To large numbers of Americans, the defeat of their country’s arms in Vietnam not only represents a deserved national humiliation in an ill-advised foreign involvement, and not only proves the political and military ineptitude of those who waged the war, but also constitutes just retribution for what amounts to a moral outrage. This view of the American record in Vietnam is by now very widely accepted, especially among younger people, for whom the American role in Vietnam appears to stand as the epitome of evil in the modern world.
I have just spent five years studying the record, including classified documents not previously examined by any outside researchers. My conclusion is that while the charges of American political and military ineptitude in Vietnam can be sustained by all the available evidence, and while the question of the overall prudence or justice of the American involvement is not easily resolved, the charges of officially condoned crimes and grossly immoral conduct are without substance. It is to this last class of issues that I address myself here.
Every war has its share of atrocities, and Vietnam was no exception. Every war also causes largescale death and suffering to the civilian population on whose territory it is fought. But the horrors and outrages inherent in war are often ignored when the fighting is crowned with success and when the conflict is seen as morally justified. Thus, despite the fact that the Allies in World War II engaged in terror bombing of the enemy’s civilian population, and generally paid only minimal attention to the prevention of civilian casualties, scarcely anyone on the Allied side objected. The war against Nazism and fascism was regarded as a crusade in which the Allies could do no wrong, and the fact that it ended in victory further vindicated the use of means that were questionable on both legal and moral grounds.
The Vietnam war, on the other hand, dragged on for years without a real decision, and it was never perceived as a clear-cut struggle between good and evil—unless it was they who were good and we who were evil. And this indeed is how the conflict was seen by many: a heroic underdog fighting the world’s strongest and best-equipped military power. Moreover, on the Allied side the war took place in a fish bowl (the Communists barred all observers except those known to be supportive of their cause). Every mistake, failure, or misdeed was sooner or later exposed to view, and was widely reported by journalists who were generally critical of the American and South Vietnamese effort. On the other hand, the numerous violations of the law of war and of standards of human decency on the part of the Vietcong (VC) received only sporadic attention and were often rationalized as the justified tactics of resistance fighters battling an oppressive regime and its foreign helpers.
Thus, a situation gradually developed in which the Americans and the South Vietnamese could do hardly anything right. The Communists made skillful use of their worldwide propaganda apparatus to disseminate charges of American war crimes, and they found many Western intellectuals only too willing to accept at face value every conceivable allegation of wrongdoing. Repeated unceasingly, these accusations—no matter how flimsy the evidence for them—eventually came to be widely believed. Among rational people, claimed Noam Chomsky, it was not in dispute that the “United States command is responsible for major crimes in the layman’s sense of this term.” “The fact is,” declared the Committee of Concerned Asian Scholars, “that U.S. war crimes are an accepted and regularly used method of waging war in Indochina.”
There soon emerged a veritable industry publicizing alleged war crimes. American servicemen stepped forward with articles and books based on their experience in Vietnam, and became star witnesses before self-appointed bodies like the International War Crimes Tribunal organized by Bertrand Russell. These proceedings condemned as criminal such American actions as the relocation of population and the creation of free-fire zones, the use of napalm and herbicides, and the treatment of prisoners; they also indicted and convicted the American military for committing atrocities, and for the indiscriminate killing of civilians through bombing and other tactics amounting ultimately to genocide.
Basing myself on a wider range of evidence than has been available till now, I will in the pages that follow deal with these charges one at a time in terms of the international law of war, which aims at mitigating the ravages and cruelties of armed conflict and seeks to impose minimum standards of humane and civilized behavior upon the savagery of combat.
Population Relocations and Free-Fire Zones
Throughout the war, but especially during the years 1966-70, the U.S. and the government of South Vietnam (GVN) engaged in extensive relocations of population, clearing areas of civilians and making them free-fire zones (after December 1965 known as specified strike zones—SSZ).
“One of the most flagrant violations of civilian rights is the forcible relocation of large units of people, in specific violation of Article 49 of the [Geneva] Civilians Convention of 1949, an article framed to avert repetition of the forcible relocations that took place in World War II.” This was the finding in 1967 of a group of well-known American theologians, including Martin Luther King, Jr., Harvey G. Cox, Robert F. Drinan, Abraham Joshua Heschel, Martin E. Marty, and others. It appears, however, that these religious figures were mistaken in their interpretation of the law. Strictly speaking, there is a serious question as to whether Article 49 even applies to the hostilities in Vietnam. But if we stipulate that it does, we have to conclude that it not only allows the evacuation of civilians from a combat zone, but can be read to impose a duty of carrying out such relocations.
