Commentary Magazine


The Question of War Crimes

In the last few years the American public has been buried by a Vesuvian eruption of intellectual sludge on the subject of war crimes. Much of it has been produced by the likes of Jane Fonda and the Brothers Berrigan, but some of it comes from people whose legal credentials are fairly imposing. According to Professor Richard A. Falk of Princeton, “the United States Government is waging an illegal war of aggression by criminal means in Vietnam.” Ramsey Clark, operating under the auspices of an organization whose point of view and purpose are sufficiently described by its name, the “International Commission of Inquiry into United States War Crimes,” strongly implies, first, that the United States engaged in a deliberate effort to destroy the system of dikes in North Vietnam and, second, that all persons responsible for such bombing are war criminals. Mr. Clark, who is said by many people to be a better lawyer than Miss Fonda, did not, so far as I know, use the words “war crime.” But he accused the United States of “inhuman behavior” in Vietnam and said that the bombing was “without justification.” Bombing without military justification is in my opinion, and presumably in Mr. Clark’s, a violation of the law of war—i.e., a war crime. When such language and opinions are put forth by the Milbank Professor of International Law at Princeton and a former Attorney General of the United States, I think that it is in order to examine the law of war and to explain what a war crime is, and also what it is not.

The subject is complex and sometimes obscure, but I think its essentials can be expounded with tolerable clarity and brevity. In trying to do so, I shall make no attempt to say what is immoral—not because I believe morality unimportant, but because my views on it are entitled to no more weight than Jane Fonda’s, or Richard M. Nixon’s, or yours. Professor Falk and others of his school frequently seem to use “illegal” and “immoral” interchangeably. A casebook specimen of this sort of reasoning is contained in a review of Telford Taylor’s Nuremberg and Vietnam. The writer, starting with a declaration that the war in Vietnam “is a horrendous moral evil, a criminal undertaking of the most serious sort,” proceeds to denounce Professor Taylor because “like almost all lawyers, he is most at ease when reasonably precise, reasonably well-established rules and conventions happen to be available. . . . Taylor embraces a very limited and morally unattractive notion of what constitutes a war crime.”

While I do not agree with all of Professor Taylor’s conclusions, I plead guilty to sharing his point of view. Law and morality are not and, in the present imperfect state of man, cannot be coextensive. Law means, or should mean, a standard on which there is general (although rarely, if ever, universal) agreement and, more than that, a standard whose violation may subject the violator to known or knowable sanctions. I emphasize again that what I propose to do in this piece is not to make moral judgments but to describe international law—the rules which most nations have agreed, whether by treaty or as a matter of custom, to obey and enforce.

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The idea that some methods of war-fare are illegal is comparatively modern. As any reader of the Old Testament, Thucydides, Caesar, or Livy knows, ancient history is full of appalling chronicles of rapine, pillage, and massacre—some of it not merely permitted but practically mandatory under contemporary notions of morality. There was, of course, much philosophical discussion of “natural law” and condemnation of unnecessary barbarity, but, the actual, effective law on the subject was tersely summed up by that eminent jurist, Marcus Tullius Cicero: Silent leges inter arma (“Laws are silent amid arms”). When Marcus Crassus put a definitive end to Spartacus’s revolt by crucifying 6,000 captive slaves along the road from Capua to Rome, it would not have occurred to Cicero or anyone else to call him a criminal; the Senate decreed him a triumph. The Romans were probably the crudest of ancient peoples, but even the Athenians and Spartans saw nothing immoral, much less illegal, in killing or enslaving the population of a conquered city.

The savagery of medieval warfare was not restrained by anything properly describable as law, although there was a certain deference to ideas of chivalry and Christian duty. But chivalry operated principally for the benefit of the well-born and rich; nobles and knights could be held for ransom and thus were far more valuable alive than dead. Two passages in the Chronicles of Jean Froissart illustrate the point that the mercy of the Middle Ages was based more on prudential than humanitarian considerations. After that terrible new weapon, the longbow, had destroyed the French army at Crécy,

among the English pillagers and irregulars, Welsh and Cornishmen armed with long knives . . . went out after the French . . . and, when they found any in difficulty, whether they were counts, barons, knights or squires, they killed them without mercy. Because of this, many were slaughtered that evening regardless of their rank. It was a great misfortune and the King of England was afterward very angry that none had been taken for ransom, for the number of dead lords was very great.

