the country’s small industrial sector also suffered heavy damage. Of the 1,400 rice
mills that had been in operation only 300 were still working in 1974 and only 65 of the previous sawmills
were in use. The country’s only phosphate plant and only paper mill were completely destroyed.
Similarly, cement and textile production facilities suffered serious damage. Of the roads, 40% were
entirely unfit for use and one third of the country’s bridges had been blown up. For the most part this
damage had been caused by US bombing in 1973.7
As to the legal, not to mention moral and ethical, implications of the commission, nature, and
consequences of these bombings, Shawcross speculates:
It could be argued that this use of air power [in Cambodia] constitutes a prima-facie case of breach of
international law. Article 6(b) of the Charter of the International Military Tribunal following World War
II defined “war crimes” as “violations of the laws or customs of war. Such violations shall include, but
not be limited to, murder, ill treatment or deportation to slave labor for any other purpose of civilian
population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages,
or devastation not justified by military necessity.8
Furthermore, on March 18, 1970, the U.S. backed a coup d'état against Prince Norodom
Sihanouk, who insisted upon and maintained the official neutrality of the Kingdom of Cambodia,
and helped pave the road to power for General Lon Nol, who inaugurated the Khmer Republic
7
KAMPUCHEA: DECADE OF THE GENOCIDE (REPORT OF A FINNISH INQUIRY COMMISSION) 5-6 (Kimmo Kiljunen
ed., 1984).
8
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 219 (2002).
8
and became a U.S.-allied and client military dictator. Not long afterward and consequently, on
April 30, 1970, the U.S. military launched a ground invasion of Cambodia. Wilfred Burchett
wrote as to this invasion’s commencement: “[…] Cambodia lived under the shadow of that
which happened on 30 April 1970, when United States tanks rolled across her frontiers and
United States bombers started the systematic process of reducing Cambodian towns and villages
to rubble and ashes.”9
Shawcross writes concretely about the atrocities due to the land assault:
[…] The American troops plowed past its supposed site in the Fish Hook and through the
plantations and villages beyond. Commanders were astonished by the lack of opposition as their tanks
smashed jagged swathes through the trees and as landing zones for helicopters were blasted clear.
Communist troops were hardly to be seen.
The small town of Snuol became the first of scores of Cambodian towns to be destroyed by the
war. Until the second squadron of the 11th
Armored Cavalry Regiment arrived at its outskirts on May 3[,
1970], about two thousand people had lived quietly there, tapping rubber on the trees around. When the
cavalry came under fire, their commander, Lieutenant Colonel Grail Brookshire, ordered his tank crews
to fire their 90-mm. guns straight into the town and called in airstrikes to discourage further resistance.
After twenty-four hours of bombardment, Brookshire judged Snuol safe for his men, and the tanks moved
into the center. Only seven bodies could be seen, four of them Cambodian civilians. A small girl lay near
the ruins of the shops. When Brookshire was asked by reporters why the town had to be destroyed, he
replied “We had no choice. We had to take it. This was a hub of North Vietnamese activity.”
As they drove past shattered shops soldiers leaped off their tanks to kick down doors that still
stood, and they looted the town. Grail Brookshire later recalled the event, laughingly describing himself
as “The Butcher of Snuol.” But he admonished a reporter, “You guys said my men systematically looted
the town. My God, my men couldn’t do anything that was systematic.”
The destruction of Snuol was repeated in Mimot, a much larger plantation town, the village of
Sre Khtum, and dozens of villages and hamlets. The annual monsoon rains turned the red clay to clinging
mud, but American and South Vietnamese troops advanced, firing and burning whatever might be of use
to a returning enemy, capturing caches of rice, ammunition and arms, driving the residents, Vietnamese
and Cambodian, before them. The Americans found it almost impossible to separate friend from foe, and
the South Vietnamese made no effort to do so. They plunged into Cambodia raping, looting, burning in
retaliation for the murder of Vietnamese in Cambodia the month before.10
Seymour Hersh writes of the Nixon administration’s deployment and use of Green Berets:
As in Laos, Green Beret teams led by Americans constantly moved into Cambodia on secret intelligence-
gathering trips. The number of such missions, at one time code named “Salem House,” rose from fewer
than 400 in 1967 and 1968 to more than 1,000 in 1969 and 1970. Some extremely sensitive operations
9
NORODOM SIHANOUK, MY WAR WITH THE CIA: THE MEMOIRS OF PRINCE NORODOM SIHANOUK AS RELATED TO
WILFRED BURCHETT 15 (1973, 1974).
10
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 150-151 (2002).
9
inside Cambodia were conducted with the aid of the Khmer Serei, an anti-Communist Cambodian
movement of mercenaries based in Thailand that was dedicated to the overthrow of the Sihanouk
government.11
Likewise, Shawcross mentions U.S. Special Forces units, operating under the code name “Daniel
Boone,” which were “running special, highly classified missions” in Cambodia and Laos.12
Based on the above background history, one can return to the three (3) aforementioned sub-
issues and address them in depth.
Discussion and evaluation of the issues:
I. Whether the Nixon administration, through its military actions in Cambodia during
the Vietnam War, exceeded the boundaries of the U.S. Constitution.
The legal rule for approaching this question comes directly from the U.S. Constitution.
Strictly speaking, according to Article I, Section 8, of the Constitution, the legislature, which is
to say the Congress of the United States, has the sole authority to declare war. Article I, Section
8, reads partially in verbatim:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the
Debts and provide for the common Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;
[...]
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land
and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than
two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel
Invasions; […]13
11
SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE 177-179 (1983, 1984,
2013).
12
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 24-26 (2002).
13
U.S. CONST. art. I, § 8.
10
As one can tell, this section of the Constitution directly, straightforwardly, indicates that only
Congress can declare war, not to mention maintain the armed forces, of which two of the
constituent branches are an army and a navy.
Furthermore, Louis Henkin confirms the above in his Foreign Affairs and the United
States Constitution by noting that the President may only militarily act, or rather react, without
Congressional approval in event of an outside enemy’s armed assault upon the U.S. In such a
scenario, Congressional approval is assumed to automatically exist—it is given presupposition.
Henkin writes:
In response to an attack upon the United States, the President has constitutional authority to defend the
United States. Without awaiting a Congressional declaration of war, or other authorization from
Congress, the power of the President to use the troops and do anything else necessary to repel invasion is
beyond question. Congressional authorization to respond to an attack upon the United States is assumed.
In such circumstances, the President has power not merely to meet the invasion but to wage in full the
war imposed upon the United States.14
The key phrasing in the above excerpt is: “a Congressional declaration of war, or other
authorization from Congress […]”
Such Congressional authorization is indispensable and mandatory if the President is to
legally go to war. Henkin lays out the policy purpose for such authorization:
The Founders considered the power to declare war too important to entrust to the President, or even to
him and the Senate; they gave it to Congress (or left it there, as under the Articles of Confederation). The
Constitution gave Congress the power to decide the ultimate question, whether the nation shall or shall
not go to war.15
The purpose is clear enough: To ensure checks and balances as well as the separation of powers
by giving Congress the sole authority to declare war. Thus, Henkin can conclude:
The Constitution gives Congress the power to declare war. That, it is accepted, confers on Congress the
power to decide for war or peace, and whether to wage total or limited wars; Congress has the power
also to legislate, tax, spend, and do all that may be necessary to wage war successfully. The war power of
Congress is exclusive. No President has claimed the authority to decide for ‘war’ on his own authority.
Even the accepted exception—that the President has authority to wage war if the U.S. were attacked—can
14
LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 47-48 (1996).
15
LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 75-76 (1996).
11
be seen either as requiring no Presidential decision, since war is forced upon the United States by the
enemy, or as based on implicit authorization from Congress to resist attack and wage war in self
defense.16
As far as “accepted exceptions” are concerned, however, Article II of the Constitution
conceivably, indeed actually, provides some leeway with the phrase: “He shall take Care that the
Laws be faithfully executed.”
Such phrasing from Article II allows for other acceptable exceptions, allowing the
President to deploy military forces to enforce treaty obligations and international conventions
among other functions and purposes. International conventions may include authorizations
and/or recommendations from the United Nations Security Council.17
Additionally, due to
“repeated exercise without successful opposition,” Congressional “silence” may also amount to
implicit authorization of war or, at least, the deployment of the armed forces overseas.18
Therefore, when applying this part of Constitutional law to the situation in Cambodia
from 1969 to 1973, yes, the Nixon administration exceeded the boundaries of the U.S.
Constitution. Since the U.S. Congress did not vote in favor of the U.S. military’s aerial and
ground assaults upon Cambodian soil, the Nixon administration, having acted with Kissinger’s
input, waged a constitutionally illegal war. Indeed, it violated the Constitution due to its lack of
Congressional approval.
Moreover, the fact that the Nixon administration secretly conducted military operations in
Cambodia is telling. Such secrecy went hand in hand with the lack of Congressional approval as
well as the constitutionally illegality of the intervention. William S. Turley writes:
[…] Lacking judicial warrant, [the secret bombing of Cambodia] violated U.S. law—the first such abuse
of power that would lead to Watergate. […]
16
LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 97-98 (1996).
17
LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 50-51 (1996).
18
LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 49 (1996).
12
[…]The ostensible reason for secrecy was, as Kissinger put it, “to avoid forcing the North Vietnamese,
Prince Sihanouk … and the Soviets and Chinese into public reactions they might not be eager to make.”
But the administration also did not seek congressional approval for what was, regardless of the
justification, an act of war that expanded the fighting just as sentiment in Congress was building to end it.
Not until June was a full briefing given to congressional leaders, and the briefing was limited to figures
who could be counted on to support military action. Secrecy helped to avoid a confrontation with
Congress, but it also assured that when the discovery was made, the confrontation would be sharp.19
The administration’s efforts at maintaining secrecy strongly imply, if not expose, its awareness
as to the illegality of the hostilities it initiated in the country. Indeed, the administration even
falsified information about its military incursions into Cambodia. Seymour M. Hersh writes in
The New York Times of August 8, 1973:
A former Air Force captain told the Senate Armed Services Committee today that he had participated in
the widespread, falsification of reports on tactical bombing raids deep inside Cambodia for 11 months
after the United States invasion in May, 1970.
The testimony was the first public indication that the secret bombing of Cambodia, which began with 11‐
52 strikes authorized by President Nixon in March, 1969, did not end with the invasion, as previously
reported.
The former captain, George R. Moses, testified that the daily raids, which involved such fighter‐bombers
as the F‐100 and the P‐4, had often been sent against suspected enemy targets—as identified by the
Cambodian Army—more than 75 miles inside Cambodia.20
Such falsification implies, all the more and very egregiously, the illegality of the bombings as
well as the Nixon administration’s, and Kissinger’s, awareness of such. The concealment and
falsification of information related to the U.S. military assault upon Cambodia occurred in part
via double-entry bookkeeping. Hersh continues in the previously cited New York Times article:
Apparently the same type of double‐entry bookkeeping system was used for the B‐52 raids and the
fighter‐bomber strikes that, according to Mr. Moses, began about two weeks after the invasion and
continued until April, 1971. Under that system, only a few high‐ranking officials with a “need to know”
were given accurate information about the raids.21
19
WILLIAM S. TURLEY, THE SECOND INDOCHINA WAR: A SHORT POLITICAL AND MILITARY HISTORY, 1954-1975
122-123 (1986).
