[In the following essay, O'Sullivan refutes Hitchens's contention—put forth in a Harper's magazine article—that Henry Kissinger should be indicted as a war criminal.]

Last weekend in New York, it was all but impossible to buy the latest issue of Harper's. The magazine contained the first half of Christopher Hitchens's vast “indictment” of Henry Kissinger as a war criminal, for carrying out a foreign policy of which Hitchens disapproves; and it had sold out in the first 15 or so places I checked. A second installment is forthcoming in the March issue, but having read the first, I predict that the next issue will not sell out. Hitchens writes gracefully, as always, but his organization of the complicated material is rambling, tortuous, and confused.

Not without reason, however—for clarity would be fatal to his argument. Insofar as his thesis can be briefly summed up, it is that Kissinger can and should be prosecuted for carrying out policies that are now recognized under the “Pinochet precedent” as war crimes or crimes against humanity. His indictment has several weaknesses: In some cases, the actions denounced by Hitchens are not war crimes; in others, Kissinger did not commit them; in still others, both.

A wonderful example of this last was pointed out by columnist George Jonas in Canada's National Post. Jonas noted that Hitchens cited Kissinger's mere contemplation of bombing North Vietnamese dikes as evidence of a “regnant mentality” disposed seriously to consider committing war crimes. But destroying dikes to weaken North Vietnam's economy would have been not a war crime, but an attack on a legitimate military target. The British destroyed German dams in World War II, and the NATO bombing of Serbia in the Kosovo war also targeted its economic infrastructure. If Hitchens believes such acts to be war crimes, why is he targeting Kissinger (who, after all, rejected them) rather than Tony Blair and Bill Clinton, who carried them out? The idea is absurd. Hitchens can nonetheless content himself with having invented a new international felony: a “war-thought-crime.”

When it comes to actions that Kissinger actually took—or, more precisely, for which he bore a partial responsibility as a member of the Nixon administration—the indictment becomes nothing more than restaging of leftist anti-Vietnam nostalgia. Kissinger is accused, for instance, of “treating two whole countries—Laos and Cambodia—as if they were disposable hamlets.” This accusation should, instead, be leveled at the North Vietnamese, who took over entire portions of Cambodia and used them as bases to supply their forces and attack U.S. and South Vietnamese troops. Objecting to this intrusion on their neutrality, the Cambodians invited the U.S. to evict the North Vietnamese. What subsequently happened to the Cambodian people was a tragedy—but it was one begun by the North Vietnamese and completed by their sometime allies, the Khmer Rouge, who were in fact guilty of monumental crimes against humanity.

Hitchens sees the entire American prosecution of the Vietnam War after October 1968 as, in itself, a gigantic war crime—and all who died between October 1968 and April 1975 as victims crying out to The Hague for vengeance. Or, as he writes: “Kissinger had to know that every casualty in Indochina after 1968 was avoidable.”

Even if that were so, it would not justify placing on Kissinger the entire blame for decisions taken by a democratically elected government. But it is not so. Hitchens's whole indictment on the Vietnam issue rests on the delusion that the North Vietnamese were willing to reach a genuine compromise at the Paris peace talks in October 1968. Given that assumption, he charges Kissinger with two crimes: being part of a Republican plot to encourage President Thieu of South Vietnam to resist the peace deal so that Nixon would win the 1968 election; and then continuing a needless war for partisan political purposes.

Neither charge survives examination. To begin with, the 1968 “bombing pause” that Hitchens supposes would have brought about peace was itself a partisan decision designed to win the election for Hubert Humphrey—as the memoirs of Anatoly Dobrynin, among other Soviet sources, reveal: “With the presidential election only days away and Humphrey trailing in the public opinion polls largely because of his identification with Johnson's conduct of the war, [Secretary of State Dean] Rusk telephoned on October 31 to inform me that the president would announce the complete cessation of bombing North Vietnam the following day.”

Further, the eventual 1972–3 peace agreement was itself made possible only by U.S. and South Vietnamese military successes. The agreement was a de facto recognition by Hanoi in 1972 that they were not certain to win—a recognition they had been unwilling to make in 1968. Those who died in the intervening years were the victims not of Kissinger, but of North Vietnamese aggression.

Hitchens's indictment, then, is a slow-motion replay of the radical Left's standard grievances of the 1970s. Why, then, does Hitchens deserve the thanks of all sensible people for slogging his way through it?

Hitchens's article appeared in a major magazine. It apparently sold out, at least in Manhattan. And it has been treated respectfully by some mainstream news organizations—notably an approving article in the January 30 Washington Post by Peter Carlson (whose irony, alas, contains more lead than a church roof). Here—placed before a large and influential audience—is proof that the idea of arresting and putting on trial a distinguished former secretary of state is no longer a sort of disgusting joke, but actually thinkable. Indeed, as Jeremy Rabkin, a Cornell specialist in international law, points out, the FBI issued a discreet warning a year ago to former American officials not to visit countries where they might be seized for trial—and there were some West European countries on the list. The proposed International Criminal Court even encourages such trials in its preamble, which states that “it is the duty of every State to exercise its jurisdiction over those responsible for international crimes.” The rules under which former officials might be tried are disturbingly flexible and reliant on shifting definitions of “war crimes” and “crimes against humanity.” Pinochet, for instance, was tried under the U.N. Torture Convention because it provided the British court with the convenient justification of “universal jurisdiction”—even though the charge was based on the beating of a suspect in a Chilean police station, of which incident Pinochet was almost certainly unaware and which occurred when he was on the verge of leaving power and had every incentive not to murder bystanders.

This, in short, is why we must be grateful to Hitchens: He has given us an advance copy of the indictment some future secretary of state might face—a rehash of the indignant platitudes of the journalistic Left, dressed up in legal jargon by lawyers from Amnesty International or Human Rights Watch.

We have been very adequately warned. We owe Hitchens a hearty meal, before our own execution.