In other words, the royal outrage was largely economic. Other considerations were also at work. When Calais, after a long and stubborn siege, surrendered, the same king, Edward III, was so enraged against the citizens that he proposed to give them no quarter. Sir Walter Manny (who seems really to have been a very gentle, as well as a very gallant, knight) talked him out of it with an argument which to this day underlies much of the international law of war:

“My lord, you may well be mistaken, and you are setting a bad example for us. Suppose one day you want us to defend one of your fortresses, we should go less cheerfully if you have these people put to death, for then they would do the same to us if they had the chance.” This argument did much to soften the King’s heart, especially when most of his barons supported it.

The concept of law which limits the freedom of belligerents is usually traced to 17th- and 18th-century jurists like Grotius and Pufendorf. By the time of the American Revolution, both British and American military courts were trying violators (usually, of course, belonging to the other side) of what had by then become the customary law of war, the “practice of civilized nations.” Grotius and the other fathers of international law had based their arguments in large part on moral, and even theological, considerations, but Gibbon, an 18th-century rationalist, if not a cynic (and no friend of Christianity), still saw the law of war as founded on convenience:

The laws of war, that restrain the exercise of national rapine and murder, are founded on two principles of substantial interest: the knowledge of the permanent benefits which may be obtained by a moderate use of conquest and a just apprehension lest the desolation which we inflict on the enemy’s country may be retaliated on our own.

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Whatever its impulse, codification of the customary law of war began in the 19th century. A landmark was General Order 100 of April 24, 1863, “Instructions for the Government of the Armies of the United States in the Field,” drafted by Professor Francis Lieber of Columbia (himself a soldier in the Napoleonic wars, with sons in both the Union and Confederate armies) and put into effect by Abraham Lincoln. Lieber’s code, of course, had no binding effect on other nations, but it summarized, clarified, and improved the rules which most of the countries of Europe at least professed to respect, and is a direct ancestor of the treaties now in force.

The modern law of war has two sources: treaties and custom. The major treaties are the Hague Regulations of 1907 and the Geneva Conventions of 1949 (which, in the light of World War II, revised the Geneva Conventions of 1929), especially those relating to prisoners of war, the wounded and sick, and the protection of civilians. The signatories to the treaties, who include practically every nation in the world, are bound to obey and enforce their provisions. But there are many problems on which they do not touch, such as the use of nuclear weapons; they do not apply to some types of hostilities, and their application to others may be doubtful; and they are full of deliberate ambiguities. Hence a gratifying and unusual weight is sometimes accorded to the views of learned commentators, both on the meaning of the treaties and on the customary law in areas not covered by the treaties. Authority on such questions is also to be found in the manuals published by many nations for the guidance of their own forces (such as Part III of the British Manual of Military Law, The Law of War on Land, and the United States Department of the Army Field Manual 27-10, the Law of Land Warfare) and the decisions of domestic courts, such as the Supreme Court of the United States and the British Privy Council.1 These last two, of course, to the extent that they go beyond mere restatement of the treaties, are more persuasive in their own countries, but they certainly rank as precedent even in foreign countries. Contrary to the impression created by so many politicians and journalists, few of whom seem to have read either document, the Nuremberg Charter and Judgment added very little to the law of war (as distinct from “crimes against peace” and “crimes against humanity”); all but three of those who were sentenced at Nuremberg (and all but one, Streicher, of those executed) were found guilty of acts which in 1939 were universally recognized as war crimes—as the Charter described them: “murder, ill-treatment, or deportation to slave labor or for any other purpose of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns, or villages; or devastation not justified by military necessity.”