20
Seymour M. Hersh, Senators Are Told U.S. Bombed Cambodia Secretly After Invasion in 1970, N.Y. Times, August
8, 1973, at 6.
21
Seymour M. Hersh, Senators Are Told U.S. Bombed Cambodia Secretly After Invasion in 1970, N.Y. Times, August
8, 1973, at 6.
13
The Nixon administration could not claim to be faithfully executing the laws, either,
under Article II of the Constitution because at no point did the United Nations Security Council
authorize or recommend U.S. military attacks upon Cambodia. If anything, the Nixon
administration went against international law by violating Cambodian neutrality through armed
force. At no point did the military of the Kingdom of Cambodia, under orders from Prince
Sihanouk, attack U.S. military forces and/or diplomatic and other governmental personnel in
Vietnam and/or Laos, so the Nixon administration could not claim self-defense, either.
Likewise, there was no Congressional “silence” to speak of vis-à-vis U.S. war decisions
in Cambodia, given that the Nixon administration was concerned about public outcries of protest
upon finding out about such decisions. Furthermore, the Nixon administration went out of its
way to keep its military operations within Cambodia under wraps, which strongly implies that
the Nixon administration could not count on Congressional “silence” as implicit authorization of
the assault upon Cambodia.
Lastly, out of speculation, the War Powers Resolution, which Congress implemented in
November 1973, was probably, conceivably, a result of, and an official response to, U.S. military
operations in Cambodia. It could have been a Congressional attempt to re-assert authority over
military matters.
II. Whether the Nixon administration violated Cambodian neutrality by extending
Vietnam War-related military efforts into Cambodia.
According to Articles I and II of the Convention (V) respecting the Rights and Duties of
Neutral Powers and Persons in Case of War on Land (The Hague, 18 October 1907; also
known as the Hague Convention of 1907), respectively, “The territory of neutral Powers is
14
inviolable” and “Belligerents are forbidden to move troops or convoys of either munitions of war
or supplies across the territory of a neutral Power.”22
In this case, one can easily argue that the U.S. government egregiously violated
Cambodian neutrality through its 1969-1973 military actions during the Vietnam War.
Prince Sihanouk, as the head of state for the Kingdom of Cambodia, already declared the
officially neutral status of Cambodia vis-à-vis the hostilities in Vietnam. Indeed, during the
1950s and 1960s Sihanouk went out of his way to uphold Cambodian neutrality.23
Nevertheless,
the Nixon administration had the U.S. Air Force bomb Cambodia, deployed U.S. Special Forces
such as the Green Berets to Cambodia, backed a coup d'état against Sihanouk and the Kingdom
of Cambodia in favor of Lon Nol and the Khmer Republic, and ordered a military invasion of
Cambodian soil.24
Robert K. Brigham, a historian of the Vietnam War, describes Kissinger’s and Nixon’s
motivations for ordering a military invasion of Cambodia as well as their decision to do so, thus
violating Cambodian neutrality in the process:
[…] Lyndon Johnson had refused to bomb near Hanoi, and he never launched offensive military
operations against North Vietnamese sanctuaries inside Laos or Cambodia, operations that Kissinger
would soon insist would be essential in the US effort to buy Saigon time to stand on its own feet militarily.
[Kissinger] also thought military operations in Laos and Cambodia against Communist havens would
send the right message to Saigon.
[…]
The decision did not come lightly, but it was fully embraced by Kissinger. Years later, Kissinger claimed
that the decision to attack North Vietnamese sanctuaries along Cambodia’s border with South Vietnam
was in direct response to a Communist military offensive that began on February 22, 1969. He
maintained that Hanoi had violated the 1968 bombing halt understanding by launching new attacks over
the Demilitarized Zone (DMZ). Nixon called the attacks “small-scale but savage” and thought the
22
Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The
Hague, 18 October 1907.
23
MALCOLM CALDWELL AND LEK TAN, CAMBODIA IN THE SOUTHEAST ASIAN WAR 95-145 (1973).
24
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 24-26, 150-151
(2002).
SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE, 177-179 (1983, 1984, 2013).
15
offensive was a “deliberate test, clearly designed to take measure of me and my administration at the
outset.” In typical Nixon fashion, the president said, “My immediate instinct was to retaliate.” Kissinger
agreed: “If we let the Communists manipulate us at this early stage, we might never be able to negotiate
with them from a position of equality, much less one of strength.” But even before the Communist
offensive, Nixon and Kissinger had been studying how to destroy North Vietnamese sanctuaries in
Cambodia. During the 1968 presidential race, both had challenged Johnson’s decision not to strike
Cambodia. In early January 1969, before his inauguration, Nixon asked for reports on North Vietnamese
strength in Cambodia and on what [General Creighton Williams Abrams, Jr.] was doing “to destroy the
build up there.” The president concluded, “I think a very definite change of policy toward Cambodia
probably should be one of the first orders of business when we get in.”25
In brief, before entering the White House, Nixon and Kissinger were already deliberating about
violating Cambodian neutrality. In doing so, they disregarded the fact that the U.S. had already
signed on to the Hague Convention. Now, the question is the extent of Kissinger’s involvement,
which is where the third following issue comes in.
III. Whether Kissinger, as a leading official within the Nixon administration, aided and
abetted in war crimes and crimes against peace as per the Charter of the
International Military Tribunal (1945), also known as the Nuremberg Charter.
In Sideshow, Shawcross alludes to the possibility of charging Kissinger for war crimes
under international law:
It could be argued that this use of air power [in Cambodia] constitutes a prima-facie case of breach of
international law. Article 6(b) of the Charter of the International Military Tribunal following World War
II defined “war crimes” as “violations of the laws or customs of war. Such violations shall include, but
not be limited to, murder, ill treatment or deportation to slave labor for any other purpose of civilian
population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas,
killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages,
or devastation not justified by military necessity.26
In the above excerpt, Shawcross briefly mentions Article 6(b), the legal provision on war crimes,
within Section II, “Jurisdiction and General Principles,” of the Charter of the International
Military Tribunal, more colloquially known as the Nuremberg Charter. He implies that this
25
ROBERT K. BRIGHAM, RECKLESS: HENRY KISSINGER AND THE TRAGEDY OF VIETNAM 33-39 (2018).
SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE 192 (1983, 1984, 2013).
26
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 219 (2002).
16
Nuremberg Charter, a post-Second World War legal instrument, could be applicable to the Nixon
administration’s actions in Cambodia.
In terms of its post-Second World War historical context and legal beginnings, the
Charter of the International Military Tribunal developed out of the Western Allied-Soviet victory
in 1945 over Nazi Germany in the European theater of the Second World War. On August 8,
1945, the charter, also titled as the “Agreement for the prosecution and punishment of the major
war criminals of the European Axis,” became ratified via signature by the governments of the
United Kingdom, the French Fourth Republic, the United States, and the Union of Soviet
Socialist Republics.27
This charter was intended to be a legal framework for the International
Military Tribunal, also known as the Nuremberg Tribunal. This tribunal was meant to prosecute
at least some of the military and political leaders of the just-defeated National Socialist Germany
for war crimes and crimes against humanity. Accordingly, consequently, the Nuremberg Trials
took place through the mid-to-late 1940s.
The formulation of the Nuremberg Charter was due in no small part to the Nazi
Holocaust, also known as the Shoah. This charter laid down the legal rules for crimes against
peace, crimes against humanity, and war crimes. Accordingly, of course, it also laid down the
framework for the prosecution of such crimes. The Nuremberg Trials resulted in multiple
convictions of Nazi war criminals and criminals against humanity. Although a few or some
jurists considered, even denounced, these trials as exemplifying postwar victor’s “justice,” there
was no overturning of the results. Moreover, these results served as a precedent for post-Second
World War international law—especially international law in relation to military and diplomatic
27
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of
the International Military Tribunal, London, art. 6, Aug. 8, 1945.
17
policies, to wrongdoings such as war crimes, crimes against peace, crimes against humanity, etc.
This precedent, furthermore, remains legally effective and valid.28
Regarding crimes against peace, Kissinger, by helping to decide as to how to militarily
invade Cambodia and then covering up such decision-making, was involved in the “planning,
preparation, initiation or wage of a war of aggression” as well as a “war in violation of
international treaties, agreements or assurance.” As discussed earlier, Kissinger and Nixon
knowingly violated the Hague Convention, which is one such international treaty and/or
agreement, by waging a war of aggression in Cambodia. Walter Isaacson, a biographer, describes
how Kissinger helped wage such a war by calling for increased B-52 bombardments:
Throughout the spring of 1973, Kissinger argued that the U.S. should step up its bombing in Cambodia
and make strikes against the Vietnamese infiltration routes as a signal that it meant to enforce the peace.
This reflected his faith in the value of isolated B-52 bombing, a tactic that tends to appeal to civilians in
the Situation Room more than military commanders. The bombing war in Cambodia did little more than
further tarnish the administration’s image at home and abroad. During the six months beginning in
February 1973, 250,000 tons of bombs were dropped on the Khmer Rouge-controlled areas—more than
fell on all of Japan during the entire Second World War. Yet no regions were recaptured by Cambodian
government forces. By that summer, Congress would no longer stand for it: it banned all air strikes
anywhere in Indochina beginning in August 1973.29
Thus, Kissinger as well as the rest of the Nixon administration committed crimes against peace
as defined by the Nuremberg Charter. Kissinger also played a role with the planning of that
invasion--the supporting evidence for such planning substantiates not only his commission of
crimes against peace but also war crimes.
Concerning war crimes as defined under Article 6(b) of the Nuremberg Charter, the
Nixon administration, with Kissinger’s input, by deciding upon the targets for the B-52s and as
well as supporting a coup d'état against Sihanouk and ordering the April 30, 1970 invasion via
28
History.com editors, Nuremberg Trials, HISTORY CHANNEL (Jan. 29, 2010 & June 7, 2019),
https://www.history.com/topics/world-war-ii/nuremberg-trials.
29
WALTER ISAACSON, KISSINGER: A BIOGRAPHY 635-636 (1992, 2005, 2013).
18
ground forces, contributed to the mass murder of a civilian population within occupied territory,
the “plunder of public or private property,” and the “wanton destruction of cities, towns or
villages, or devastation not justified by military necessity.”30
The bombings alone are more than
damning enough for Nixon and Kissinger.
Greg Grandin, a historian, discusses how Nixon, a month after taking presidential office
in 1969, began to plan the bombing of Cambodia as well as the cover-up of such via falsified
information. Nixon did so in concert with Kissinger, the then-Colonel Alexander Haig, and the
then-Colonel Ray Benjamin Sitton. Kissinger had a direct role in determining which targets for
the B-52s to bomb. According to Grandin:
Richard Nixon was inaugurated on January 20, 1969. A month later, on February 24, Henry
Kissinger and his military aide, Colonel Alexander Haig, met with Colonel Ray Sitton, to begin the
planning of Menu, the code name for the B-52 bombing of Cambodia. Extreme secrecy was required.
