I'm going to preface this straight-out by admitting my biases. I have a master's degree in human rights and international politics. I want to be a diplomat. I have written and published research about East Timor and the genocide there in the past. Suffice to say, I do have some personal opinions about Kissinger and his impact on international relations and the current state of international human rights law. I'm going to do my best to stay neutral, but you may see my biases shining through like a flashlight through Swiss cheese. Feel free to call me out on that - as usual, I love arguing. I'm also still not a lawyer.

Let's talk about this post from /r/history discussing Kissinger and his actions as National Security Advisor and Secretary of State under Nixon and Ford. The commenter states that, rather than being thought of as a diplomat, Kissinger ought to be remembered as a war criminal. This isn't an uncommon view; indeed, Christopher Hitchens wrote a large, influential essay and book about it, though he was far from the first to do so. The case is essentially that Kissinger's actions, while working as a top advisor in the US government, broke the law on several occasions, most notably in Cambodia, Timor-Leste, and Chile, and that Kissinger is a war criminal because of this. However, labeling Kissinger as a "war criminal" isn't accurate. The things he did - however much people may disagree with them - were not war crimes.

There are three main instances that people point to when they talk about Kissinger as a war criminal - the Vietnam War (including both the peace process and the decision to bomb Cambodia), the genocide in Timor-Leste, and the coup against Allende in Chile. I personally know the most about Timor-Leste, so that's what I feel most comfortable talking about, but I'm going to go into all three. Before I do that, though, let's review the definition the ICRC uses for war crimes which can be found here. There's a lot there - more than I'm going to list in this post - and a lot of it is based in customary law rather than actual written law, making it extra complicated. However, the ICRC does make a few nice little lists, which include:

• wilful killing; • torture or inhuman treatment, including biological experiments; • wilfully causing great suffering or serious injury to body or health; • extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; • compelling a prisoner of war or other protected person to serve in the forces of a hostile Power; • wilfully depriving a prisoner of war or other protected person of the rights of a fair and regular trial; • unlawful deportation or transfer; • unlawful confinement; • taking of hostages. • committing outrages upon personal dignity, in particular, humiliating or degrading treatment and desecration of the dead; • enforced sterilization; • compelling the nationals of the adverse party to take part in military operations against their own party; • killing or wounding a combatant who has surrendered or is otherwise hors de combat; • declaring that no quarter will be given; • making improper use of distinctive emblems indicating protected status, resulting in death or serious personal injury; • making improper use of the flag, the military insignia or uniform of the enemy resulting in death or serious personal injury; • killing or wounding an adversary by resort to perfidy; • making medical or religious personnel, medical units or medical transports the object of attack; • pillage or other taking of property contrary to international humanitarian law; • destroying property not required by military necessity. • making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack; • launching an attack in the knowledge that such attack will cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct military advantage anticipated; • making non-defended localities and demilitarized zones the object of attack; • subjecting persons who are in the power of an adverse party to physical mutilation or to medical or scientific experiments of any kind which are neither justified by the medical, dental or hospital treatment of the person concerned nor carried out in his or her interest, and which cause death to or seriously endanger the health of such person or persons; • the transfer by the occupying power of parts of its own civilian population into the territory it occupies or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory; • making buildings dedicated to religion, education, art, science or charitable purposes or historic monuments the object of attack, provided they are not military objectives.

There are a couple in particular that I feel are going to be relevant, including:

destroying property not required by military necessity

launching an attack in the knowledge that such attack will cause incidental loss of civilian life, injury to civilians or damage to civilian objects which would be clearly excessive in relation to the concrete and direct military advantage anticipated;

making the civilian population or individual civilians, not taking a direct part in hostilities, the object of attack;

These are the aspects that are most often brought up when looking at Kissinger, and the ones that I feel are the most compelling, so let's keep them in mind as we talk about Kissinger's involvement in the Vietnam War and its eventual expansion into Cambodia.