Probably the only rule of customary law, not embodied in the treaties, upon which all or almost all scholars and governments would agree is that the amount of force employed by a belligerent against the enemy should not exceed that which it reasonably believes necessary to the achievement of some legitimate military goal—which is often an exceedingly difficult question of fact. The massive bombings of Hamburg and Frankfurt, although they necessarily inflicted enormous suffering on civilians, were not, in my opinion, war crimes, for the RAF had no other way to knock out such legitimate targets as arms factories, submarine pens, and transportation networks. But many people, including me, think that the bombing of Dresden fell into a different category, because the German armies had by that time collapsed, and the bombing did little or nothing to hasten the end of the war. The bombings in Vietnam undoubtedly had the military purpose of destroying enemy troops and supplies and interfering with their movement. Whether they were an excessive or “disproportionate” use of force, and therefore illegal, depends on whether those goals could have been achieved by less and more discriminating force—a military question which I am no more competent to decide than is Professor Falk or Mr. Clark. The fact that the bombing did not produce victory (except in the sense that North Vietnam and the Vietcong have not conquered South Vietnam) does not, of course, demonstrate that it was an unjustifiable use of force. A general does not become a war criminal because he loses a bloody battle, even if he had small hope of winning it.

The treaties do, however, clearly and categorically prohibit many acts—such as the torture or killing of prisoners of war—even in circumstances in which those acts could be argued to serve an important military purpose. These categorical prohibitions, it must be admitted, are of a somewhat elemental sort, condemning acts which offend the morality of practically all people and governments. It can, of course, be argued that the law of war ought, for example, to forbid many means of destruction which it does not now forbid. But nations, if they are willing to resort to violence at all, have been reluctant to place narrow limits on the kinds of violence which they can employ—especially on weapons in which they think they have an advantage over potential foes. Cobras would advocate the outlawing of hooves, claws, and cutting teeth, but would denounce in the strongest terms a proposal to outlaw venom.

It is thus possible in many or most cases to say with some precision what the law of war is and therefore what acts are war crimes. If the law of war is not as clear as, say, the Uniform Commercial Code, it compares very favorably with the Sherman and Clayton Acts.

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As with all law, and especially international law, enforcement is the toughest problem. Protest, the “appeal to world opinion,” though constantly resorted to by all belligerents, and possibly useful as propaganda, has never proved very effective in forcing the enemy to stop doing whatever it is the protester is protesting about. Reprisal—an act which would itself be illegal if it were not in retaliation for a prior violation by the other side—is a two-edged weapon, with a tendency to invite counter-reprisals, and has not been much used in modern times. (But the fear of reprisal may operate as a deterrent; it probably accounts for the fact that nobody used gas in World War II.) The Geneva Conventions forbid reprisals against prisoners of war or noncombatants.

The remaining method of enforcement is trial and punishment of those who violate the laws of war. Such trials have usually taken place in the courts of the victors. (The commentators agree that a war criminal can be tried by any sovereign which has physical custody of him, but nations have rarely shown much interest in trying crimes of which they were not the victims.) Many such trials were held after World War II, some before International Tribunals, composed of judges appointed by the victors, in Nuremberg and Tokyo, and some in the courts, usually military, of the United States, Great Britain, France, Russia, and many other nations.

Although I think that the great majority of the resulting convictions were just, the fairness of a trial in such a court must necessarily be suspect. Moreover, this method of enforcement is available only when there is a victor. When a war ends inconclusively, as the Korean war ended and the Vietnam war appears to be ending, neither side is likely to try war criminals in its custody, for fear that the other will retaliate—by fabricating charges if necessary—against its own prisoners. Ideally, of course, war crimes would be tried in an impartial international tribunal. But no such tribunal exists, and I find it extremely difficult to imagine one whose impartiality the United States and North Vietnam, Israel and Egypt, Pakistan and Bangladesh, Russia and China, would all be willing to trust.