Nixon, elected promising to end the conflict, feared the public backlash that an escalation of the war into
Cambodia might provoke. And the White House wanted to circumvent Congress, which exercised its
power over the armed services largely through the appropriations of funds needed to conduct specific
missions. Many, including Nixon and Kissinger, felt that Congress wouldn’t have approved the bombing
of Cambodia, since Cambodia was a neutral country that the United States wasn’t at war with. Kissinger,
Haig, and Sitton came up with a simple but comprehensive deception. Sitton, based on recommendations
he received from General Creighton Abrams, the commander of military operations in Vietnam, would
work up a number of targets in Cambodia to be struck. Then he would bring them to Kissinger and Haig
in the White House for approval. Kissinger was very hands-on, revising some of Sitton’s work. “I don’t
know what he was using as his reason for varying them,” Sitton later recalled. “Strike here in this area,”
Kissinger would tell him, “or strike here in that area.” Once Kissinger was satisfied with the proposed
target, Sitton would backchannel the coordinates to Saigon, and from there a courier would pass them on
to the appropriate radar stations, where an officer would make the last minute switch. The B-52 would be
diverted from its “cover” target in South Vietnam into Cambodia, where it would drop its bomb load on
the real target. When the run was complete, the officer in charge of the deception would burn whatever
documents—maps, computer printouts, radar reports, messages, and so on—that might reveal the actual
flight. Then he would write up false “post-strike” paperwork, indicating that the South Vietnam sortie
was flown as planned. This way, Congress and Pentagon administrators would be provided “phony
30
Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of
the International Military Tribunal, London, art. 6, Aug. 8, 1945.
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 24-26, 150-151, 219
(2002).
SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE, 177-179 (1983, 1984, 2013).
19
target coordinates” and other forged data, so as to account for actual expenditures—of fuel, bombs, and
spare parts—without ever having to reveal that Cambodia was being bombed.31
Christopher Hitchens, a journalist, also underscores Kissinger’s role with locating targets for
bombardment as well as the related and resultant falsification. Furthermore, in the following
excerpts, Hitchens exposes Kissinger’s knowledge as to the resultant, potential and/or actual,
civilian deaths from the bombings and supposed wish to avoid such casualties, thus strongly
implying lack of military necessity:
The bombing campaign began as it was to go on—with full knowledge of its effect on civilians, and with
flagrant deceit by Mr. Kissinger in this precise respect. For example, a memorandum prepared by the
Joint Chiefs of Staff and sent to the Defense Department and the White House said plainly that “some
Cambodian casualties would be sustained in the operation” and “the surprise effect of attack could tend
to increase casualties.” The target district for Breakfast (Base Area 35) was inhabited, said the memo, by
about 1,640 Cambodian civilians. Lunch (Base Area 609) was inhabited by 198 of them, Snack (Base
Area 351) by 383, Dinner (Base Area 352) by 770, and Dessert (Base Area 350) by about 120
Cambodian peasants. These oddly exact figures are enough in themselves to demonstrate that Kissinger
was lying when he later told the Senate Foreign Relations Committee that areas of Cambodia selected for
bombing were “unpopulated.” As a result of the expanded and intensified bombing campaigns, it has
been estimated that as many as 350,000 civilians in Laos, and 600,000 in Cambodia, lost their lives.
(These are not the highest estimates.) Figures for refugees are several multiples of that. In addition, the
widespread use of toxic chemical defoliants created a massive health crisis which naturally fell most
heavily on children, nursing mothers, the aged and the already infirm, and which persists to this day.
[...]
Colonel Sitton began to notice that by late 1969 his own office was being regularly overruled in the
matter of selecting targets. “Not only was Henry carefully screening the raids,” said Sitton, “he was
reading the raw intelligence” and fiddling with the mission patterns and bombing runs. […]
It is therefore impossible for him to claim that he was unaware of the consequences of the bombings of
Cambodia and Laos; he knew more about them, and in more intimate detail, than any other individual.
Nor was he imprisoned in a culture of obedience that gave him no alternative, or no rival arguments.
Several senior members of his own staff, most notably Anthony Lake and Roger Morris, resigned over the
invasion of Cambodia, and more than two hundred State Department employees signed a protest
addressed to Secretary of State William Rogers. Indeed, as has been noted, both Rogers and Secretary of
Defense Melvin Laird were opposed to the B-52 bombing policy, as Kissinger himself records with some
disgust in his own memoirs. Congress was also opposed to an extension of the bombing (once it had
agreed to become informed of it) but, even after the Nixon-Kissinger administration had undertaken on
Capitol Hill not to intensify the raids, there was a 21 percent increase of the bombing of Cambodia in the
31
GREG GRANDIN, KISSINGER’S SHADOW: THE LONG REACH OF AMERICA’S MOST CONTROVERSIAL STATESMAN
53-55 (2015).
20
months July–August 1973. The Air Force maps of the targeted areas show them to be, or to have been,
densely populated.
Colonel Sitton does recall, it must be admitted, that Kissinger requested that bombing avoid civilian
casualties. His explicit motive in making this request was to avoid or forestall complaints from the
government of Prince Sihanouk. But this does no more in itself than demonstrate that Kissinger was
aware of the possibility of civilian deaths. If he knew enough to know of their likelihood, and was director
of the policy that inflicted them, and neither enforced any actual precautions nor reprimanded any
violators, then the case against him is legally and morally complete.32
On this point, given Kissinger’s knowledge as to civilian casualties and the considerable
likelihood of such, one can thus conclude that Kissinger was and remains guilty of crimes against
peace and war crimes under Article 6(a) and (b) of the Nuremberg Charter.
Kissinger, by going along with, encouraging, planning, and concealing via falsified
information the Nixon administration’s incessant bombing of Cambodia so as to “extend” the US
war effort beyond Vietnamese borders into Cambodia, became an accomplice and culprit of both
types of crimes. The above-quoted excerpts from the accounts by Isaacson, Grandin, and
Hitchens are more than enough to prove the actus reus and mens rea alike for prosecuting
Kissinger for crimes against peace and war crimes.33
More broadly speaking, as one considers
the culpability of the Nixon administration as a whole, the crimes against peace and war crimes
revolve around actions associated with the illegal and covert attacks upon Cambodia by the U.S.
military and government under the Nixon administration’s orders. The B-52 bombardments are,
of course, the most prominent examples but not the only ones. To wit, those bombings along
with the land invasion of April 30, 1970 and Special Forces missions directly contributed to mass
civilian deaths and widespread destruction in Cambodia. Therefore, these military actions count
32
CHRISTOPHER HITCHENS, THE TRIAL OF HENRY KISSINGER 48-55 (2001, 2002, 2012).
33
Yoram Dinstein, The Distinctions Between War Crimes and Crimes against Peace, in ISRAEL YEARBOOK ON
HUMAN RIGHTS 24 1, 6-7 (Yoram Dinstein and Mala Tabory eds., 1994, 1995).
21
as crimes against peace under Article 6(a) and as war crimes under Article 6(b) of the Charter of
the International Military Tribunal, more colloquially known as the Nuremberg Charter.
General conclusions:
In light of the above analysis, the Nixon administration and Kissinger violated the U.S.
Constitution, the Hague Convention, and the Charter of the International Military Tribunal.
There is more than enough evidence within the documentary record to charge Kissinger for,
alongside other acts of wrongdoing, crimes against peace and war crimes under international
legal codes such as the Nuremberg Charter. Thus, one is more than justified on legal, moral,
ethical, political, and historical grounds to refer to Kissinger as, among other designations, a war
criminal and a flagrant violator of international safeguards for guaranteeing international peace
and the rights of officially neutral nation-states. Since this paper has been focused on the
destruction of Cambodia, one is merely scratching the surface given the extensive list of
comparatively egregious offenses by Kissinger and/or the rest of the Nixon administration in
Chile, Argentina, East Timor, Cyprus, Pakistan, Bangladesh, et cetera.
Admittedly, the practicability of having Kissinger arrested, charged, and arraigned
remains an open question. Due to his advanced age, Kissinger may escape justice. Unfortunately,
he may never have his day before the International Criminal Court. Nevertheless, his record,
along with an attempt at indicting him, can still become a precedent of sorts as advocates of
international law and jurists focused on the connections between the U.S. Constitution and
international relations consider pursuing other public figures for not-dissimilar war crimes and/or
crimes against humanity. Such a list includes but is by no means limited to: Madeleine Albright,
George W. Bush, Jr., Barack H. Obama, Donald J. Trump, etc. At the very least, Kissinger must
22
be mindful as to where he travels due to public calls to have him arrested whenever he travels
abroad.34
Such a demand is not novel, either.
Nevertheless, this paper at least contains a sketch of a possible legal approach for bring
Kissinger to justice. One can neither understate nor dismiss the importance of such an approach,
especially when considering the moral and ethical aspects. In Sideshow, Shawcross writes of the
Nixon administration’s destruction of Cambodia:
In Cambodia, the imperatives of a small and vulnerable people were consciously sacrificed to the
interests of strategic design. For this reason alone the design was flawed—sacrifice the parts and what
becomes of the whole? The country was used to practice ill-conceived theories and to fortify a notion of
American credibility that could in fact only be harmed by such actions. Neither the United States nor its
friends nor those who are caught helplessly in its embrace are well served when its leaders act, as Nixon
and Kissinger acted, without care. Cambodia was not a mistake; it was a crime. The world is diminished
by the experience.35
Given the criminal dimensions of the Nixon Doctrine in practice, one can hardly fault Shawcross
for mentioning the Charter of the International Military Tribunal (1945) in the same volume.36
The Nuremberg Charter, which originated as a legal framework for the prosecution of crimes
committed during the Second World War and became a precedent for international law since
then, surely applies to Nixon’s and Kissinger’s decisions and actions in the former French
Indochina. Especially in this case: Cambodia.
In his following book The Quality of Mercy: Cambodia, Holocaust and Modern
Conscience (1984), which readers may consider as a sequel of sorts or spiritual successor to the
earlier Sideshow, Shawcross poignantly illuminates the importance of Nuremberg’s legacy:
Nuremberg embodied the rhetoric of progress, but it was even at the time tinged at best with irony, at
worst with warning, if only because of the ambiguous record of the prosecuting powers, particularly the
Soviet Union. Nonetheless, it is understandable that the judgment of Nuremberg should have been
34
Leopoldo Salmaso, Norway to Prosecute Henry Kissinger, PRESSENZA (Dec. 10, 2016),
https://www.pressenza.com/2016/12/norway-prosecute-henry-kissinger-2/.
35
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 396 (2002).
36
WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 219 (2002).
23
grasped, again in Rebecca West’s words, as “a sort of legalistic prayer that the Kingdom of Heaven
should be with us.” And perhaps it was equally predictable that that prayer would not be fulfilled.
Nonetheless, even when the prescriptions laid down at Nuremberg are ignored as cruelly as they have
been in Indochina and many other parts of the world in recent years, they cannot be forgotten.37
For several decades now, Kissinger has evaded justice. Nevertheless, the legal means and
channels exist, not least, within Articles 3 and 6 of the Nuremberg Charter. Article 3, for one,
reads:
Each of the Signatories shall take the necessary steps to make available for the investigation of
the charges and trial the major war criminals detained by them who are to be tried by the International
Military Tribunal. The Signatories shall also use their best endeavours to make available for
investigation of the charges against and the trial before the International Military Tribunal such of the
major war criminals as are not in the territories of any of the Signatories.
