Critically discuss and evaluate if the United States should be prosecuted for War Crimes
“There are two ways of fighting: either with laws or with force…but because the first way often does not suffice, one has to resort to the second.”
Niccolò Machiavelli (Machiavelli, 2009: p. 64)
The history of the term ‘War Crime’ is long and complex, however many current definitions and applications can be traced to the Nuremberg trials after the Second World War especially the Rome Statutes of the ICC (International Criminal Court) that became active in 2002 (Tomuschat, 2006 & Kirsch, 2005).[1]
This essay will critically argue that the United States should not be prosecuted for war crimes under the Rome Statute (2002), however suggests that Henry Kissinger should be formally investigated for his specific involvement in Operation Menu (1969 – 1970).
In the space of just two years (1969 – 70) the United States Air force, under careful management from national security advisor Henry Kissinger, dropped the equivalent of all Allied bombs during World War II Pacific operations on parts of rural Cambodia killing approximately 100,000 civilians (Chomsky & Vltchek, 2013, p. 8; Owen & Kiernan, 2006: p. 66). This became known as Operation Menu and is one example of many illegal acts committed by Henry Kissinger according to Christopher Hitchens work The Trial of Henry Kissinger (2001) and Steven Feldstein (2004: p. 1703 - 1704).
Operation Menu was illegal for many reasons including the breach of the US constitution, whereby an attack must be declared and approved by congress as stated in Article 1(8) of the constitution (GPO, 2015), but perhaps the most obvious were multiple violations of International Humanitarian Law including Rule 1, 11, 13 and 14 as provided by the International Committee of the Red Cross and Peace Operations Training Institute (ICRC, 2015 & POTI, 2012).[2]
Under the Rome Statute Article 25(3b), an individual can be held criminally responsible if they order, induce or solicit a breach of international law (ICC, 2015: p. 18). There is considerable evidence to indicate that Kissinger had a direct role in the decision making process of Operation Menu (Feldstein, 2004: p. 1704 – 1708; Drivas, 2011: p. 136, 139). Therefore from this there should at least be further investigation.
However, was Operation Menu justified? President Nixon and Kissinger utilised the might of the American military to demonstrate what Nixon called “Madman Theory”, essentially showing that the US had tremendous strength and influence (Billington, 1999: p. 52). Indeed the entire reason of the operation was to bomb the Vietcong and PAVN (People’s army of Vietnam) who were based there, not deliberately target Cambodian civilians (Creech, 2013: p. 192 – 194). However, even though there was not a deliberate targeting of civilians this paper suggests that this demonstrated a clear case of indiscriminate bombing which is clearly illegal under international law.
This essay has briefly outlined the case for prosecution of Henry Kissinger and his role with Operation Menu. Via the obvious breaches of international law, specifically the indiscriminate killing of civilians and others, Henry Kissinger showed at least gross ignorance or worse a Machiavellian mindset. It is disconcerting therefore that in 1973 he said the following “We are seeking a stable world, not as an end in itself but as a bridge to the realisation of man’s noble aspirations of tranquillity and community” (Kissinger, 1973), whilst accepting his Nobel Peace Prize.
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References
Billington, M (1999) ‘Cambodia genocide: Kissinger and Brzezinski in the dock’, EIR Strategic Studies 26(52). Pp. 50 – 57.
Chomsky, N & Vltchek, A (2013) On Western Terrorism: From Hiroshima to Drone Warfare. London: Pluto Press
Creech, B (2013) ‘ “The Rising Tide of War”: Cambodian Bombings and the Discourses of American Military Power in Time’, The Communication Review 16(4). Pp. 189 – 210.
Drivas, G. P (2011) ‘The Cambodian Incursion Revisited’, International Social Science Review 86(3 & 4). Pp. 134 – 159.
Feldstein, S (2004) ‘Applying the Rome Statute of the International Criminal Court: A Case Study of Henry Kissinger’, California Law Review 92(6). Pp. 1662 - 1728
Gaeta, P (1999) ‘The Defence of Superior Orders: The Statute of the International Criminal Court versus Customary International Law’, European Journal of International Law 10(1). Pp. 172 - 191
GPO (2015) The Constitution of the United States of America. United States Government Printing Office: Available at: http://www.gpo.gov/fdsys/pkg/GPO-CONAN-1992/pdf/GPO-CONAN-1992-6.pdf (Accessed: 09/07/2015).
Hitchens, C (2001) The Trial of Henry Kissinger. London: Verso Books
ICC (2015) Rome Statute of the International Criminal Court. International Criminal Court: Available at: http://www.icc-cpi.int/iccdocs/PIDS/publications/RomeStatutEng.pdf (Accessed: 09/07/2015).
ICRC (2015) International Committee of the Red Cross. Available at: https://www.icrc.org/customary-ihl/eng/docs/v1_rul (Accessed: 09/07/2015).
Kirsch, P (2005) From Nuremberg to The Hague: The Nuremberg Heritage: A Series of Events Commemorating the Beginning of the Nuremberg Trials. Court Room 600 – Palace of Justice – Nuremberg, 19th November 2005. International Criminal Court.
Kissinger, H (1973) Acceptance Speech. Available at: http://www.nobelprize.org/nobel_prizes/peace/laureates/1973/kissinger-acceptance.html (Accessed: 09/07/2015).
Machiavelli, N (2009) The Prince. London: Vintage Books
Owen, T & Kiernan, B (2006) ‘Bombs Over Cambodia’, The Walrus, October 2006, pp. 62 – 69.
POTI (2015) International Humanitarian Law and the Law of Armed Conflict. Available at: http://cdn.peaceopstraining.org/course_promos/international_humanitarian_law/international_humanitarian_law_english.pdf (Accessed: 09/07/2015).
Tomuschat, C (2006) ‘The Legacy of Nuremberg’, Journal of International Criminal Justice’ 4. Pp. 830 – 844
[1] The reader is reminded that there are discrepancies between the Nuremberg legislation and the Rome Statutes such that the former refused appeals on the grounds of simply ‘obeying orders’ as a means of excuse (Gaeta, 1999: p. 172, 174).
[2] The Rules are as follows: Distinction between Civilian and Combatants (1), Indiscriminate Attacks (11), Area Bombardment (13) and Proportionality in Attack (14)