Thus, at the present time, it seems to me that the most realistic prospect for punishing war criminals is by trial in the courts of the accused’s own country. All of the Geneva Conventions obligate each signatory power to search for persons alleged to have committed “grave breaches” of those Conventions and to “bring such persons, regardless of their nationality, before its own courts.” There is still too little precedent for such enforcement of the law of war. I know of no instance in which North Vietnam or any other totalitarian government has ever accused a member of its own forces of a violation of the Geneva Conventions or any other war crime. But the most recent figures I have been able to find show that, as of April 1971, American courts-martial had tried 117 servicemen, and convicted 60, on charges of murdering civilians in Vietnam; an unknown, but probably larger, number had been tried for lesser offenses, such as rape and robbery, against civilians. Murder and other violence against the persons of noncombatants or captured enemies violate the Geneva Conventions, but they are also, of course, violations of the Uniform Code of Military Justice and have been charged as such. The main practical difference is that trial by court-martial for a violation of the Code guarantees the accused procedural protections and appellate review to which he might not be entitled if he were tried by a military commission for a war crime.

Some of the acquittals were probably unjustified, and in at least one case, that of Captain Ernest Medina, the acquittal may have been based on the military judge’s erroneous instruction that Medina had no responsibility for the My Lai massacre unless he had “actual knowledge” of it: the law, as laid down by the Supreme Court in General Yamashita’s case, is that a commander is responsible for war crimes committed by his subordinates, if he knew or should have known that they were going on and failed to do what he could to prevent or punish them. It is also safe to assume that many war crimes committed by Americans have never been investigated, tried, or punished. The Pentagon has not shown much enthusiasm for investigating the possible failures of commanders at divisional and higher levels to take adequate measures to prevent and punish war crimes. Moreover, the Department of Justice seems to take the position that an honorably discharged serviceman cannot be tried for a war crime committed prior to his discharge. The Supreme Court did hold some years ago that such a discharged soldier could not be court-martialed for an ordinary offense—i.e., one which was not a war crime—committed prior to his discharge. But it had earlier held, in World War II, that a Nazi saboteur who was an American civilian could constitutionally be tried by a military commission for a war crime, and it did not overrule that decision. I am myself of the opinion (though I seem to be in the minority) that a discharged serviceman can be tried by a military court on a charge of violating the law of war. In any case, Congress could and should give the federal courts jurisdiction to try such cases: under the Geneva Conventions, in fact, the United States is obligated to “enact any legislation necessary to provide effective penal sanctions” for persons committing “grave breaches.”

The record is thus very far from perfect. All that can be said is that it is a better record than that of any other nation in the world and that it lends a degree of credibility to the Pentagon’s numerous orders and regulations which aim to prevent and punish war crimes by requiring report and investigation of such incidents and the training and indoctrination of the troops on the subject.

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It is safe to say that in all wars the forces of all belligerents will violate the law of war to a greater or lesser extent. The difference, which is important, is one of degree and government policy. War crimes will only be wiped out when war itself is wiped out. Few, if any, nations seem to be prepared to take that step, and I am not impressed by the argument that the law of war is immoral, and ought to be abolished, because it legitimizes war. I very much doubt that any of the wars of the present century, great or little, would have been avoided if the Hague and Geneva Conventions had never been signed. The fighting in Vietnam has been unusually dirty, and the record of the American forces seems to me much worse than it was in World War II or the Korean war. The My Lai massacre was the worst atrocity to be charged against American troops since the Fort Pillow and Sand Creek massacres of 1864 (the former committed by Confederates against Union soldiers and the latter by a regiment of Colorado volunteers against Indians) and the Wounded Knee massacre of 1890. As the court-martial records show, and other evidence suggests, there have been many other incidents in which American soldiers have deliberately killed noncombatants and captive combatants, although I know of no substantial evidence that any of these episodes has been on a scale remotely approaching that of My Lai. The United States has also been guilty of some mistreatment of prisoners of war and of some degree of complicity in their mistreatment by the South Vietnamese, although both the United States and South Vietnam take the position that the Geneva Convention on POW’s is fully applicable, and both permit the International Red Cross to inspect their POW camps for compliance with that Convention. There has certainly been some degree of command failure to take adequate measures to prevent and punish violations, although, on the evidence so far available, I am doubtful that such guilt is widespread or that it extends to commands above the brigade or division level. (The Peers Report, which, since the army apparently proposes no further courts-martial arising out of My Lai, should promptly be published, would presumably tell us more about this.)