As for Article 6, it concludes:
Leaders, organisers, instigators and accomplices participating in the formulation of execution of
a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts
performed by any persons in execution of such plan.
Therefore, one can indict not just Kissinger but all those who, while affiliated with the
Nixon administration, were involved with the physical destruction of Cambodia, not to mention
Vietnam and Laos, through force of arms. The U.S. government remains obligated to have
Kissinger as well as other surviving members of the Nixon administration undergo impeachment,
if and hopefully possible, for violating the U.S. Constitution by not having sought Congressional
approval to wage war in Cambodia from 1969 to 1973. Subsequent extradition of these
offenders, especially Kissinger, to an international tribunal for violations of the Hague
Convention and the Nuremberg Charter remains no less apt.
37
WILLIAM SHAWCROSS, THE QUALITY OF MERCY: CAMBODIA, HOLOCAUST AND MODERN CONSCIENCE 430
(1984).
24
Bibliography
Primary legal sources
Agreement for the Prosecution and Punishment of the Major War Criminals of the European
Axis, and Charter of the International Military Tribunal, London, art. 6, Aug. 8, 1945. Available
at: https://www.un.org/en/genocideprevention/documents/atrocity-
crimes/Doc.2_Charter%20of%20IMT%201945.pdf & https://ihl-
databases.icrc.org/ihl/WebART/350-530014?OpenDocument.
U.S. CONST. art. I, § 8. Available at: https://www.archives.gov/founding-docs/constitution-
transcript
Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War
on Land. The Hague, 18 October 1907. Available at: https://ihl-
databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=71929FBD
2655E558C12563CD002D67AE
Secondary legal sources
Dinstein, Yoram in pp. 1-18 of Israel Yearbook on Human Rights, vol. 24 (1994), 1995 edition
(ed. Yoram Dinstein and Mala Tabory), “The Distinctions Between War Crimes and Crimes
against Peace.”
Henkin, Louis. Foreign Affairs and the United States Constitution (second edition). Oxford:
Clarendon Press, 1996.
Secondary factual sources
Brigham, Robert K. Reckless: Henry Kissinger and the Tragedy of Vietnam. New York:
PublicAffairs, 2018.
Bull, David. The Poverty of Diplomacy: Kampuchea and the Outside World. Oxford: Oxfam GB,
1983. Available online: https://policy-practice.oxfam.org/resources/the-poverty-of-diplomacy-
kampuchea-and-the-outside-world-115406/
Caldwell, Malcolm and Lek Tan. Cambodia in the Southeast Asian War. New York and London:
Monthly Review Press, 1973.
Grandin, Greg. Kissinger’s Shadow: The Long Reach of America’s Most Controversial
Statesman. New York: Henry Holt and Company, 2015.
Hersh, Seymour M. “Senators Are Told U.S. Bombed Cambodia Secretly After Invasion in
1970.” The New York Times, August 8, 1973, p. 6. Available online:
https://www.nytimes.com/1973/08/08/archives/senators-are-told-us-bombed-cambodia-secretly-
after-invasion-in.html
Hersh, Seymour M. The Price of Power: Kissinger in the Nixon White House. New York: Simon
and Schuster, 1983, 1984, 2013.
25
History.com editors. Nuremberg Trials. History Channel, originally posted on January 29, 2010
and updated on June 7, 2019. Available online: https://www.history.com/topics/world-war-
ii/nuremberg-trials
Hitchens, Christopher. The Trial of Henry Kissinger. New York and London: Twelve, 2012.
Isaacson, Walter. Kissinger: A Biography. New York: Simon and Schuster, 1992, 2005, 2013.
Kiljunen, Kimmo (editor). Kampuchea: Decade of the Genocide (Report of a Finnish Inquiry
Commission). London: Zed Books, 1984.
Mysliwiec, Eva. Punishing the Poor: The international isolation of Kampuchea. Oxford: Oxfam
GB, 1988. Available online: https://policy-practice.oxfam.org/resources/punishing-the-poor-the-
international-isolation-of-kampuchea-123009/
Salmaso, Leopoldo. “Norway to Prosecute Henry Kissinger.” Pressenza, December 10, 2016.
Available online: www.pressenza.com/2016/12/norway-prosecute-henry-kissinger-2.
Shawcross, William. Sideshow: Kissinger, Nixon, and the Destruction of Cambodia. New York:
Cooper Square Press, 2002.
Shawcross, William. The Quality of Mercy: Cambodia, Holocaust and Modern Conscience. New
York: Simon and Schuster, 1984.
Sihanouk, Norodom with foreword by Wilfred Burchett. My War with the CIA: The Memoirs of
Prince Norodom Sihanouk as related to Wilfred Burchett. Pantheon Books, 1973; Penguin
Books, 1974.
Turley, William S. The Second Indochina War: A Short Political and Military History, 1954-
1975. Boulder, CO: Westview Press, Inc., 1986.
Turley, William S. The Second Indochina War: A Concise Political and Military History (2nd
ed.). Lanham, MD: Rowman & Littlefield Publishers, 2009.

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Henry Kissinger: A War Criminal Still At Large

  • 1. 1 TO: Professor Franklin Siegel (Constitution and Foreign Affairs) FROM: Stephen Cheng DATE: Wednesday, December 8, 2021-Sunday, January 2, 2022 RE: Seminar term research paper HENRY KISSINGER: A WAR CRIMINAL STILL AT LARGE Background: The context for this seminar term paper derives from the diplomatic, political, and military histories of the mid-to-late twentieth century United States of America. To narrow down the extreme broadness, this paper’s focus is on the U.S. government’s military interventions in the former French Indochina, a colonial-era polity which already became separated into three (3) countries: Vietnam, Cambodia, Laos. More precisely for the investigative and argumentative purposes of this paper: the intervention of the U.S. armed forces in Vietnam and Cambodia during the 1960s and 1970s. In the U.S., this military involvement in the two (2) aforementioned countries became known as the Vietnam War, which lasted from the 1950s into the 1970s. As the U.S. military, between 1955 and 1975, waged counterinsurgency warfare in Vietnam via conventional military means, it extended its combat efforts into neighboring Cambodia. The decision to expand the conflict into Vietnam came directly from the U.S government’s executive branch. From 1969 to 1973, the U.S. federal government extended its Vietnam War operations into Cambodia, officially known then and now as the Kingdom of Cambodia, under the presidential administration of Richard Milhous Nixon. During Nixon’s time as president between 1969 and 1974, Henry Alfred Kissinger, KCMG and Ph.D., served as National Security Advisor and Secretary of State for the Nixon administration. Indeed, Dr. Kissinger served until 1977, after Nixon already left office. The Nixon administration, shortly after entering presidential office, became militarily involved in Cambodia via massive air force bombardments and land incursions. It did so under the pretext of pursuing and defeating the armed forces of the Democratic Republic of Vietnam
  • 2. 2 (acronym, DRV; colloquially, North Vietnam) and the National Liberation Front of South Vietnam (acronyms, NFLSV and NLF; colloquially, Viet Cong and Vietcong). The Nixon administration, with Kissinger’s input and assistance, alleged that the DRV and the NLF both maintained a military presence within the Kingdom of Cambodia, despite the then-Cambodian head of state Prince Norodom Sihanouk’s proclamation of official neutrality. The Nixon administration thus justified the U.S. military intervention into Cambodia on that basis. Accordingly, it became responsible for mass civilian death and destruction in that country. The above recounting of now-historical facts is an attempt at illustrating the practical consequences of the “Nixon Doctrine.” This doctrine grew out of Nixon’s publicly stated commitment to resolve the Vietnam War, or at least terminate the U.S. military intervention in Vietnam, through obtention of “peace with honor.” In practice, this commitment via the Nixon Doctrine entailed “Vietnamization.” Vietnamization was, essentially, a process aimed at making the then-existing and already-defunct Republic of Vietnam, also known as South Vietnam, able to resist the DRV and NLF militarily, politically, and diplomatically on its own terms and with its own capabilities. The doctrine also entailed the U.S. government under Nixon using any possible and available means to achieve its military objectives in the former French Indochina. The euphemism for this unilateral approach was the “madman theory of war”—a “theory” which came to have devastating consequences for the Kingdom of Cambodia.1 Statement of issues: The question, then: Did Dr. Kissinger, as National Security Advisor and Secretary of State involved with the Nixon administration’s military decisions in Cambodia, violate 1 WILLIAM S. TURLEY, THE SECOND INDOCHINA WAR: A CONCISE POLITICAL AND MILITARY HISTORY 162-164 (2009). MALCOLM CALDWELL AND LEK TAN, CAMBODIA IN THE SOUTHEAST ASIAN WAR 196-197 (1973).
