In fact, a different strategy might have extricated the United States from the fighting in Vietnam with fewer casualties and in a more honorable manner than the Nixon-Kissinger approach produced. Instead of promising President Thieu unfailing support, Nixon could have given him a timetable for American withdrawal and a progressive transfer of defense responsibility to the South Vietnamese. If done promptly, this might have spurred the South Vietnamese to greater efforts to protect themselves. It might also have preserved for the American government some capacity to continue material support to South Vietnam and to retaliate against the North for egregious violations of the 1954 demarcation agreement.

    Unless and until the North Vietnamese admitted that they had troops in the South and were willing to discuss conditions for their withdrawal, the United States could have refused any negotiation with them. Certainly the United States never should have dealt with the North about the internal politics of South Vietnam.

    There is no guarantee that a more open approach could have brought peace to South Vietnam or preserved indefinitely its viability as a state, but the outcome could have been no worse than what actually happened. Unlike the policy that pretended that capitulation brought peace with honor, it would have been both honest and honorable.

    In contrast to Berman's carefully researched analysis and measured, though damning, conclusions, ''The Trial of Henry Kissinger,'' by Christopher Hitchens, is a philippic pure and simple, a propaganda screed devoid not only of balance but also of proper recognition of the distinction between domestic criminal law and international law.

    Hitchens says Kissinger committed ''identifiable crimes'' that ''might or should form the basis of a legal prosecution.'' But it should be noted that Kissinger was not the ultimate authority for any of the acts cited here; he was acting in accord with policies approved by, and sometimes initiated by, Presidents Nixon and Ford. Indeed, to the degree that American armed forces or clandestine operatives were involved in these ''crimes,'' it was under the authority of the president, not that of his assistant for national security or secretary of state.

    Hitchens makes six accusations against Kissinger, five of which ignore or distort the context in which United States policy was formed and reek of double standards. Thus, pace Hitchens, orders were not given by Kissinger to kill civilians deliberately in Vietnam. The North Vietnamese not only encouraged the Vietcong to terrorize civilians, but invaded South Vietnam with their regular forces. Normally, those who start a war are held responsible for the violence, not those who resist the invaders and terrorists. Whatever criticism may be properly directed at the way the United States fought the war in Vietnam, it is a travesty to characterize the attempts to resist Communist aggression as criminal acts.

    Similarly, the evidence Hitchens cites for ''collusion in mass murder'' in Bangladesh, ''personal suborning and planning of murder'' in Chile, ''personal involvement in a plan to murder'' the president of Cyprus and ''incitement'' to ''genocide'' in East Timor would be inadequate to persuade a dispassionate grand jury to approve an indictment, even without the countervailing evidence a defense attorney would present.

    The sixth accusation, of Kissinger's ''personal involvement in a plan to kidnap and murder a journalist living in Washington, D.C.'' (Elias Demetracopoulos), is that of a crime punishable under American law. If the accusation has substance, there is no need to resort to an international tribunal. In fact, Hitchens's evidence, which he admits is incomplete, is exceedingly flimsy. Even if we accept it at face value, the most it would justify is further investigation by the Department of Justice to determine whether there is credible evidence of criminal wrongdoing. In the meantime, a presumption of innocence, to which even people Hitchens dislikes are entitled, would seem to apply.

    Hitchens sees his accusations as a blow to the ''sovereign immunity'' principle traditionally protecting senior government officials from tribunals outside their own countries. His intemperate diatribe may, however, have the opposite effect. Many will reason that if this is the sort of thing that could be brought before an international criminal court, the world will be better off without one.

    Jack F. Matlock Jr., the author of ''Autopsy on an Empire,'' is a former United States ambassador to the Soviet Union and Czechoslovakia.