In 1969, while Nixon was ostensibly scaling down the conflict in Vietnam, the US Air Force began a series of secret bombings in Cambodia. Documentation has shown that this was on the suggestion of Kissinger, who recognised that, while the war in Vietnam was lost, losing the war in Vietnam completely and absolutely meant a blow to American prestige on the world stage. Kissinger - as completely a realist as it's possible to get - equally recognised that to maintain a balance of power on the world stage, the US needed to be seen as dominating its rivals, even in instances where it clearly could not. To that end, there could not simply be peace with North Vietnam - it needed to be peace in a way that allowed the US to maintain its position and maintain its interests in southeast Asia. And so, Cambodia, and an attempt to flush out the North Vietnamese from their Cambodian bases. Indeed, Nixon listed the objectives as threefold - to eliminate the North Vietnamese forces, to show that Nixon was serious about foreign policy, and to demonstrate continued American military might.

Now, once again, while I talk about Nixon's motivations, at this point, Kissinger wielded a great deal of influence over US foreign policy. Nixon did, at times, turn to Kissinger to make things happen, as will be particularly well demonstrated later. How much of the blame can be placed on Kissinger and how much on Nixon for Cambodia, however, is a matter for debate. Let's assume for the sake of argument, though, that Cambodia was entirely Kissinger's idea, and that he was responsible for every aspect of it, from the initial "hey, isn't this a nifty idea" to the "whap pow zocko" as the bombs fell on Cambodia. Could we then say that Kissinger was guilty of war crimes? Well, not quite.

To be very clear, the bombing of Cambodia was illegal, regardless of who or what was bombed there. Cambodia was a sovereign, neutral nation, and while Nixon may have later justified the bombing by saying they sacrificed their neutrality by harbouring North Vietnamese militants, that's simply not how international law works. Cambodia was neutral, and bombing it was illegal. However, the fact that bombing Cambodia was illegal does not make Kissinger a war criminal. Considering Cambodia was a case of interstate violence, the United States as a nation would be held responsible rather than Kissinger in particular.

However, let's set the question of the legality of bombing Cambodia aside. There is the problem with a guerrilla war that the bombing of Cambodia highlights. Guerrilla war, by it's very nature, is imprecise, especially when being waged from the air by Vietnam-era technology. Hell, the problems with guerrilla warfare still haven't been solved in the 21st century. If you'll recall the ICRC's list, the conditions make clear that the death of civilians alone does not constitute a war crime. It may sound callous, but civilian deaths are a natural part of war, and while governments should seek to avoid them, it's pretty much impossible to do so. The simple fact that civilians died isn't enough to say that Kissinger committed war crimes. What we would need instead would be the motivation for the bombings and whether the goals were military ones or instead "let's blow people up for funsies" ones. While I don't have exact quotes, things like Nixon's speech about Cambodia do give a clue. How the Air Force treated these initial secret bombings, too, helps shed light on how Nixon and Kissinger viewed their actions in Cambodia, and whether they were targeting unnecessarily, or with solely military targets in mind. The objective of Operation Menu was a military one - to end the North Vietnamese hold on parts of Cambodia, and to eliminate North Vietnamese bases. The problem is that these bases didn't generally hold up giant flashy signs saying "bomb me, please!" In reality, bombing the strongholds and staging grounds necessitated hitting civilians as well. International customary law makes it clear that for an attack to be a war crime, civilians must be the target. As a policy, civilians were not the target. Does that mean civilians didn't die? Of course not. Does that mean there weren't horrendous consequences for US action in Cambodia? Once again, of course not. What happened in Cambodia was an abomination, and it was highly illegal, but it was not a war crime.

Cambodia, however, is not the only instance of Kissinger behaving questionably. If we skip ahead a bit to his tenure as Secretary of State under Ford, we run into the interesting problem of the genocide in Timor-Leste and the US relationship with Suharto. It's in this case that we see what Kissinger's realist worldview actually entailed. Timor-Leste was a tiny country on half of one of Indonesia's islands which had been ruled by Portugal, but in 1975 was trying to gain its independence. Suharto, the pro-American leader of Indonesia, disagreed with this, and forcibly put down the independence movement, killing nearly 200 000 people of Timor-Leste's population over the next two decades.

On the eve of Indonesia's invasion of Timor-Leste, Suharto met with Ford and Kissinger, asking them if they objected if he invaded Timor-Leste, citing his concerns about communist influences in the country. Kissinger, recognising the difficulty that would arise for American shipping lanes if there was a communist country there, said the US would not interfere, but that would Indonesia please do its best to keep its use of American weapons on the down-low? Suharto agreed, and Indonesia invaded the next day.