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This bad record is not palliated by the fact that, on the very substantial evidence which is now available, the record of North Vietnam and the Vietcong is much worse. The New York Times, which cannot be accused of chauvinist bias against them, has (to its credit) printed many eyewitness accounts of such incidents as the massacres of civilians at Hue (which seems to have involved about 3,000 victims), Duc Duc, and, most recently, An Loc. There have been countless similar episodes on a smaller scale, such as the very recent attacks on the refugee camps at Danang. It has been estimated that by 1969 North Vietnamese and Vietcong forces had deliberately killed 25-30,000 non-combatants, in order to spread terror, deter cooperation with the government, and encourage cooperation with themselves. The number must have greatly increased, especially since the start of North Vietnam’s 1972 offensives. Indirect, but convincing, confirmation of these estimates is furnished by the way in which civilian refugees in South Vietnam have voted with their feet, which is the only effective method of voting in that part of the world. When they flee from an area of combat, they always flee away from the North Vietnamese, never to territory occupied by them, which strongly suggests that these experienced observers fear the North Vietnamese more than they fear the Thieu regime.

There is less evidence of North Vietnamese violation of the Geneva Prisoner of War Convention, principally because North Vietnam takes the position that that treaty is inapplicable to the war in Indochina and refuses to allow inspection by the International Red Cross or any other neutral agency or to obey other provisions of the treaty, such as those relating to prompt notification of the names of captives and the right of prisoners to receive and send mail. This position was originally based on the contention that there was no armed conflict between signatories, since the war was purely a civil war within South Vietnam, in which no North Vietnamese forces were engaged. What justification was later adduced I do not know and cannot imagine. The purpose of that government’s refusal to obey the treaty was presumably to increase American concern for the prisoners and thus increase pressure to accept North Vietnam’s terms for releasing them. Upon the available evidence, I do not share Ramsey Clark’s trustful confidence, based on supervised interviews with selected prisoners who remained in North Vietnam’s custody, that that government was, in fact, obeying the Convention. But I emphasize again that the atrocities of the North Vietnamese and the Vietcong, however numerous and bloody, do not excuse war crimes by United States forces—and, in fact, no such claim has been made by any responsible person.

It is curious to note that in none of the voluminous publications by Professor Falk, Professor Noam Chomsky, et al., on war crimes in Vietnam do I find any clear indication that anyone except the Americans and South Vietnamese has committed any crimes. Nowhere in the 590 pages of Crimes of War, edited by Professors Falk, Robert Jay Lifton, and Gabriel Kolko,2 do I find any reference to Hue or Duc Duc. About the closest Professor Falk comes to raising this indelicate topic is this: “Some may say that war crimes have been committed by both sides in Vietnam. . . . Such a contention needs to be evaluated, however, in the overall context of the war, especially in relation to the identification of which side is the victim of aggression and which side is the aggressor.” In other words, it is all right for belligerents whom Professor Falk believes to be the victims of aggression to commit war crimes. Elsewhere he reinforces this reasoning by arguing that guerrillas like the Vietcong (or, presumably, Al Fatah or the Irish Republican Army) have “no alternative other than terror to mobilize an effective operation.” Professor Chomsky, a subtler casuist, says that if the international law of war permits the tactics employed by the United States and other governments, but not those of the guerrillas, then that law is of “no moral force or validity.” It follows that if the North Vietnamese or the Vietcong direct artillery, mortar, or machine-gun fire at columns of refugees, the act is legal, and moral, since it serves the Good Cause by creating confusion and traffic blocks behind the lines of the South Vietnamese.

It is true that the treaties, as they now stand, prohibit many of the tactics employed in what the countries which Professor Falk calls “socialist” call “wars of national liberation,” which mean insurrections within the territory of one country, more or less openly supported (by the furnishing of troops, arms, and sanctuary) by a second power friendly to the insurgents but ostensibly not at war with the first sovereign. The insurgents typically do not wear uniforms or carry arms openly; their object is so far as possible to make themselves indistinguishable from the civilian population so that it is difficult to resist or attack them without endangering non-combatants. They typically resort to assassination and other acts of terror against noncombatants. Such a tactical doctrine violates the first and most basic principle of the Hague and Geneva Conventions, which is that combatants are so far as possible to be distinguished from noncombatants. And it must be conceded that the guerrillas would have small chance of success if they followed the rules of those treaties. None of the signatory governments, whether totalitarian or democratic, had any desire to facilitate domestic insurrections, at least in their own countries.