Relevant parts of Article 49 read as follows:
Individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying Power or to that of any other country occupied or not, are prohibited, regardless of their motive.
Nevertheless, the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand. . . . Persons thus evacuated shall be transferred back to their homes as soon as hostilities in the area in question have ceased.
The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected persons, that the removals are effected in satisfactory conditions of hygiene, health, safety, and nutrition, and that members of the same family are not separated.
The references to “Occupying Power” show that one of the main intents of this article is to prevent the deportation of people for purposes of subjecting them to forced labor—as the Germans did in World War II. The U.S. in Vietnam was not an occupying power but a co-belligerent, there with the approval of the government of South Vietnam. But even if we were to regard the U.S. as an occupying power, Article 49 specifically recognizes that “the Occupying Power may undertake total or partial evacuation of a given area if the security of the population or imperative military reasons so demand.” It is certainly reasonable to suggest that the relocations carried out in Vietnam qualified on both of these counts.
While it is true that the American command was not merely unselfishly concerned with the “security of the population”—in the sense of protecting people against harm—but also sought to enhance the efficacy of its firepower, nevertheless the relocation of civilians did in fact provide the population with greater security than if it had remained in the combat zone. Conditions in the refugee camps were generally dismal, but the state of hygiene, health, and nutrition was on the whole in line with the local standard of living and with what one could expect in a wartime situation. Efforts were made to return evacuees to their homes as soon as hostilities ceased. (Some of the relocations of Montagnards carried out by the South Vietnamese probably did not live up to the standards laid down in Article 49, but a country’s authority to move its own inhabitants is surely not covered by the Geneva conventions.)
As for “imperative military reasons,” the principle of military necessity allows a belligerent to take all measures not forbidden by international law that are necessary for the defeat of the opponent in the least possible time and at the least cost to himself. In the light of this principle, the relocation of Vietnamese civilians in order to deprive the VC of support does not seem an unreasonable act. An eminent British juridical authority, Hersh Lauterpacht, even grants an occupying power the right to “general devastation” in cases “when, after the defeat of his main forces and occupation of his territory, an enemy disperses his remaining forces into small bands which carry on guerrilla tactics and receive food and information, so that there is no hope of ending the war except by general devastation which cuts the supplies of every kind from the guerrilla bands.”
It is clear that the American command, however mistaken its judgment, really believed that forcible relocation of the civilian population would hasten the end of the war and was the most effective way of depriving the VC of supplies and manpower—the water in which they swam. The question as to what in such a situation constitutes “imperative military reasons” must be answered not by hindsight but in terms of what the military commanders at the time believed to be militarily necessary. As the Nuremberg tribunal ruled in the Hostages case: “It is our considered opinion that the conditions, as they appeared to the defendant at the time, were sufficient upon which he could honestly conclude that urgent military necessity warranted the decision made. This being true, the defendant may have erred in the exercise of his judgment, but he was guilty of no criminal act.”
There is other evidence pointing toward a duty to remove civilians from a combat zone. In 1956, the International Committee of the Red Cross proposed that belligerents be required “to protect the civilian population subject to their authority from the dangers to which they would be exposed in an attack—in particular by removing them from the vicinity of military objectives and from the threatened areas.” In 1970, the Secretary General of the United Nations argued, similarly, that civilians would be best protected if they did not remain in areas of danger, and he urged that the General Assembly “consider the usefulness of an appropriate resolution—a call on all authorities involved in armed conflicts of all types to do their utmost to insure that civilians are removed from, or kept out of, areas where conditions would be likely to place them in jeopardy or expose them to the hazards of warfare.”
Unhappy with life in the refugee camps, or out of sympathy with the Vietcong, many villagers drifted back into or remained in areas declared SSZ’s. Hence, when allied troops carried out ground operations or air strikes in these zones, there were civilians in them who were killed or wounded. However terrible on humanitarian grounds, and however counterproductive from the political point of view, these civilian casualties do not appear to raise an issue of criminal liability so long as adequate notice was given that an area was being designated an SSZ. Applicable rules of engagement did require such notice—after February 1969, a minimum of 72 hours notification in advance. If individual officers occasionally violated these rules, as they undoubtedly did, this was not authorized practice but a transgression of military regulations. Nor can the American command be held responsible for those instances in which the VC forcibly prevented villagers from leaving areas under their control. Lastly, while the Americans for a short time counted the large number of refugees as a political bonus (they later realized that refugees were a heavy liability), there existed no directives by the American command specifically authorizing the generating of refugees.