  • 3. 3 Constitutional and international laws? The geopolitical and, at this point, historical context, and reason, for this overarching issue: The Nixon administration’s decision to invade Cambodia via ground and aerial military incursions as part of its waging of the Vietnam War. Indeed, the U.S. military intervention in Cambodia was an extension of the Vietnam War. Dr. Kissinger took on an instrumental role within the Nixon administration and exercised substantial influence upon its foreign-policy, diplomatic, and military decisions. This question, in turn, consists of at least three (3) smaller component issues. They are: 1- Whether the Nixon administration, through its military actions in Cambodia during the Vietnam War, exceeded the boundaries of the U.S. Constitution; 2- Whether the Nixon administration, by forcibly including Cambodia into its theater of military operations in Southeast Asia, violated provisions within the Hague Conventions of 1899 and 1907 which stipulated neutral nation-states’ wartime rights; and 3- Whether Kissinger, as a leading official within the Nixon administration, aided and abetted in war crimes and crimes against peace as per the Charter of the International Military Tribunal (1945), also known as the Nuremberg Charter. To sum up the above sub-issues in one sentence: Whether the Nixon administration, with advice and other key input from Kissinger, violated the U.S. Constitution and a sovereign nation-state’s neutrality as it committed war crimes and crimes against peace within that aforementioned neutral state. The answer, on all counts, in general, is an unreserved yes. Here, a return to the broader geopolitical, not to mention historical, context should be helpful. Geopolitical and historical contexts: The Vietnam War The Vietnam War, which is to say U.S. military involvement in Vietnam, transpired between 1955 and 1975. The U.S. government, by becoming involved, essentially supplanted the French and Japanese governments in terms of exercising colonialist and imperialist control. Previously, the Second French Empire, the French Third Republic, the Empire of Japan, and the
  • 4. 4 French Fourth Republic ruled over Vietnam, Cambodia, and Laos. Indeed, Vietnam, Cambodia, and Laos were all part of the former French Indochina. Roughly as the U.S. emerged from the Second World War as a superpower and consolidated its postwar position as such, sociopolitical movements for national self- determination, organized on “Marxist-Leninist” ideological foundations, already established themselves within Vietnam, Cambodia, and Laos. These movements, such as the Communist Party of Vietnam, the Pathet Lao, and the Communist Party of Kampuchea, turned to methods such as armed struggle to secure national independence. “Armed struggle” under these geopolitical conditions included but was not limited to guerrilla warfare. Thus, as the U.S. government deployed military advisers and then conventional armed forces to Vietnam, it had to contend with “irregular” military combatants associated with the Vietnamese, Laotian, and Cambodian independence movements. Essentially waging a war of counterinsurgency, the U.S. government became concerned about the DRV’s and NLF’s military presence in neighboring Cambodia. As far as the U.S. was concerned, the DRV and NLF had supply and travel routes as well as base areas within Cambodia. Therefore, the Nixon administration concluded that it must expand its military operations into Cambodia via aerial bombings, the deployment of Special Forces like the Green Berets, and a conventional ground invasion. The U.S. military intervention in Cambodia: The U.S. government, via the Nixon administration, was intent on halting DRV and NLF military operations within Cambodia. Indeed, it sought to reverse and eliminate the presence of both the DRV and NLF in that country. As the U.S. military, under orders from Nixon and Kissinger, extended itself beyond Vietnam and into Cambodia, it committed war crimes in both of these countries. Simultaneously, the U.S. military also committed crimes against peace within
  • 5. 5 Cambodia. Moreover, the crimes against peace and war crimes of the U.S. government and military, under Nixon’s and Kissinger’s auspices, were inherent and flagrant violations of Cambodian neutrality. The violations were perhaps such so as to justify the argument that Cambodia became part of the Vietnam War, albeit as a “sideshow.” Indeed, that was precisely the standpoint and argumentation of the journalist William Shawcross. Shawcross, in the aptly titled book Sideshow: Kissinger, Nixon, and the Destruction of Cambodia, originally published in 1979 and last reprinted in 2002, exposed the Nixon administration’s role in the U.S. military assault upon Cambodia as part of its waging of the Vietnam War. Shawcross, not least, substantively reported on the air force bombings. The aerial bombardments transpired through a series of code-named military operations. William S. Turley, a historian of the Vietnam War, writes: […] General Creighton Abrams, General Westmoreland’s replacement since mid-1968, sent a cable on February 9 claiming to have located COSVN headquarters in Base 353, five kilometers inside Cambodia, and requested authority to attack with B-52s. On the 23rd , Nixon approved. Thus began the secret bombing of Cambodia. On March 18, following procedures that had been carefully contrived to conceal their destination, forty-eight B-52s dropped their long strings of bombs into a patch of Cambodian territory covering twenty-five square kilometers. The mission, code-named Operation BREAKFAST, went unnoticed and unprotested. After BREAKFAST came LUNCH, SNACK, and DINNER, until over a period of fourteen months 3,630 B-52 sorties had dropped bombs on all but two of the sanctuaries in operations known collectively as MENU.2 Likewise, Shawcross elaborates within Sideshow: Over the next fourteen months [since February 1969] 3,630 B-52 raids were flown against suspected Communist bases along different areas of Cambodia’s border. [“Breakfast”] was followed by “Lunch,” Lunch by “Snack,” Snack by “Dinner,” Dinner by “Dessert,” Dessert by “Supper,” as the program expanded to cover one “sanctuary” after another. Collectively, the operation was known as “Menu.”3 2 WILLIAM S. TURLEY, THE SECOND INDOCHINA WAR: A SHORT POLITICAL AND MILITARY HISTORY, 1954-1975 122- 123 (1986). 3 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 28 (2002).
  • 6. 6 For the most part, the Nixon administration intervened through the deployment and usage of Boeing B-52 Stratofortress bombers to massively bombard Cambodia. In the process, it committed crimes against peace and war crimes. From 1969 to 1973, the intense aerial bombardments, or “carpet bombing,” by these B-52s caused massive death and destruction within the Cambodian countryside, which included peasant villages. They were catastrophic for the economy and society of Cambodia, which is to say a country with a primarily civilian farming population. In terms of setting a timeframe as to the U.S. military assault on Cambodia under orders of the Nixon administration, Shawcross writes: Between 1970 and 1975, Cambodian society was destroyed. The war overturned an overwhelmingly peasant society. Almost half the population fled their fields for the sanctuary of the towns: the population of Phnom Penh grew from about 600,000 to well over two million.4 Likewise, and to provide an idea as to the resultant casualties, David Bull writes: Between March 1969 and August 1973, American bombers deposited more than half a million tons of bombs onto Cambodian territory (almost half of them in the last six months in 1973), a tonnage equivalent to [seven and a half] times that dropped on Britain throughout World War Two. Hundreds of thousands of Cambodians were killed.5 Furthermore, Eva Mysliwiec presents the statistics about the destruction in even starker relief: Kampuchea, with an estimated population of 7.6 million in 1987, is a small, once prosperous country in Southeast Asia, wedged between Thailand and Vietnam. In recent history, local, regional and global interests have made Kampuchea a contesting ground for rival powers. It has suffered numerous wars, coups, invasions, despotic regimes, genocide and devastating famine. More than a million people and two-thirds of the country's draught animals were killed, wounded or maimed between 1969 and 1973 when the US dropped an estimated 550,000 tons of bombs on Kampuchea — a tonnage equivalent to about 120 of the atomic bombs that devastated Hiroshima. Also, nearly half the population was uprooted and became refugees within their own country.6 4 WILLIAM SHAWCROSS, THE QUALITY OF MERCY: CAMBODIA, HOLOCAUST AND MODERN CONSCIENCE 48-50 (1984). 5 DAVID BULL, THE POVERTY OF DIPLOMACY: KAMPUCHEA AND THE OUTSIDE WORLD 2 (1983). 6 EVA MYSLIWIEC, PUNISHING THE POOR: THE INTERNATIONAL ISOLATION OF KAMPUCHEA 2 (1988).
  • 7. 7 An inquiry commission from Finland also tries to give a broader and more comprehensive accounting as to the extent of the mass death, damage, and destruction: The human and material losses in the Vietnam War in Kampuchea were enormous: an estimated 600,000 people—that is, nearly 10% of the population—died as a result of the war. Massive bombing of the rural areas led to a flood of refugees who crowded into the cities under the control of the Lon Nol government. By the time the war ended in 1975 an estimated over one third of the rural population—some two million people—had become refugees, and this meant a near complete breakdown of the traditional social structure. The population of Phnom Penh alone, within five years rose from some 600,000 to over two million. The population experienced actual famine because of the disruption of agricultural production and the break in connections with the countryside. [….] Military actions destroyed crops and disrupted transport connections. After the war it was estimated that 75% of all domestic animals had been destroyed. The survival of the urban population depended almost entirely on deliveries of rice by the Americans. The prices of basic foodstuffs rose dramatically. […] As a result of the war the country’s small industrial sector also suffered heavy damage. Of the 1,400 rice mills that had been in operation only 300 were still working in 1974 and only 65 of the previous sawmills were in use. The country’s only phosphate plant and only paper mill were completely destroyed. Similarly, cement and textile production facilities suffered serious damage. Of the roads, 40% were entirely unfit for use and one third of the country’s bridges had been blown up. For the most part this damage had been caused by US bombing in 1973.7 As to the legal, not to mention moral and ethical, implications of the commission, nature, and consequences of these bombings, Shawcross speculates: It could be argued that this use of air power [in Cambodia] constitutes a prima-facie case of breach of international law. Article 6(b) of the Charter of the International Military Tribunal following World War II defined “war crimes” as “violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill treatment or deportation to slave labor for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.8 Furthermore, on March 18, 1970, the U.S. backed a coup d'état against Prince Norodom Sihanouk, who insisted upon and maintained the official neutrality of the Kingdom of Cambodia, and helped pave the road to power for General Lon Nol, who inaugurated the Khmer Republic 7 KAMPUCHEA: DECADE OF THE GENOCIDE (REPORT OF A FINNISH INQUIRY COMMISSION) 5-6 (Kimmo Kiljunen ed., 1984). 8 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 219 (2002).
  • 8. 8 and became a U.S.-allied and client military dictator. Not long afterward and consequently, on April 30, 1970, the U.S. military launched a ground invasion of Cambodia. Wilfred Burchett wrote as to this invasion’s commencement: “[…] Cambodia lived under the shadow of that which happened on 30 April 1970, when United States tanks rolled across her frontiers and United States bombers started the systematic process of reducing Cambodian towns and villages to rubble and ashes.”9 Shawcross writes concretely about the atrocities due to the land assault: […] The American troops plowed past its supposed site in the Fish Hook and through the plantations and villages beyond. Commanders were astonished by the lack of opposition as their tanks smashed jagged swathes through the trees and as landing zones for helicopters were blasted clear. Communist troops were hardly to be seen. The small town of Snuol became the first of scores of Cambodian towns to be destroyed by the war. Until the second squadron of the 11th Armored Cavalry Regiment arrived at its outskirts on May 3[, 1970], about two thousand people had lived quietly there, tapping rubber on the trees around. When the cavalry came under fire, their commander, Lieutenant Colonel Grail Brookshire, ordered his tank crews to fire their 90-mm. guns straight into the town and called in airstrikes to discourage further resistance. After twenty-four hours of bombardment, Brookshire judged Snuol safe for his men, and the tanks moved into the center. Only seven bodies could be seen, four of them Cambodian civilians. A small girl lay near the ruins of the shops. When Brookshire was asked by reporters why the town had to be destroyed, he replied “We had no choice. We had to take it. This was a hub of North Vietnamese activity.” As they drove past shattered shops soldiers leaped off their tanks to kick down doors that still stood, and they looted the town. Grail Brookshire later recalled the event, laughingly describing himself as “The Butcher of Snuol.” But he admonished a reporter, “You guys said my men systematically looted the town. My God, my men couldn’t do anything that was systematic.” The destruction of Snuol was repeated in Mimot, a much larger plantation town, the village of Sre Khtum, and dozens of villages and hamlets. The annual monsoon rains turned the red clay to clinging mud, but American and South Vietnamese troops advanced, firing and burning whatever might be of use to a returning enemy, capturing caches of rice, ammunition and arms, driving the residents, Vietnamese and Cambodian, before them. The Americans found it almost impossible to separate friend from foe, and the South Vietnamese made no effort to do so. They plunged into Cambodia raping, looting, burning in retaliation for the murder of Vietnamese in Cambodia the month before.10 Seymour Hersh writes of the Nixon administration’s deployment and use of Green Berets: As in Laos, Green Beret teams led by Americans constantly moved into Cambodia on secret intelligence- gathering trips. The number of such missions, at one time code named “Salem House,” rose from fewer than 400 in 1967 and 1968 to more than 1,000 in 1969 and 1970. Some extremely sensitive operations 9 NORODOM SIHANOUK, MY WAR WITH THE CIA: THE MEMOIRS OF PRINCE NORODOM SIHANOUK AS RELATED TO WILFRED BURCHETT 15 (1973, 1974). 10 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 150-151 (2002).