The law of war, then, as it now exists, makes criminal most of the tactics which offer to guerrillas their only chance of success. If there are no legal or political means by which the insurgents can pursue their ends—that is, when there are no honest elections, no honest courts, and no constitutional safeguards against oppression—they cannot fairly be expected to obey the rules prescribed by those in power. In their case, the law of war, to the extent that it applies to them, seems to me in part unjust. It does not follow that that law should be changed to permit them deliberately to kill the innocent in order to create terror or seize innocent hostages in order to extract concessions. But here I find myself straying into a moral question and had better desist, if only because the international law of war has little to do with most of the terrorists.

The activities of organizations like the IRA or the various Palestinian terrorist groups are neither protected nor condemned by the law of war; it does not apply to them at all, even if they are receiving support from an outside government, or even if they are agents of that government. They are simply violators of the criminal law of the country in which they act, to be tried and punished in whatever way that law prescribes. If they can raise the violence to a level at which it can be called “an armed conflict not of an international character occurring in the territory of one of the High Contracting Parties,” as the Vietcong did and the IRA has very nearly done, the Geneva Conventions give them some basic protection—if they surrender or are placed hors de combat by wounds they may not be subjected to “murder, mutilation, cruel treatment, and torture” or executed “without previous judgment pronounced by a regularly constituted court affording all the judicial guarantees which are recognized as indispensable by civilized peoples”—although it is not easy to think of any guarantee which is not dispensed with by some arguably civilized peoples. They are certainly not entitled to be treated as prisoners of war, and they can be tried for violating the local law. Even if there is an armed conflict betwen nations party to the treaties, the irregulars are entitled to no more protection than this, unless they wear some sort of insignia recognizable at a distance, carry arms openly, and themselves obey the laws of war—which, of course, they almost never do. During Dr. Sukarno’s “confrontation” with Malaysia, Osman Bin Haji Mohammed Ali, and another member of the Indonesian army, wearing sports shirts and slacks, planted a satchel charge in a Singapore bank and killed a couple of tellers. The Privy Council, assuming that there was an “armed conflict” between the two countries and that the Prisoner of War Convention was applicable, held them outside its protection; they could be, and were, tried for murder and sentenced to death by an ordinary Malaysian criminal court. (I have a doubt, which may seem rather technical, about the Tightness of the British judges’ holding; as I read the treaty, if the defendants were members of Indonesia’s regular armed forces, they were entitled to treatment as POW’s, although they could still have been tried for a war crime.) North Vietnamese regulars, at any rate, are entitled to treatment as prisoners of war, and the United States and its allies (but, as already noted, not North Vietnam) take the position that the fighting in Indochina was an armed conflict between signatories, which plainly it was, and that the Geneva Conventions are applicable in their entirety.

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Professor Falk, of course, asserts that the United States was waging a war of aggression in Vietnam. From this he draws two conclusions: first, the “policy-makers responsible for the war during its various stages” are war criminals; second, that anyone who agrees with his finding, or ought to agree with it, i.e., everyone, has not only a “duty of conscience” but a legal right, arising from international law and superior to the provisions of domestic law, “to resist participation in and support of that war effort by every means at his disposal.” Presumably the means at his disposal include refusal to serve in the armed forces or to pay federal taxes; I do not know whether Professor Falk means also to include burning Selective Service offices and bombing ROTC buildings. I have grave doubts about the validity of this reasoning and graver doubts about its premise.