Bombardment and Destruction of Populated Areas
It is incontrovertible that the allied military effort in Vietnam was characterized by the lavish use of firepower and caused much destruction and death. From this, many critics of American policy in Vietnam have concluded that American combat practices violated the law of war and that the U.S. was therefore guilty of war crimes. U.S. battlefield tactics, charged Richard A. Falk of Princeton University in 1971, involved “the massive use of cruel tactics directed indiscriminately against the civilian population in flagrant violation of the minimum rules of war.”
An analysis of the applicable law of war suggests a different conclusion. It should be recognized, first, that the VC’s practice of “clutching the people to their breast” and of converting hamlets into fortified strongholds was one of the main reasons for the occurrence of combat in populated areas. The existing law of war was not written to encompass this kind of warfare; to the extent that it does apply to insurgency warfare, it prohibits such tactics, for it seeks to achieve maximum distinction between combatants and innocent civilians. According to the Geneva convention of 1949, resistance fighters must carry arms openly and have “a fixed, distinctive sign recognizable at a distance”; the civilian population may not be used as a shield—“the presence of a protected person may not be used to render certain points or areas immune from military operations.” Whether the VC were justified in disregarding these internationally accepted legal norms, as some writers have maintained, is an arguable question. The fact remains that by carrying the war into the hamlets and by failing properly to identify their combatants, the VC exposed the civilian population to grave harm.
The Fourth Hague Convention (1907) prohibits “the attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended.” “Firing on localities which are undefended and without military significance,” stated a 1966 directive of the American command in Vietnam, “is a war crime.” Yet according to the general practice of states, once a village or town is occupied by a military force, or is fortified, it becomes a defended place and is subject to attack. The same holds true for civilian homes used to store war materiel. Such places become legitimate military objectives, and injuries suffered by the civilian population are considered incidental and unavoidable. Indeed, as the Geneva convention acknowledges, even hospitals lose their immunity if “they are used to commit, outside their humanitarian duties, acts harmful to the enemy,” and if due warning has been given to cease such use. One can question the wisdom of attacking the VC once they had holed up in a hamlet—such a response might well be counterproductive in a counterinsurgency setting—but the practice was surely not a violation of the law of war.
In attacking a defended place, did American forces observe the rule of proportionality? The U.S. Army’s Law of Land Warfare (1956) lays down that “loss of life and damage to property must not be out of proportion to the military advantage to be gained.” In the context of Vietnam, this meant, for example, that an American unit drawing a single sniper shot from a village was not justified in obliterating the entire village with artillery and air strikes. But what if there were five snipers blocking an important bridge situated in a hamlet? How could a commander make a precise estimate of the size of the enemy unit that was firing upon his men? One sniper using an automatic weapon could sound like a platoon. These were the sorts of difficult situations faced by American officers in Vietnam who, as always in combat, had to act on incomplete information.
There is no question that some military men panicked and overreacted to provocation. But, as with the policy of relocation, the question of whether a certain action was justified by military necessity must be decided in terms of the way a commander judged the specific circumstances of the situation at the time. “If the facts were such,” declared the Nuremberg tribunal in the Hostages case, “as would justify the action by the exercise of judgment, after giving consideration to all the factors and existing possibilities, even though the conclusion reached may have been faulty, it cannot be said to be criminal.” If a commander in Vietnam employed artillery and air strikes against a village—whether because he overestimated the size of the enemy force or because he sought to avoid excessive casualties to his own men—and his action resulted in the loss of civilian life, he may have damaged the effort to win the political support of the people of the South, but his action was probably not illegal.
Another source of confusion in judging the issue of civilian casualties was the designation by many critics of all villagers as innocent civilians. Yet we know that on occasion in Vietnam, women and children set mines and booby traps in place, and that villagers of all ages and sexes, willingly or under duress, served as porters, built fortifications, or engaged in other acts helping the Communist armed forces. It is well established under the laws of war that once civilians act as support personnel, they cease to be noncombatants and are subject to attack. Of course, allied troops had no way of knowing how many dead persons found after battle in a defended hamlet were VC or VC helpers and how many were innocent civilians. Here again we see the terrible consequence of the fact that the VC chose to fight from within villages and hamlets which provided useful cover, avenues of escape, and a source of labor for the building of fortifications. Inevitably the civilian population was involved in the fighting.