The report of the Timor-Leste truth commission makes it abundantly clear that they feel the complicity of the US in not only allowing the Indonesian government to invade Timor-Leste, but also continue to provide arms to the Indonesian military had a dramatic and damaging impact on the genocide. The US could have intervened, but didn't, and could have stopped selling arms to Indonesia, but didn't, instead choosing to maintain its relationship with a pro-American leader.

That the US shares some blame for the genocide in Timor-Leste is undeniable, and that Kissinger's realist worldview and politics that he saw as having no place for human rights resulted in the deaths of tens of thousands of people is also clear. Had Suharto not gotten the permission of the US government, it's possible he still would have invaded, but perhaps not as brutally or as blatantly, and perhaps there might have been more of a reaction from the world at large. Hypotheticals, though, are not my business. Heinous though the genocide in Timor-Leste was, it still doesn't constitute a war crime on Kissinger's part. Suharto, absolutely, but Kissinger, if nothing else, wasn't involved in a war with Timor-Leste. His policies helped fuel it, but that's a far cry from actually ordering civilians massacred.

Which brings me to Chile, the last example people cite when talking about Kissinger as a war criminal. Once again, Chile can't be an example of Kissinger being a war criminal specifically because there wasn't a war, but I'll review the charges against him anyway. In 1970, Chileans were dreadfully excited about a fellow named Salvador Allende, a pro-Cuban, pro-socialist fellow who essentially embodied everything Kissinger and Nixon really, really did not want in South American. American businesses, too, were concerned about Allende and nationalisation of the copper industry, fearing that this would hurt their profits. Nixon and Kissinger planned a coup attempt to be enacted prior to Allende taking office, but it ultimately failed. Despite sanctions, Allende continued his dastardly socialist ways, and more drastic measures were planned. Throughout 1972 and 1973, the CIA fueled labour strikes and fomented rebellion in the military. However, it wasn't until 11 September, 1973 that the military - led by a fellow named Augusto Pinochet - successfully overthrew Allende in a coup, killing him and installing a military junta. That the US was involved in supporting Pinochet before and after the coup is, once again, undeniable. The US action violated Chilean national sovereignty is also undeniable. However, the simple fact that an action is distasteful and criminal does not automatically make it a war crime. While Kissinger played a key role in the planning and implementation of Allende's overthrow, that is not in and of itself a war crime. It's a crime, yes, but not a war crime.

Ultimately, it seems Kissinger is not a war criminal, nor did he commit war crimes. He committed distasteful and illegal actions, actions that violated national sovereignty and violated international law, but which were not in and of themselves war crimes. It's not inaccurate to blame genocides on Kissinger - certainly both the genocides in Cambodia and Timor-Leste would not have happened if there had been a more human rights-friendly Secretary of State in office - but that doesn't inherently make him guilty. What it means is that we can make examinations of what he did and his legacy, but throwing accusations of war crimes at him misunderstands both war crimes and what he actually did.

Sources!

I did some digging to find a more thorough view of the case against Kissinger, which involved watching the documentary based on Hitchens' book (I didn't have time to read the book). I recommend it if you're interested in the case, even though as I think I've made clear, there are some gaps in it.

Related, this is a good editorial that details the arguments people make against Kissinger and Nixon and their foreign policy decisions.

We have the ICRC guide to how not to be a war criminal.

"Congress, Kissinger, and the Origins of Human Rights Diplomacy" by Barbara Keys published in Diplomatic History gives a good insight into human rights during Kissinger's tenure

"Acknowledging our international criminals: Henry Kissinger and East Timor" by Brandon Mark published in the Denver Journal of International Law and Policy is highly recommended if you're interested in the role the Ford administration played in the Timor-Leste genocide.

"Our Own Private Pinochet: Prosecuting Henry Kissinger" by John Paul Ferguson in the SAIS Review also looks at this claim of Kissinger as a war criminal, though it takes a different route. I recommend it as well.

This list isn't complete without two AskHistorians references, of which the first is much better, and also gives a much better idea of what happened in Chile.

Here's a basic source on the Paris Peace Talks.

And another on how Nixon...meddled in said peace talks.

The Timor-Leste truth commission report, of course.

And CIA documents about Chile