The Nuremberg Charter and Judgment are undoubtedly precedent for the proposition that the “initiation or waging of a war of aggression” violates international law. But I take a dim and skeptical view of the application of this principle. The difficulty is that Adolf Hitler was about the only ruler since Frederick the Great who scarcely bothered to claim that he was the victim of aggression. Even North Korea advanced some sort of theory that its invasion of South Korea was launched in self-defense. The Charter of the United Nations, of course, recognizes the right of self-defense, including collective self-defense. (Some countries go farther; China, for example, apparently takes the position that it is proper to initiate a “just” war.) There is no consensus whatever as to whether Arabs or Israelis are aggressors, and the question is certainly no less complex in Southeast Asia than in the Middle East. Large volumes could be, and have been, filled with arguments—some by reputable scholars—on the question. It is hard for me to see how anyone much above the intellectual level of Jane Fonda can take seriously the idea that Presidents Kennedy, Johnson, and Nixon, and all their “policy-making” subordinates, intended to emulate Hitler by starting and waging a war of aggression. I think it far more probable that they thought they were applying the lessons of Munich and Korea, that they were international policemen promoting peace by deterring aggression. Indeed, my objection to United States policy in Vietnam is that it has been based far more on morality than on a prudent appraisal of this country’s selfish interests. The evidence simply does not support Professor Falk’s verdict of guilty. I would myself be unwilling to prosecute the rulers of North Vietnam on such a charge, although I regard the case against them as stronger than that against the American Presidents and their advisers.

The concept that everyone has a duty to resist a war which Professor Falk finds aggressive and immoral is often expanded, by reasoning still fuzzier than his, to include the notion of mass guilt; every citizen of the United States, except the saints and martyrs of the anti-war movement, is guilty of the war crime at My Lai; the unfortunate Lieutenant Calley was merely a scapegoat. To a lawyer, at least, this is nonsense, and pernicious nonsense at that. A war crime, like any other crime, requires personal dereliction. A military commander, whether General Westmoreland or Captain Medina, is responsible for crimes committed by his subordinates if he ordered them or if he failed to do what he reasonably could to prevent and punish them, and not otherwise. Likewise, a soldier is under no duty to obey an unlawful order; he has (as the Court of Military Appeals has frequently held) a duty to disobey one which an ordinary man would realize was unlawful, such as an order to kill a noncombatant or a captured enemy. In all of the reported convictions for such offenses it was pretty plain both that the accused knew that his act was illegal and that he could have refrained from it.

There have been many loud and eloquent assertions that American bombing in Vietnam was a war crime on a gigantic scale. But no treaty forbids aerial bombing, and the customary law condemns only bombing (or any other type of force) which is unrelated or disproportionate to the achievement of a military purpose. A bombardment (by airplanes, artillery, rockets, or mortars) whose sole or principal purpose is to kill noncombatants would be a war crime, precisely as My Lai was. But there is very little hard evidence against, and a good deal of evidence to support, the United States’s contention that much effort was expended, and some peril incurred, to limit the risk that bombs would kill noncombatants or destroy non-military property. A military target cannot be protected from attack by the simple expedient of placing it in the middle of a civilian community, and I am profoundly skeptical of the claims by North Vietnam and its friends that American bombs usually hit only hospitals, schools, and homes for the aged. The evidence does not persuade me that the bombing in Vietnam was any more illegal than was the bombing of Germany, when bombs were dumber than they are now. I note with some interest that Senator McGovern, while denouncing the bombing in Vietnam as “immoral” and “probably one of the worst crimes in the history of the world,” made a good deal of his excellent record as a bomber pilot over Germany.

In areas where the civilian population is under the control of a belligerent, the inevitable risk can be lessened by removing them from the vicinity of military targets, such as enemy troops, and areas of combat. But when the United States and South Vietnam did this, polemicists like Leonard Boudin concluded that “the forced ‘relocation’ of rural populations . . . [is], in all contexts [a] ‘war crime.’ . . .” He cites an article by Noam Chomsky in the New York Review of Books, an editorial in the New Yorker’s “Talk of the Town,” and other authorities still less legal. It is magnificent, but it is not law. I infer that Mr. Boudin, although he is a lawyer and was writing in the Harvard Law Review, preferred to consult his emotions and his favorite tracts rather than his law library. Consulting my own library, I find that the Geneva Convention on the Protection of Civilians covers only those who are under the control of an enemy nation—aliens who are resident in its territory, and the inhabitants of areas conquered and occupied by its forces. The Hague and Geneva Conventions, and customary international law, in fact, encourage the evacuation of noncombatants from theaters of combat. The Secretary General of the United Nations in 1970 urged all belligerents “to ensure that civilians are removed from, or kept out of areas . . . likely to place them in jeopardy or to expose them to the hazards of warfare.” But I expect that Mr. Boudin and the Harvard Law Review will henceforth be cited to prove that forced evacuation from such areas is a war crime.