The Geneva convention forbids the destruction of personal property “except where such destruction is rendered absolutely necessary by military operations.” It does allow the destruction of fortifications. Since the VC often built their trenches, bunkers, and escape tunnels right in the middle of hamlets—if not in, around, and underneath huts and houses—the destruction of fortifications usually amounted to the destruction of homes or even entire hamlets. This is what happened in the widely publicized case of Cam Ne (4) in 1965 as well as in numerous other instances, and critics soon began accusing U.S. forces of conducting a scorched-earth policy. In response to one such complaint, involving the burning of two villages in Binh Dinh province, the Army’s Assistant Judge Advocate General explained that “the two Vietnamese villages were not burned as a reprisal for the hostile fire that came from the houses in the village. They were destroyed because the houses and tunnel networks connecting them constituted enemy fortified positions.” There undoubtedly were many cases where houses were destroyed without compelling justification: in practice it was often difficult to distinguish an enemy bunker, constructed right under a hut, from a shelter built by a villager for his protection. Once again, we are dealing here with incidents that were a consequence of the warfighting methods of the VC and not of the Americans.
The Fourth Hague Convention forbids the employment of “arms, projectiles, or material calculated to cause unnecessary suffering,” and the American Law of Land Warfare accepts this prohibition. The rule is an expression of the general principles of proportionality and humanity which reflect the intent of the law of war to avoid needless suffering. Yet in practice states have drawn the line between necessary and unnecessary suffering in a way hardly suggested by the humanitarian spirit of the Hague convention. The criterion has normally been whether a weapon inflicts suffering disproportionate to the military advantage to be gained by its use, and this has meant that no militarily decisive and effective weapon has ever been regarded as causing “unnecessary suffering.” Suggestions that humanitarian factors such as the nature of the injury, long-term medical effects, the risk of death, etc., be given greater weight have so far not been accepted, and the test has remained that of actual practice. According to the U.S. Law of Land Warfare: “What weapons cause ‘unnecessary injury’ can only be determined in light of the practice of states in refraining from the use of a given weapon because it is believed to have that effect.”
Fire as a weapon of war has a long history. In this century, petroleum fuels have been used in flamethrowers, bombs, shells, and mines, but it was the discovery of the thickener napalm in World War II that greatly increased the effectiveness of incendiary weapons, especially against equipment and fortified positions. It is estimated that during World War II, about 14,000 tons of napalm bombs were used, two-thirds of them in the Pacific area; in the Korean war, the U.S. Far East Air Force dropped a total of 32,557 tons of napalm. But the most extensive reliance on incendiary weapons took place in Indochina. Napalm bombs there constituted about 10 per cent of all fighter-bomber munitions, reaching an estimated total of close to 400,000 tons during the course of the war.
Incendiary munitions proved particularly important against enemy forces holed up in caves, bunkers, and tunnel complexes, and against targets in such close proximity to allied troops that high-explosive fragmentation bombs could not be employed. The American command’s rules of engagement provided that in attacks on villages and hamlets, “the use of incendiary-type ammunition will be avoided unless absolutely necessary in the accomplishment of the commander’s mission,” but in practice this rule does not appear to have restricted the use of such weapons. A Marine captain told the House Armed Services Committee in September 1965 that napalm at first was denied in some instances, but “now we can have napalm whenever we want it.” Air strikes with napalm bombs are indeed mentioned routinely in most after-action reports. Also, during Operation Cedar Falls in January 1967, flamethrowers were employed “to assist in the capture of VC located in bunkers and tunnels. The flamethrowers reduced the amount of oxygen in the tunnels, to say nothing of producing a significantly adverse psychological effect on the enemy.”
Protests against incendiary weapons were heard early in the war. Critics charged that napalm was being used indiscriminately against civilian targets, and they argued that it was an illegal weapon because it maximized suffering by killing its victims slowly and maiming permanently. In January 1967, Ramparts magazine published an article which included large color photographs of burned children; the author stated that he personally had seen thousands of infants and small children burned by napalm in Vietnamese hospitals. The International Commission of Inquiry into U.S. Crimes in Indochina, meeting in Oslo in 1971, concluded that napalm and phosphorus bombs constituted a prohibited method of warfare because they were “designed to cause ‘unnecessary suffering’ as defined in Article 23 of the Fourth Hague Convention of 1907.” During the fighting near An Loc in the spring of 1972, a little girl was hit by napalm; the picture of this naked child running in terror along a road shocked the world.
