Author’s disclosure: I support Bernie Sanders as the only presidential candidate prepared to forge a new foreign affairs paradigm. I propose that California’s June 7 primary offers voters a chance to cast a vote for peace. Here’s why.
In one of the defining moments in this year’s long contest for the Democratic nomination, Hillary Clinton cited admiration of Henry Kissinger, one of her predecessors as secretary of state, renowned for opening relations with communist China and for his Nobel Peace Prize for negotiating the end of the Vietnam War.
Bernie Sanders seized on the other side of Kissinger’s reputation in his retort. The man Clinton claimed as a mentor and friend, he said, was one of the most destructive secretaries of state in modern history, whose actions in Cambodia created the preconditions for the genocide of 3 million people. Kissinger would be no friend or adviser of his.
The left-leaning press pounced on the story the next day, resurrecting old war crimes charges against President Richard Nixon’s national security adviser and secretary of state, the architect of the invasion and secret bombing of Cambodia and of a coup that toppled the democratically elected president of Chile, and a number of other alleged crimes worldwide. In contrast, The New York Times addressed the debate moment with dueling opinion pieces, implying that the jury is still out on Kissinger.
On May 9, the Obama administration weighed in, granting Kissinger a Distinguished Public Service Award, the highest honor bestowed by the Department of Defense, praising him for his diplomatic accomplishments: détente with the Soviet Union, the opening of relations with China, his continuing advice to secretaries of state (including Clinton and John Kerry), and the 1973 Vietnam Paris Peace Accord.
The lone Nixon-era administrator to emerge unscathed by Watergate has been fully rehabilitated. At 92, Kissinger has continued to be a counsel to presidents, his expertise courted by the political leadership of both parties and the mainstream media. Clinton called him a leader in the struggle for a “liberal international order” in her Washington Post review of his 2014 book, “World Order.” On May 18, he met with presumptive Republican nominee Donald Trump. With all this adulation from the center and the right, critical inquiry on the matter of his war crimes culpability has been relegated to the left-leaning media. Are war crimes charges just the ravings of the radical left?
A little history can provide some perspective on these developments.
Accusations of U.S. war crimes once had a mainstream voice. “Should We have War Crimes Trials?” headlined The New York Times Book Review coverage by Neil Sheehan on March 28, 1971. It was an explosive body of then-current literature charging U.S. complicity in war crimes—25 works in all.
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Sheehan concluded that even if only a fraction of questionable U.S. conduct in Vietnam was considered, and that if the laws of war were applied to that conduct, war crimes charges were merited. His bibliography represented, he said, “the beginnings of what promises to be a long and painful inquest,” an inquest that never occurred.
A focus on just one U.S. military tactic that Sheehan noted illustrates America’s moral and legal quagmire in Vietnam: the unrestricted air and artillery bombardments of peasant hamlets with the strategic aim of emptying the countryside and depriving the guerrillas of their popular base. Other tactics included crop destruction, Zippo raids on villages, and the torture and murder of captive soldiers.
The crucial legal question posed here: Were these wanton disparate acts that our political leadership could not control? Or were they part of a systematic practice “cloaked with official authority” and subject to international law?
The Nuremberg Test
One of the authors on Sheehan’s list who offered a non-radical voice to the chorus calling for inquiry into U.S. war crimes was Telford Taylor. A brigadier general who had served in Army Intelligence during the war, Taylor had been chief counsel at Nuremberg. He also collaborated on writing the Nuremberg trial rules.
In the book “Nuremberg and Vietnam, an American Tragedy,” Taylor questioned whether the sending of hundreds of thousands of troops into South Vietnam, the invasion of Cambodia and the bombing of the north were crimes of aggression, akin to Nazi and Japanese aggression during World War II. And he considered where the ultimate responsibility for the My Lai massacre and similar atrocities rested.
In Taylor’s telling, the modern definition of war crimes bears the stamp of American leadership. Abraham Lincoln was the first world leader to widely disseminate a print version of the centuries-old rules of war. And it was Americans who led the Nuremberg effort with 30 judges, including a Supreme Court justice recruited by President Harry Truman, charged with prosecution of war crimes in a world court. Gen. Douglas MacArthur established the Tokyo trials and chose the presiding judges there. The accused were tried for:
● Aggression. The gravest crime under Nuremberg includes planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties. It was termed a “crime against peace.”
● War crimes. These include murder or ill-treatment of prisoners, killing of hostages, ill treatment of civilians in occupied territories, plunder, wanton destruction of civilian territory or devastation not justified by military necessity.
● Crimes against humanity, which include large and systematic acts of murder, extermination, enslavement, deportation and other inhumane acts committed against civilians. Often cloaked with official authority, these acts place the international community in danger or shock the conscience of humanity. (U.S. Office of the Historian and Ferencz)
At Nuremberg, these crimes were prosecuted under the idea that the substitution of the rule of law for the rule of war would promote world peace. Taylor estimated that 10,000 war crimes trials were held in the five years after World War II, with Nuremberg and Tokyo prosecuting the Axis leadership while other courts tried lower-level defendants. The trials would represent the most articulated expression to date of the rules of war.
But by 1970, Taylor saw the basic principles of Nuremberg challenged by U.S. aggression in Vietnam. “Now the wheel has spun full circle,” he said. “And the fingers of accusation are pointing not at others for whom we have felt scorn and contempt, but at ourselves.” He thought this development threatened our national integrity. To the Nuremberg prosecutor who saw the United States as the world leader in human rights, this was “an American tragedy.”
Taylor set out to provide a legal matrix for the evaluation of war crimes accusations. He cited two cases as the most analogous to Vietnam. Tokyo trial defendants Prime Minister Koki Hirota and Gen. Tomoyuki Yamashita were both found guilty and sentenced to death for failing to stop war crimes that occurred under their watch. Neither had ordered the crimes in question. Hirota was found derelict for failing to effectively halt the Rape of Nanking, a halt he had ordered without effect. Though Yamashita was not accused of any direct knowledge of the atrocities in the Philippines that occurred under his command, he was found guilty and executed for failing to provide effective control of his troops. Nuremberg held that those in authority held ultimate responsibility for the actions of those under them.
Turning to Vietnam, Taylor argued that our world leadership was predicated on a principled stance on war crimes. We couldn’t presume to adjudicate issues of war and peace if we were unwilling to meet the same terms ourselves.
Taylor didn’t pass judgment on any one individual. That belonged to a court of law. Instead, he called for inquiry.
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