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Brief comments are perhaps in order on other accusations which have been made with particular frequency and emotion. The use of napalm, for example, may be immoral, but it is not illegal—subject to the usual caveat that there must be military justification for its use. Neither treaty nor customary international law forbids the use of fire. Greek fire, whose secret the Byzantines managed to preserve for centuries, goes back at least to the 7th century and helped repel more than one barbarian invasion. In modern wars belligerents (including North Vietnam and the Vietcong) have frequently employed flamethrowers. Likewise, neither treaty nor customary law forbids the mining of a belligerent’s territorial waters, as in Haiphong harbor. (Such mining is not a “blockade,” a broader concept which may include the interception, destruction, or capture of neutral vessels on the high seas.) I do not find convincing the allegations that the United States deliberately attempted to destroy North Vietnam’s flood-control dikes, if only because it seems obvious that such a campaign would have produced far more damage than the North Vietnamese could show to Ramsey Clark or anyone else. But even intentional bombing of dikes and dams is not per se illegal: when the RAF bombed the Mohne and Eder dams in 1942, in order to flood an important industrial area, only Dr. Goebbels called it a war crime.

I expect that because I say that many acts which cause great suffering are not illegal I shall be accused of callous indifference to morality and humanity. I shall, in effect, be accused of talking like a lawyer. Indeed, I would not be very much surprised if my attempt to discuss the question with as little emotion as possible were treated as itself immoral, if not criminal. The international law of war, as it now exists, is undoubtedly very imperfect. Its most fundamental rule, which is that combatants are so far as possible to be distinguished from non-combatants, in effect outlaws the sort of guerrilla warfare which has become common in many parts of the world and makes unlawful belligerents of those who engage in it. By the same token, it permits the use of modern weapons which can reach military targets far in the enemy’s rear but which necessarily endanger the innocent. It has never restricted the freedom of sovereigns to mistreat their own citizens. Such as it is, its enforcement depends largely on the willingness of governments to discipline and punish their own forces—a willingness which has only begun to develop in some countries and of which there is no discernible trace in others. All that can be said is that it is better than no law: I think it probable that much suffering has been prevented in the last sixty years by the existence of a body of law which nearly all governments profess to respect and which most are reluctant to violate openly and on a large scale.

The prospects are not bright for changes in the conventional law of war which would mitigate the savagery of “wars of national liberation.” It is nearly impossible to imagine even rudimentary rules by which guerrillas and terrorists would feel themselves bound, and equally difficult to imagine governments conceding them any greater rights than they have now. Some improvement may come from better technology—more accurate weapons, like “smart” bombs, which can attack military targets with less danger to nearby civilians. Above all, much more can and should be done, especially by countries like the United States, which have a free press and a relatively enlightened public conscience, to prevent and punish war crimes by their own forces—regardless of whether there is any hope of reciprocity.

_____________

 


Footnotes

1 The authorities on which I have chiefly relied in this article include the texts of Hague Convention No. IV of 1907 and the Geneva Conventions of 1949, particularly those relating to prisoners of war and the protection of civilian persons in time of war; Oppenheim, International Law (8th ed., 1955); Winthrop, Military Law and Precedents (2d ed., 1895); McDougal & Feliciano, Law and Minimum World Public Order (1961); United States Department of the Army Field Manual 27-10, Law of Land Warfare (1956); various opinions of the Supreme Court of the United States, notably Ex parte Quirin, 317 U.S. 1 (1942) and In re Yamashita, 327 U.S. 1 (1946); and a recent and comprehensive survey, Paust, My Lai and Vietnam: Norms, Myths, and Leader Responsibility, 57 Military Law Review 99 (1972) .

2 Random House (1971), $8.95.

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