There is no question that incendiary munitions in Vietnam caused civilian casualties, including children. But there is also no question that the impression created by America’s critics of many thousands of villagers and children being burned by napalm was false. In the spring of 1967, a team of physicians representing the Committee of Responsibility to Save War-Burned and War-Injured Vietnamese Children (COR) visited 35 of the 45 government hospitals in South Vietnam and reported 105 burn victims, 29 of whom were children. Thirty-eight of these 105 burns were war-caused; the rest were so-called household burns. The total number of war-burned children seen was 16.
Another medical team, organized by the Agency for International Development (AID), visited Vietnamese hospitals in the summer of 1967 at the suggestion of President Johnson, and found a similar situation: “Throughout our visit, individual teams paid particular attention to burns. The cases were relatively limited in number in relation to other injuries and illnesses, and we saw no justification for the undue emphasis which had been placed by the press upon civilian burns caused by napalm.” In a separate account, Dr. John H. Knowles of the Massachusetts General Hospital, a member of the AID-sponsored team, wrote that, in all, “burns due to napalm are very few and far between. . . .”
Both medical teams agreed that the majority of burns were due to the explosion of gasoline used in lanterns and for cooking as well as from the spillage of hot boiling water from rice pots. Other observers on the scene, including non-American physicians who worked as volunteers in Vietnamese hospitals, have confirmed this finding. An Australian doctor reported in 1968 that exploding petrol lanterns were “probably a more frequent cause of serious burns in Vietnam than napalm or white phosphorus,” and the wife of an English doctor who served on a medical team at Saigon Children’s Hospital wrote that they looked for positive evidence of napalm burns “without seeing a case about which we could be certain. Most of the burns had been caused by domestic accidents. . . .” A radio campaign to alert the Vietnamese to the danger involved in using mixtures containing highly combustible jet fuel had had some success by 1973, though accidents continued to happen. Two fires in refugee camps, which resulted in loss of life, were traced to this source.
Another cause of burn wounds which received even less attention outside Vietnam was the use of napalm-fueled Russian-made flamethrowers by the Vietcong and the North Vietnamese. One incident that did receive publicity because of the scope and enormity of the atrocity was the attack in December 1967 on the Montagnard hamlet of Dak Son in Phuoc Long province, some 75 miles northeast of Saigon, which contained a large number of refugees. Seeking to drive home the point that the South Vietnamese government could not protect refugees, some 600 Vietcong, armed with an estimated 60 flamethrowers, attacked the hamlet at midnight. The ensuing massacre left 252 of the Montagnards dead and nearly 50 wounded, 33 of them with severe burns.
The fact that hospitals in Vietnam had relatively few civilian patients with napalm-caused burn wounds does not in and of itself prove that few civilians were hurt by napalm. Medical studies have shown that napalm burns are deep and that mortality from respiratory embarrassment, shock, fluid loss, and sepsis is high in proportion to the total body surface area involved, especially in the case of children. According to some observers, this meant that under wartime conditions relatively few napalm burn victims were able to reach a hospital alive or, if they did reach medical help, they died soon after admission. In conformity with Vietnamese custom, moreover, many moribund patients were taken by their relatives to die at home. Napalm, wrote the leader of an Australian surgical team which spent three months in 1967 in a Vietnamese hospital, is “an all-or-nothing weapon, and just as it was not usual to be called upon to treat bayonet wounds in World War I or II, . . . it is rare to see napalm burns; in 3 months we did not encounter a single instance.” But the evidence for napalm’s unusually high mortality rate is fragmentary and inconclusive.
There is general agreement that while many patients with third-degree burns will die without feeling much pain, those who survive or those with less severe burns will experience excruciating pain over a long period of time, But it is questionable whether the suffering caused by incendiary weapons is worse than that resulting from the crush and blast effects of high explosives, and even more doubtful is the claim that this suffering is disproportionate to the military advantage derived from the use of such weapons. Because these munitions are grimly effective against underground bunkers and fortified positions, and because their area of effectiveness is more limited than that of high explosives, they are not easily replaceable by other weapons. The consensus of legal opinion, therefore, is that as the law of war stands today, incendiary weapons employed against targets necessitating their use do not violate Article 23 of the Fourth Hague Convention. The actual practice of states in relying on flamethrowers and firebombs in most military conflicts since World War I further demonstrates that no customary rule of international law exists which forbids resort to these weapons.
Defoliation and Crop Destruction
In October 1962, the first large-scale defoliation mission was flown by American planes against some 8,000 acres of mangrove forest along rivers and canals in the Ca Mau peninsula, a long-time VC stronghold in the southern tip of South Vietnam. The first crop-destruction mission carried out by South Vietnamese personnel and helicopters was undertaken on November 21, 1962.