  • 9. 9 inside Cambodia were conducted with the aid of the Khmer Serei, an anti-Communist Cambodian movement of mercenaries based in Thailand that was dedicated to the overthrow of the Sihanouk government.11 Likewise, Shawcross mentions U.S. Special Forces units, operating under the code name “Daniel Boone,” which were “running special, highly classified missions” in Cambodia and Laos.12 Based on the above background history, one can return to the three (3) aforementioned sub- issues and address them in depth. Discussion and evaluation of the issues: I. Whether the Nixon administration, through its military actions in Cambodia during the Vietnam War, exceeded the boundaries of the U.S. Constitution. The legal rule for approaching this question comes directly from the U.S. Constitution. Strictly speaking, according to Article I, Section 8, of the Constitution, the legislature, which is to say the Congress of the United States, has the sole authority to declare war. Article I, Section 8, reads partially in verbatim: The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; [...] To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years; To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; […]13 11 SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE 177-179 (1983, 1984, 2013). 12 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 24-26 (2002). 13 U.S. CONST. art. I, § 8.
  • 10. 10 As one can tell, this section of the Constitution directly, straightforwardly, indicates that only Congress can declare war, not to mention maintain the armed forces, of which two of the constituent branches are an army and a navy. Furthermore, Louis Henkin confirms the above in his Foreign Affairs and the United States Constitution by noting that the President may only militarily act, or rather react, without Congressional approval in event of an outside enemy’s armed assault upon the U.S. In such a scenario, Congressional approval is assumed to automatically exist—it is given presupposition. Henkin writes: In response to an attack upon the United States, the President has constitutional authority to defend the United States. Without awaiting a Congressional declaration of war, or other authorization from Congress, the power of the President to use the troops and do anything else necessary to repel invasion is beyond question. Congressional authorization to respond to an attack upon the United States is assumed. In such circumstances, the President has power not merely to meet the invasion but to wage in full the war imposed upon the United States.14 The key phrasing in the above excerpt is: “a Congressional declaration of war, or other authorization from Congress […]” Such Congressional authorization is indispensable and mandatory if the President is to legally go to war. Henkin lays out the policy purpose for such authorization: The Founders considered the power to declare war too important to entrust to the President, or even to him and the Senate; they gave it to Congress (or left it there, as under the Articles of Confederation). The Constitution gave Congress the power to decide the ultimate question, whether the nation shall or shall not go to war.15 The purpose is clear enough: To ensure checks and balances as well as the separation of powers by giving Congress the sole authority to declare war. Thus, Henkin can conclude: The Constitution gives Congress the power to declare war. That, it is accepted, confers on Congress the power to decide for war or peace, and whether to wage total or limited wars; Congress has the power also to legislate, tax, spend, and do all that may be necessary to wage war successfully. The war power of Congress is exclusive. No President has claimed the authority to decide for ‘war’ on his own authority. Even the accepted exception—that the President has authority to wage war if the U.S. were attacked—can 14 LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 47-48 (1996). 15 LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 75-76 (1996).
  • 11. 11 be seen either as requiring no Presidential decision, since war is forced upon the United States by the enemy, or as based on implicit authorization from Congress to resist attack and wage war in self defense.16 As far as “accepted exceptions” are concerned, however, Article II of the Constitution conceivably, indeed actually, provides some leeway with the phrase: “He shall take Care that the Laws be faithfully executed.” Such phrasing from Article II allows for other acceptable exceptions, allowing the President to deploy military forces to enforce treaty obligations and international conventions among other functions and purposes. International conventions may include authorizations and/or recommendations from the United Nations Security Council.17 Additionally, due to “repeated exercise without successful opposition,” Congressional “silence” may also amount to implicit authorization of war or, at least, the deployment of the armed forces overseas.18 Therefore, when applying this part of Constitutional law to the situation in Cambodia from 1969 to 1973, yes, the Nixon administration exceeded the boundaries of the U.S. Constitution. Since the U.S. Congress did not vote in favor of the U.S. military’s aerial and ground assaults upon Cambodian soil, the Nixon administration, having acted with Kissinger’s input, waged a constitutionally illegal war. Indeed, it violated the Constitution due to its lack of Congressional approval. Moreover, the fact that the Nixon administration secretly conducted military operations in Cambodia is telling. Such secrecy went hand in hand with the lack of Congressional approval as well as the constitutionally illegality of the intervention. William S. Turley writes: […] Lacking judicial warrant, [the secret bombing of Cambodia] violated U.S. law—the first such abuse of power that would lead to Watergate. […] 16 LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 97-98 (1996). 17 LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 50-51 (1996). 18 LOUIS HENKIN, FOREIGN AFFAIRS AND THE UNITED STATES CONSTITUTION 49 (1996).
  • 12. 12 […]The ostensible reason for secrecy was, as Kissinger put it, “to avoid forcing the North Vietnamese, Prince Sihanouk … and the Soviets and Chinese into public reactions they might not be eager to make.” But the administration also did not seek congressional approval for what was, regardless of the justification, an act of war that expanded the fighting just as sentiment in Congress was building to end it. Not until June was a full briefing given to congressional leaders, and the briefing was limited to figures who could be counted on to support military action. Secrecy helped to avoid a confrontation with Congress, but it also assured that when the discovery was made, the confrontation would be sharp.19 The administration’s efforts at maintaining secrecy strongly imply, if not expose, its awareness as to the illegality of the hostilities it initiated in the country. Indeed, the administration even falsified information about its military incursions into Cambodia. Seymour M. Hersh writes in The New York Times of August 8, 1973: A former Air Force captain told the Senate Armed Services Committee today that he had participated in the widespread, falsification of reports on tactical bombing raids deep inside Cambodia for 11 months after the United States invasion in May, 1970. The testimony was the first public indication that the secret bombing of Cambodia, which began with 11‐ 52 strikes authorized by President Nixon in March, 1969, did not end with the invasion, as previously reported. The former captain, George R. Moses, testified that the daily raids, which involved such fighter‐bombers as the F‐100 and the P‐4, had often been sent against suspected enemy targets—as identified by the Cambodian Army—more than 75 miles inside Cambodia.20 Such falsification implies, all the more and very egregiously, the illegality of the bombings as well as the Nixon administration’s, and Kissinger’s, awareness of such. The concealment and falsification of information related to the U.S. military assault upon Cambodia occurred in part via double-entry bookkeeping. Hersh continues in the previously cited New York Times article: Apparently the same type of double‐entry bookkeeping system was used for the B‐52 raids and the fighter‐bomber strikes that, according to Mr. Moses, began about two weeks after the invasion and continued until April, 1971. Under that system, only a few high‐ranking officials with a “need to know” were given accurate information about the raids.21 19 WILLIAM S. TURLEY, THE SECOND INDOCHINA WAR: A SHORT POLITICAL AND MILITARY HISTORY, 1954-1975 122-123 (1986). 20 Seymour M. Hersh, Senators Are Told U.S. Bombed Cambodia Secretly After Invasion in 1970, N.Y. Times, August 8, 1973, at 6. 21 Seymour M. Hersh, Senators Are Told U.S. Bombed Cambodia Secretly After Invasion in 1970, N.Y. Times, August 8, 1973, at 6.
  • 13. 13 The Nixon administration could not claim to be faithfully executing the laws, either, under Article II of the Constitution because at no point did the United Nations Security Council authorize or recommend U.S. military attacks upon Cambodia. If anything, the Nixon administration went against international law by violating Cambodian neutrality through armed force. At no point did the military of the Kingdom of Cambodia, under orders from Prince Sihanouk, attack U.S. military forces and/or diplomatic and other governmental personnel in Vietnam and/or Laos, so the Nixon administration could not claim self-defense, either. Likewise, there was no Congressional “silence” to speak of vis-à-vis U.S. war decisions in Cambodia, given that the Nixon administration was concerned about public outcries of protest upon finding out about such decisions. Furthermore, the Nixon administration went out of its way to keep its military operations within Cambodia under wraps, which strongly implies that the Nixon administration could not count on Congressional “silence” as implicit authorization of the assault upon Cambodia. Lastly, out of speculation, the War Powers Resolution, which Congress implemented in November 1973, was probably, conceivably, a result of, and an official response to, U.S. military operations in Cambodia. It could have been a Congressional attempt to re-assert authority over military matters. II. Whether the Nixon administration violated Cambodian neutrality by extending Vietnam War-related military efforts into Cambodia. According to Articles I and II of the Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land (The Hague, 18 October 1907; also known as the Hague Convention of 1907), respectively, “The territory of neutral Powers is
  • 14. 14 inviolable” and “Belligerents are forbidden to move troops or convoys of either munitions of war or supplies across the territory of a neutral Power.”22 In this case, one can easily argue that the U.S. government egregiously violated Cambodian neutrality through its 1969-1973 military actions during the Vietnam War. Prince Sihanouk, as the head of state for the Kingdom of Cambodia, already declared the officially neutral status of Cambodia vis-à-vis the hostilities in Vietnam. Indeed, during the 1950s and 1960s Sihanouk went out of his way to uphold Cambodian neutrality.23 Nevertheless, the Nixon administration had the U.S. Air Force bomb Cambodia, deployed U.S. Special Forces such as the Green Berets to Cambodia, backed a coup d'état against Sihanouk and the Kingdom of Cambodia in favor of Lon Nol and the Khmer Republic, and ordered a military invasion of Cambodian soil.24 Robert K. Brigham, a historian of the Vietnam War, describes Kissinger’s and Nixon’s motivations for ordering a military invasion of Cambodia as well as their decision to do so, thus violating Cambodian neutrality in the process: […] Lyndon Johnson had refused to bomb near Hanoi, and he never launched offensive military operations against North Vietnamese sanctuaries inside Laos or Cambodia, operations that Kissinger would soon insist would be essential in the US effort to buy Saigon time to stand on its own feet militarily. [Kissinger] also thought military operations in Laos and Cambodia against Communist havens would send the right message to Saigon. […] The decision did not come lightly, but it was fully embraced by Kissinger. Years later, Kissinger claimed that the decision to attack North Vietnamese sanctuaries along Cambodia’s border with South Vietnam was in direct response to a Communist military offensive that began on February 22, 1969. He maintained that Hanoi had violated the 1968 bombing halt understanding by launching new attacks over the Demilitarized Zone (DMZ). Nixon called the attacks “small-scale but savage” and thought the 22 Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907. 23 MALCOLM CALDWELL AND LEK TAN, CAMBODIA IN THE SOUTHEAST ASIAN WAR 95-145 (1973). 24 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 24-26, 150-151 (2002). SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE, 177-179 (1983, 1984, 2013).