Once approved in principle, both defoliation and crop-destruction programs quickly escalated, reaching a high point in 1967. Between 1965 and 1971, 3.2 per cent of South Vietnam’s cultivated land and 46.4 per cent of the total forest area were sprayed one or more times. Most of these areas were very thinly populated. Only about 3 per cent of the population lived in defoliated areas, and less than 1 per cent in areas where crops were destroyed. According to the guidelines laid down by the Department of Defense, crop destruction was limited to VC-controlled territory in I, II, and III Corps, “where food is scarce and where denial of food would create an operational burden on the enemy.” Special care was to be taken to prevent damage to rubber and fruit trees. The entire herbicide program was formally directed by the South Vietnamese government; U.S. personnel assisted in the selection of targets, planning, and evaluation. A special Air Force unit flew light (C-123) planes with spraying equipment in what was known as Operation Ranch Hand. Aircraft participating in the crop-destruction program had to be flown under the so-called Farmgate rules which required Vietnamese markings and a Vietnamese observer aboard.
Approximately 90 per cent of the total herbicide effort was devoted to defoliation. Carried out along roads and canals, with emphasis on ambush sites and tax-collection points, and in jungle terrain, defoliation was held to be effective in improving aerial observation and inhibiting enemy movement during daylight hours. It also improved the defense of base perimeters by opening fields of fire and facilitating observation from outposts. The crop-destruction program, on the other hand, drew a more mixed evaluation. Given the close relationship between the VC and the rural population, the major portion of the crops destroyed through aerial spraying was inevitably civilian-owned and cultivated. The chief sufferers when crops were destroyed were the local people, because the VC compensated for their own losses by confiscating more food.
The question whether the crops destroyed belonged to the civilian population or were grown solely for the enemy’s armed forces is significant in assessing the legality of herbicide operations. There exists general agreement that enemy forces may be deprived of food and water in order to compel them to surrender. But when measures are taken to render stocks of food and water unusable, this intent should be evident to the enemy to avoid offending Article 23(a) of the Fourth Hague Convention which forbids employment of “poison or poisoned weapons” and which thus prohibits the deliberate contamination of food and water actually consumed by the enemy.
American belief in the legality of the chemical destruction of crops used by enemy forces was based on a memorandum prepared in March 1945 by Major General Myron C. Cramer, then Judge Advocate General, concerning the possible use of chemical anti-crop agents against pockets of Japanese on the Pacific islands. Cramer argued that the use of chemical agents to destroy cultivations or retard their growth would not violate international law, provided “that such chemicals do not produce poisonous effects upon enemy personnel, either from direct contact, or indirectly from ingestion of plants and vegetables which have been exposed thereto.” Following this interpretation, the Army’s manual of land warfare states that the general proscription of poison and poisoned weapons “does not prohibit measures being taken to dry up springs, to divert rivers and aqueducts from their courses, or to destroy, through chemical or bacterial agents harmless to man, crops intended solely for consumption by the armed forces (if that fact can be determined).” But in Vietnam it was impossible to establish with certainty that the crops to be destroyed were intended solely for the enemy’s armed forces.
In such situations, crop destruction can still be lawful if it is demanded by the necessities of war and if the extent of destruction is not disproportionate to the military advantage gained. The property of noncombatants in a war zone does not enjoy complete immunity from attack, and the humanitarian principle that noncombatants should not be deprived of food is similarly not absolute. Thus, it is considered legal to prevent noncombatants from leaving a besieged place in order to worsen the logistical burden of the defenders and hasten their surrender. The 1949 Geneva Convention for the Protection of Civilian Persons in Time of War requires the passage of “essential foodstuffs . . . intended for children under fifteen, expectant mothers, and maternity cases,” subject to the condition that there exist no serious grounds for fearing “that the consignments may be diverted from their destination” or will cause a definite advantage to the enemy’s military efforts or economy. While the application of some of these provisions to the hostilities in South Vietnam is problematic, they do show that civilians may in certain circumstances be deprived of food.
Then there is the question of whether herbicides used for defoliation and crop destruction had poisonous effects upon humans and therefore violated the Fourth Hague Convention. This was the charge made by Communist propaganda from the time herbicides were first employed in Vietnam in 1962.
In America itself, criticism of the use of herbicides was at first limited to concern for the ecology of South Vietnam, and did not endorse Communist charges of poisonous effects on humans. The first intimation of possible harm to man came when a study by the Bionetic Research Laboratories of selected pesticides and industrial chemicals used in the U.S. reported teratogenic effects (malformations) in test animals caused by 2,4,5-T, a component of Agent Orange (named for the color markings on its shipping container), the principal herbicide used in Vietnam. This study, undertaken during the period of 1965-68 and then filed and forgotten, was accidentally found in an office of the Food and Drug Administration in the summer of 1969, and when brought to the attention of the White House led to an announcement on October 29, 1969 that the use of 2,4,5-T was being partially curtailed. When other studies confirmed the teratogenic effects of 2,4,5-T, the Department of Defense began to reduce the scope of the herbicide program. On March 11, 1970, it was announced that all defoliation operations in Vietnam were being reduced by 25 per cent, and on April 15, 1970, the use of Agent Orange was suspended pending a review. At the same time, the Department of Agriculture announced a ban on the domestic use of 2,4,5-T except along rights-of-way and in remote forest and range areas.
The suspension of Agent Orange resulted in a further decrease of herbicide operations. Because of a shortage of Agent Blue, the other commonly used herbicide in Vietnam, two brigades of the Americal Division in the summer of 1970 continued to use Agent Orange for crop destruction in violation of the suspension order. A subsequent investigation by the Inspector General revealed that brigade and division commanders had falsified reports to hide this practice. Disciplinary action was taken against the officers involved, and remaining stocks of Agent Orange were put under stringent control. Both defoliation and crop destruction were phased out completely by June 30, 1971.
Meanwhile, reports were coming out of Vietnam of an increase in the number of stillbirths and birth defects among Vietnamese exposed to herbicide operations. In 1969, the American Association for the Advancement of Science (AAAS) appointed a Herbicide Assessment Commission headed by Professor Matthew Meselson of Harvard University. The commission spent months in preparatory study and in the summer of 1970 went on an inspection tour of about six weeks in South Vietnam. In its report to the AAAS in December 1970, the commission stated that it found no evidence of sudden or new appearance of congenital abnormalities, but added that inadequate health statistics and wartime conditions made any firm conclusions impossible.
In October 1970, Congress ordered the Secretary of Defense to contract with the National Academy of Science (NAS) for a full study of herbicide operations in Vietnam. This assignment was undertaken by a committee headed by Dr. Anton Lang, director of the MSU/AEC Plant Research Laboratory, and a lengthy report was completed by January 1974. The committee had received reports of serious illness and death allegedly caused by herbicide operations, especially among children of the Montagnard people heavily affected by the crop-destruction program, but it could not visit the central highland and concluded that, in the absence of medical studies of the exposed populations, these reports could be neither confirmed nor refuted. With regard to congenital malformations, the committee studied the records of several hospitals but could find no conclusive evidence of an association between herbicides and birth defects. The committee recommended further studies of the effects of dioxin, an ingredient of Agent Orange known to have teratogenic effects in mice and rats, which could be found in the Vietnamese food chain.
As of now, therefore, we have no firm scientific evidence of any direct damage to human health caused by herbicides. The reported increase in the incidence of birth defects may simply be a result of the fact that in the late 1960’s more people in Vietnam were receiving medical care, which would lead to greater reporting of such cases. The damage to the ecology of South Vietnam has no doubt been substantial, though the NAS study shows that the fertility of the soil has not suffered any permanent damage and the loss of timber stocks has also been somewhat less than was originally feared. The charge of “ecocide” has been a politically effective slogan, though its precise meaning is not clear and no evidence whatever of any lasting damage to the economic sustenance of South Vietnam has so far been produced. In any event, the issue of ecological damage is irrelevant to the question of whether herbicides violate the Hague convention, which is concerned only with the effect of weapons upon humans. In a situation where defoliation could prevent casualties, the preoccupation of the critics with environmental issues also demonstrates a certain callousness and indifference to the value of human life.
It is possible to argue that the military should have been more alert and sensitive to the possible biological consequences of herbicide operations, but it must be remembered that the herbicides in question had been used worldwide for the control of weeds and unwanted vegetation without causing serious hazards. The record of the military in this respect is probably no worse than that of civilian authorities with regard to various domestically used pesticides and herbicides. As mentioned above, soon after serious questions about the teratogenic effects of Agent Orange were raised, its use was suspended, and the entire herbicide effort was finally halted. The charge of a deliberate violation of article 23(a) of the Fourth Hague Convention, forbidding the employment of poison or poisoned weapons, would therefore appear to be baseless.