  • 15. 15 offensive was a “deliberate test, clearly designed to take measure of me and my administration at the outset.” In typical Nixon fashion, the president said, “My immediate instinct was to retaliate.” Kissinger agreed: “If we let the Communists manipulate us at this early stage, we might never be able to negotiate with them from a position of equality, much less one of strength.” But even before the Communist offensive, Nixon and Kissinger had been studying how to destroy North Vietnamese sanctuaries in Cambodia. During the 1968 presidential race, both had challenged Johnson’s decision not to strike Cambodia. In early January 1969, before his inauguration, Nixon asked for reports on North Vietnamese strength in Cambodia and on what [General Creighton Williams Abrams, Jr.] was doing “to destroy the build up there.” The president concluded, “I think a very definite change of policy toward Cambodia probably should be one of the first orders of business when we get in.”25 In brief, before entering the White House, Nixon and Kissinger were already deliberating about violating Cambodian neutrality. In doing so, they disregarded the fact that the U.S. had already signed on to the Hague Convention. Now, the question is the extent of Kissinger’s involvement, which is where the third following issue comes in. III. Whether Kissinger, as a leading official within the Nixon administration, aided and abetted in war crimes and crimes against peace as per the Charter of the International Military Tribunal (1945), also known as the Nuremberg Charter. In Sideshow, Shawcross alludes to the possibility of charging Kissinger for war crimes under international law: It could be argued that this use of air power [in Cambodia] constitutes a prima-facie case of breach of international law. Article 6(b) of the Charter of the International Military Tribunal following World War II defined “war crimes” as “violations of the laws or customs of war. Such violations shall include, but not be limited to, murder, ill treatment or deportation to slave labor for any other purpose of civilian population of or in occupied territory, murder or ill treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity.26 In the above excerpt, Shawcross briefly mentions Article 6(b), the legal provision on war crimes, within Section II, “Jurisdiction and General Principles,” of the Charter of the International Military Tribunal, more colloquially known as the Nuremberg Charter. He implies that this 25 ROBERT K. BRIGHAM, RECKLESS: HENRY KISSINGER AND THE TRAGEDY OF VIETNAM 33-39 (2018). SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE 192 (1983, 1984, 2013). 26 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 219 (2002).
  • 16. 16 Nuremberg Charter, a post-Second World War legal instrument, could be applicable to the Nixon administration’s actions in Cambodia. In terms of its post-Second World War historical context and legal beginnings, the Charter of the International Military Tribunal developed out of the Western Allied-Soviet victory in 1945 over Nazi Germany in the European theater of the Second World War. On August 8, 1945, the charter, also titled as the “Agreement for the prosecution and punishment of the major war criminals of the European Axis,” became ratified via signature by the governments of the United Kingdom, the French Fourth Republic, the United States, and the Union of Soviet Socialist Republics.27 This charter was intended to be a legal framework for the International Military Tribunal, also known as the Nuremberg Tribunal. This tribunal was meant to prosecute at least some of the military and political leaders of the just-defeated National Socialist Germany for war crimes and crimes against humanity. Accordingly, consequently, the Nuremberg Trials took place through the mid-to-late 1940s. The formulation of the Nuremberg Charter was due in no small part to the Nazi Holocaust, also known as the Shoah. This charter laid down the legal rules for crimes against peace, crimes against humanity, and war crimes. Accordingly, of course, it also laid down the framework for the prosecution of such crimes. The Nuremberg Trials resulted in multiple convictions of Nazi war criminals and criminals against humanity. Although a few or some jurists considered, even denounced, these trials as exemplifying postwar victor’s “justice,” there was no overturning of the results. Moreover, these results served as a precedent for post-Second World War international law—especially international law in relation to military and diplomatic 27 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, art. 6, Aug. 8, 1945.
  • 17. 17 policies, to wrongdoings such as war crimes, crimes against peace, crimes against humanity, etc. This precedent, furthermore, remains legally effective and valid.28 Regarding crimes against peace, Kissinger, by helping to decide as to how to militarily invade Cambodia and then covering up such decision-making, was involved in the “planning, preparation, initiation or wage of a war of aggression” as well as a “war in violation of international treaties, agreements or assurance.” As discussed earlier, Kissinger and Nixon knowingly violated the Hague Convention, which is one such international treaty and/or agreement, by waging a war of aggression in Cambodia. Walter Isaacson, a biographer, describes how Kissinger helped wage such a war by calling for increased B-52 bombardments: Throughout the spring of 1973, Kissinger argued that the U.S. should step up its bombing in Cambodia and make strikes against the Vietnamese infiltration routes as a signal that it meant to enforce the peace. This reflected his faith in the value of isolated B-52 bombing, a tactic that tends to appeal to civilians in the Situation Room more than military commanders. The bombing war in Cambodia did little more than further tarnish the administration’s image at home and abroad. During the six months beginning in February 1973, 250,000 tons of bombs were dropped on the Khmer Rouge-controlled areas—more than fell on all of Japan during the entire Second World War. Yet no regions were recaptured by Cambodian government forces. By that summer, Congress would no longer stand for it: it banned all air strikes anywhere in Indochina beginning in August 1973.29 Thus, Kissinger as well as the rest of the Nixon administration committed crimes against peace as defined by the Nuremberg Charter. Kissinger also played a role with the planning of that invasion--the supporting evidence for such planning substantiates not only his commission of crimes against peace but also war crimes. Concerning war crimes as defined under Article 6(b) of the Nuremberg Charter, the Nixon administration, with Kissinger’s input, by deciding upon the targets for the B-52s and as well as supporting a coup d'état against Sihanouk and ordering the April 30, 1970 invasion via 28 History.com editors, Nuremberg Trials, HISTORY CHANNEL (Jan. 29, 2010 & June 7, 2019), https://www.history.com/topics/world-war-ii/nuremberg-trials. 29 WALTER ISAACSON, KISSINGER: A BIOGRAPHY 635-636 (1992, 2005, 2013).
  • 18. 18 ground forces, contributed to the mass murder of a civilian population within occupied territory, the “plunder of public or private property,” and the “wanton destruction of cities, towns or villages, or devastation not justified by military necessity.”30 The bombings alone are more than damning enough for Nixon and Kissinger. Greg Grandin, a historian, discusses how Nixon, a month after taking presidential office in 1969, began to plan the bombing of Cambodia as well as the cover-up of such via falsified information. Nixon did so in concert with Kissinger, the then-Colonel Alexander Haig, and the then-Colonel Ray Benjamin Sitton. Kissinger had a direct role in determining which targets for the B-52s to bomb. According to Grandin: Richard Nixon was inaugurated on January 20, 1969. A month later, on February 24, Henry Kissinger and his military aide, Colonel Alexander Haig, met with Colonel Ray Sitton, to begin the planning of Menu, the code name for the B-52 bombing of Cambodia. Extreme secrecy was required. Nixon, elected promising to end the conflict, feared the public backlash that an escalation of the war into Cambodia might provoke. And the White House wanted to circumvent Congress, which exercised its power over the armed services largely through the appropriations of funds needed to conduct specific missions. Many, including Nixon and Kissinger, felt that Congress wouldn’t have approved the bombing of Cambodia, since Cambodia was a neutral country that the United States wasn’t at war with. Kissinger, Haig, and Sitton came up with a simple but comprehensive deception. Sitton, based on recommendations he received from General Creighton Abrams, the commander of military operations in Vietnam, would work up a number of targets in Cambodia to be struck. Then he would bring them to Kissinger and Haig in the White House for approval. Kissinger was very hands-on, revising some of Sitton’s work. “I don’t know what he was using as his reason for varying them,” Sitton later recalled. “Strike here in this area,” Kissinger would tell him, “or strike here in that area.” Once Kissinger was satisfied with the proposed target, Sitton would backchannel the coordinates to Saigon, and from there a courier would pass them on to the appropriate radar stations, where an officer would make the last minute switch. The B-52 would be diverted from its “cover” target in South Vietnam into Cambodia, where it would drop its bomb load on the real target. When the run was complete, the officer in charge of the deception would burn whatever documents—maps, computer printouts, radar reports, messages, and so on—that might reveal the actual flight. Then he would write up false “post-strike” paperwork, indicating that the South Vietnam sortie was flown as planned. This way, Congress and Pentagon administrators would be provided “phony 30 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, art. 6, Aug. 8, 1945. WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 24-26, 150-151, 219 (2002). SEYMOUR M. HERSH, THE PRICE OF POWER: KISSINGER IN THE NIXON WHITE HOUSE, 177-179 (1983, 1984, 2013).
  • 19. 19 target coordinates” and other forged data, so as to account for actual expenditures—of fuel, bombs, and spare parts—without ever having to reveal that Cambodia was being bombed.31 Christopher Hitchens, a journalist, also underscores Kissinger’s role with locating targets for bombardment as well as the related and resultant falsification. Furthermore, in the following excerpts, Hitchens exposes Kissinger’s knowledge as to the resultant, potential and/or actual, civilian deaths from the bombings and supposed wish to avoid such casualties, thus strongly implying lack of military necessity: The bombing campaign began as it was to go on—with full knowledge of its effect on civilians, and with flagrant deceit by Mr. Kissinger in this precise respect. For example, a memorandum prepared by the Joint Chiefs of Staff and sent to the Defense Department and the White House said plainly that “some Cambodian casualties would be sustained in the operation” and “the surprise effect of attack could tend to increase casualties.” The target district for Breakfast (Base Area 35) was inhabited, said the memo, by about 1,640 Cambodian civilians. Lunch (Base Area 609) was inhabited by 198 of them, Snack (Base Area 351) by 383, Dinner (Base Area 352) by 770, and Dessert (Base Area 350) by about 120 Cambodian peasants. These oddly exact figures are enough in themselves to demonstrate that Kissinger was lying when he later told the Senate Foreign Relations Committee that areas of Cambodia selected for bombing were “unpopulated.” As a result of the expanded and intensified bombing campaigns, it has been estimated that as many as 350,000 civilians in Laos, and 600,000 in Cambodia, lost their lives. (These are not the highest estimates.) Figures for refugees are several multiples of that. In addition, the widespread use of toxic chemical defoliants created a massive health crisis which naturally fell most heavily on children, nursing mothers, the aged and the already infirm, and which persists to this day. [...] Colonel Sitton began to notice that by late 1969 his own office was being regularly overruled in the matter of selecting targets. “Not only was Henry carefully screening the raids,” said Sitton, “he was reading the raw intelligence” and fiddling with the mission patterns and bombing runs. […] It is therefore impossible for him to claim that he was unaware of the consequences of the bombings of Cambodia and Laos; he knew more about them, and in more intimate detail, than any other individual. Nor was he imprisoned in a culture of obedience that gave him no alternative, or no rival arguments. Several senior members of his own staff, most notably Anthony Lake and Roger Morris, resigned over the invasion of Cambodia, and more than two hundred State Department employees signed a protest addressed to Secretary of State William Rogers. Indeed, as has been noted, both Rogers and Secretary of Defense Melvin Laird were opposed to the B-52 bombing policy, as Kissinger himself records with some disgust in his own memoirs. Congress was also opposed to an extension of the bombing (once it had agreed to become informed of it) but, even after the Nixon-Kissinger administration had undertaken on Capitol Hill not to intensify the raids, there was a 21 percent increase of the bombing of Cambodia in the 31 GREG GRANDIN, KISSINGER’S SHADOW: THE LONG REACH OF AMERICA’S MOST CONTROVERSIAL STATESMAN 53-55 (2015).
  • 20. 20 months July–August 1973. The Air Force maps of the targeted areas show them to be, or to have been, densely populated. Colonel Sitton does recall, it must be admitted, that Kissinger requested that bombing avoid civilian casualties. His explicit motive in making this request was to avoid or forestall complaints from the government of Prince Sihanouk. But this does no more in itself than demonstrate that Kissinger was aware of the possibility of civilian deaths. If he knew enough to know of their likelihood, and was director of the policy that inflicted them, and neither enforced any actual precautions nor reprimanded any violators, then the case against him is legally and morally complete.32 On this point, given Kissinger’s knowledge as to civilian casualties and the considerable likelihood of such, one can thus conclude that Kissinger was and remains guilty of crimes against peace and war crimes under Article 6(a) and (b) of the Nuremberg Charter. Kissinger, by going along with, encouraging, planning, and concealing via falsified information the Nixon administration’s incessant bombing of Cambodia so as to “extend” the US war effort beyond Vietnamese borders into Cambodia, became an accomplice and culprit of both types of crimes. The above-quoted excerpts from the accounts by Isaacson, Grandin, and Hitchens are more than enough to prove the actus reus and mens rea alike for prosecuting Kissinger for crimes against peace and war crimes.33 More broadly speaking, as one considers the culpability of the Nixon administration as a whole, the crimes against peace and war crimes revolve around actions associated with the illegal and covert attacks upon Cambodia by the U.S. military and government under the Nixon administration’s orders. The B-52 bombardments are, of course, the most prominent examples but not the only ones. To wit, those bombings along with the land invasion of April 30, 1970 and Special Forces missions directly contributed to mass civilian deaths and widespread destruction in Cambodia. Therefore, these military actions count 32 CHRISTOPHER HITCHENS, THE TRIAL OF HENRY KISSINGER 48-55 (2001, 2002, 2012). 33 Yoram Dinstein, The Distinctions Between War Crimes and Crimes against Peace, in ISRAEL YEARBOOK ON HUMAN RIGHTS 24 1, 6-7 (Yoram Dinstein and Mala Tabory eds., 1994, 1995).
  • 21. 21 as crimes against peace under Article 6(a) and as war crimes under Article 6(b) of the Charter of the International Military Tribunal, more colloquially known as the Nuremberg Charter. General conclusions: In light of the above analysis, the Nixon administration and Kissinger violated the U.S. Constitution, the Hague Convention, and the Charter of the International Military Tribunal. There is more than enough evidence within the documentary record to charge Kissinger for, alongside other acts of wrongdoing, crimes against peace and war crimes under international legal codes such as the Nuremberg Charter. Thus, one is more than justified on legal, moral, ethical, political, and historical grounds to refer to Kissinger as, among other designations, a war criminal and a flagrant violator of international safeguards for guaranteeing international peace and the rights of officially neutral nation-states. Since this paper has been focused on the destruction of Cambodia, one is merely scratching the surface given the extensive list of comparatively egregious offenses by Kissinger and/or the rest of the Nixon administration in Chile, Argentina, East Timor, Cyprus, Pakistan, Bangladesh, et cetera. Admittedly, the practicability of having Kissinger arrested, charged, and arraigned remains an open question. Due to his advanced age, Kissinger may escape justice. Unfortunately, he may never have his day before the International Criminal Court. Nevertheless, his record, along with an attempt at indicting him, can still become a precedent of sorts as advocates of international law and jurists focused on the connections between the U.S. Constitution and international relations consider pursuing other public figures for not-dissimilar war crimes and/or crimes against humanity. Such a list includes but is by no means limited to: Madeleine Albright, George W. Bush, Jr., Barack H. Obama, Donald J. Trump, etc. At the very least, Kissinger must
  • 22. 22 be mindful as to where he travels due to public calls to have him arrested whenever he travels abroad.34 Such a demand is not novel, either. Nevertheless, this paper at least contains a sketch of a possible legal approach for bring Kissinger to justice. One can neither understate nor dismiss the importance of such an approach, especially when considering the moral and ethical aspects. In Sideshow, Shawcross writes of the Nixon administration’s destruction of Cambodia: In Cambodia, the imperatives of a small and vulnerable people were consciously sacrificed to the interests of strategic design. For this reason alone the design was flawed—sacrifice the parts and what becomes of the whole? The country was used to practice ill-conceived theories and to fortify a notion of American credibility that could in fact only be harmed by such actions. Neither the United States nor its friends nor those who are caught helplessly in its embrace are well served when its leaders act, as Nixon and Kissinger acted, without care. Cambodia was not a mistake; it was a crime. The world is diminished by the experience.35 Given the criminal dimensions of the Nixon Doctrine in practice, one can hardly fault Shawcross for mentioning the Charter of the International Military Tribunal (1945) in the same volume.36 The Nuremberg Charter, which originated as a legal framework for the prosecution of crimes committed during the Second World War and became a precedent for international law since then, surely applies to Nixon’s and Kissinger’s decisions and actions in the former French Indochina. Especially in this case: Cambodia. In his following book The Quality of Mercy: Cambodia, Holocaust and Modern Conscience (1984), which readers may consider as a sequel of sorts or spiritual successor to the earlier Sideshow, Shawcross poignantly illuminates the importance of Nuremberg’s legacy: Nuremberg embodied the rhetoric of progress, but it was even at the time tinged at best with irony, at worst with warning, if only because of the ambiguous record of the prosecuting powers, particularly the Soviet Union. Nonetheless, it is understandable that the judgment of Nuremberg should have been 34 Leopoldo Salmaso, Norway to Prosecute Henry Kissinger, PRESSENZA (Dec. 10, 2016), https://www.pressenza.com/2016/12/norway-prosecute-henry-kissinger-2/. 35 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 396 (2002). 36 WILLIAM SHAWCROSS, SIDESHOW: KISSINGER, NIXON, AND THE DESTRUCTION OF CAMBODIA 219 (2002).
  • 23. 23 grasped, again in Rebecca West’s words, as “a sort of legalistic prayer that the Kingdom of Heaven should be with us.” And perhaps it was equally predictable that that prayer would not be fulfilled. Nonetheless, even when the prescriptions laid down at Nuremberg are ignored as cruelly as they have been in Indochina and many other parts of the world in recent years, they cannot be forgotten.37 For several decades now, Kissinger has evaded justice. Nevertheless, the legal means and channels exist, not least, within Articles 3 and 6 of the Nuremberg Charter. Article 3, for one, reads: Each of the Signatories shall take the necessary steps to make available for the investigation of the charges and trial the major war criminals detained by them who are to be tried by the International Military Tribunal. The Signatories shall also use their best endeavours to make available for investigation of the charges against and the trial before the International Military Tribunal such of the major war criminals as are not in the territories of any of the Signatories. As for Article 6, it concludes: Leaders, organisers, instigators and accomplices participating in the formulation of execution of a common plan or conspiracy to commit any of the foregoing crimes are responsible for all acts performed by any persons in execution of such plan. Therefore, one can indict not just Kissinger but all those who, while affiliated with the Nixon administration, were involved with the physical destruction of Cambodia, not to mention Vietnam and Laos, through force of arms. The U.S. government remains obligated to have Kissinger as well as other surviving members of the Nixon administration undergo impeachment, if and hopefully possible, for violating the U.S. Constitution by not having sought Congressional approval to wage war in Cambodia from 1969 to 1973. Subsequent extradition of these offenders, especially Kissinger, to an international tribunal for violations of the Hague Convention and the Nuremberg Charter remains no less apt. 37 WILLIAM SHAWCROSS, THE QUALITY OF MERCY: CAMBODIA, HOLOCAUST AND MODERN CONSCIENCE 430 (1984).
  • 24. 24 Bibliography Primary legal sources Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, and Charter of the International Military Tribunal, London, art. 6, Aug. 8, 1945. Available at: https://www.un.org/en/genocideprevention/documents/atrocity- crimes/Doc.2_Charter%20of%20IMT%201945.pdf & https://ihl- databases.icrc.org/ihl/WebART/350-530014?OpenDocument. U.S. CONST. art. I, § 8. Available at: https://www.archives.gov/founding-docs/constitution- transcript Convention (V) respecting the Rights and Duties of Neutral Powers and Persons in Case of War on Land. The Hague, 18 October 1907. Available at: https://ihl- databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?action=openDocument&documentId=71929FBD 2655E558C12563CD002D67AE Secondary legal sources Dinstein, Yoram in pp. 1-18 of Israel Yearbook on Human Rights, vol. 24 (1994), 1995 edition (ed. Yoram Dinstein and Mala Tabory), “The Distinctions Between War Crimes and Crimes against Peace.” Henkin, Louis. Foreign Affairs and the United States Constitution (second edition). Oxford: Clarendon Press, 1996. Secondary factual sources Brigham, Robert K. Reckless: Henry Kissinger and the Tragedy of Vietnam. New York: PublicAffairs, 2018. Bull, David. The Poverty of Diplomacy: Kampuchea and the Outside World. Oxford: Oxfam GB, 1983. Available online: https://policy-practice.oxfam.org/resources/the-poverty-of-diplomacy- kampuchea-and-the-outside-world-115406/ Caldwell, Malcolm and Lek Tan. Cambodia in the Southeast Asian War. New York and London: Monthly Review Press, 1973. Grandin, Greg. Kissinger’s Shadow: The Long Reach of America’s Most Controversial Statesman. New York: Henry Holt and Company, 2015. Hersh, Seymour M. “Senators Are Told U.S. Bombed Cambodia Secretly After Invasion in 1970.” The New York Times, August 8, 1973, p. 6. Available online: https://www.nytimes.com/1973/08/08/archives/senators-are-told-us-bombed-cambodia-secretly- after-invasion-in.html Hersh, Seymour M. The Price of Power: Kissinger in the Nixon White House. New York: Simon and Schuster, 1983, 1984, 2013.
  • 25. 25 History.com editors. Nuremberg Trials. History Channel, originally posted on January 29, 2010 and updated on June 7, 2019. Available online: https://www.history.com/topics/world-war- ii/nuremberg-trials Hitchens, Christopher. The Trial of Henry Kissinger. New York and London: Twelve, 2012. Isaacson, Walter. Kissinger: A Biography. New York: Simon and Schuster, 1992, 2005, 2013. Kiljunen, Kimmo (editor). Kampuchea: Decade of the Genocide (Report of a Finnish Inquiry Commission). London: Zed Books, 1984. Mysliwiec, Eva. Punishing the Poor: The international isolation of Kampuchea. Oxford: Oxfam GB, 1988. Available online: https://policy-practice.oxfam.org/resources/punishing-the-poor-the- international-isolation-of-kampuchea-123009/ Salmaso, Leopoldo. “Norway to Prosecute Henry Kissinger.” Pressenza, December 10, 2016. Available online: www.pressenza.com/2016/12/norway-prosecute-henry-kissinger-2. Shawcross, William. Sideshow: Kissinger, Nixon, and the Destruction of Cambodia. New York: Cooper Square Press, 2002. Shawcross, William. The Quality of Mercy: Cambodia, Holocaust and Modern Conscience. New York: Simon and Schuster, 1984. Sihanouk, Norodom with foreword by Wilfred Burchett. My War with the CIA: The Memoirs of Prince Norodom Sihanouk as related to Wilfred Burchett. Pantheon Books, 1973; Penguin Books, 1974. Turley, William S. The Second Indochina War: A Short Political and Military History, 1954- 1975. Boulder, CO: Westview Press, Inc., 1986. Turley, William S. The Second Indochina War: A Concise Political and Military History (2nd ed.). Lanham, MD: Rowman & Littlefield Publishers, 2009.