Another legal challenge to herbicides in war has been based on the Geneva Gas Protocol of 1925 which forbids, in addition to poisonous gases, “all analogous liquids, materials, or devices” and “bacteriological methods of warfare.” Even though the U.S. at the time of the war in Vietnam was not a party to this treaty, it has been argued that the treaty had become declaratory of customary law and therefore was binding on all states irrespective of their adherence to the protocol. But there is some question whether the Geneva protocol really applies to herbicides, for both the text and the legislative history are ambiguous on this point. The State Department in 1969 took the position that the U.S., although not a party to the agreement, was “pledged to observe strictly the principles and objectives of the protocol,” but that chemical anti-plant agents like those used domestically in many countries, unlike living organisms causing plant diseases, were not prohibited by the protocol. Moreover, even if the protocol is held to outlaw herbicides, it is not at all clear that the use of such weapons has been absorbed in customary law. The fact that little resort has so far been made to them is not in itself decisive. The international lawyers Ann van Wynen Thomas and A.J. Thomas, Jr., therefore conclude: “The split of authority among reputable international jurists makes evidence of the existence of a customary rule doubtful, and, if it is in existence, evidence of its extent equivocal.”
On November 25, 1969, President Nixon renounced the first use of lethal or incapacitating chemical agents and of all methods of biological warfare. The renunciation did not include herbicides. A treaty prohibiting the development, production, and stockpiling of bacteriological (biological) weapons was signed on April 10, 1972 in Washington, Moscow, and London, and was submitted to the Senate for approval in August of that year. But the Senate Foreign Relations Committee delayed action, because it sought first a resolution of the riot-control and herbicide questions involved in the Geneva protocol. By 1974, the Ford administration was prepared to yield on these two issues and agreed to renounce the first use of herbicides in war except for control of vegetation within U.S. bases and installations or around their immediate defensive perimeters. Any use of herbicides in war would have to be approved by the President. Executive Order 11850, issued April 8, 1975, made this renunciation of the first use of herbicides in war national policy. Thus, even though defoliation and crop destruction as practiced in Vietnam did not violate the laws of war, they have now been ruled out as acceptable military tactics by the United States.
Counterinsurgency: The Phoenix and Emergency-Detention Programs
Among the important measures introduced by the new pacification program that began in 1967 was a stepped-up attack on the Vietcong Infrastructure (VCI) in the villages. This was the apparatus—made up of Communist-party, National Liberation Front (NLF), and (after 1969) Provisional Revolutionary Government (PRG) cadres—which directed the insurgency against the government of South Vietnam. Its members engaged in acts of terrorism, extortion, sabotage, and abduction; they also contributed to the enemy’s military operations by recruiting soldiers and collecting taxes and intelligence as well as by providing guides, food, clothing, weapons, medical supplies, and logistical support. As long as this clandestine organization maintained its strength amid the rural population, the victories scored by the allies in the war against Vietcong and North Vietnamese main-force units were in large part irrelevant. The belated realization of the importance of destroying this politico-military apparatus led to the establishment of the Phuong Hoang (Phoenix) program.
In a war not short on misconceptions, misinformation, and deception, the Phoenix program ranks high as a focus of misunderstanding. Despite repeated attempts by American officials to explain its purpose and mode of operation to both the Congress and the American public, the explanations somehow never managed to catch up with sensationalist media reports and the barrage of accusations made by the critics of American policy in Vietnam who called Phoenix an assassination program and an example of the moral depravity of the American involvement. In evaluating these charges, it should be borne in mind that since in the eyes of many of these critics the VC were revolutionaries and fighters for national liberation, the insurgents’ use of terror was regarded as a necessary and legitimate tactic, while any concerted action against the VC apparatus became, almost by definition, illegitimate and immoral.
The aim of the Phoenix program was to improve the collection of information about the VCI, to identify its members, and to conduct operations leading to their apprehension. It was a Vietnamese program for which, as in the case of all war-related programs mounted by the government of South Vietnam, the U.S. provided advice and financial assistance. Its origin can be traced to the CIA-directed Intelligence Coordination and Exploitation (ICEX) advisory program of 1967, which sought to bring all military and civilian agencies concerned with intelligence into alignment. On July 1, 1968, the South Vietnamese accepted formal responsibility for this program, which was now named Phuong Hoang (translated Phoenix). After January 1, 1969, CIA responsibility was gradually phased out and on July 1, 1969, the program was put under the advisory function of CORDS (Civil Operations and Revolutionary Development Support), the agency within the American command coordinating the pacification effort. By 1971, Phoenix had about 600 American military and 40-50 civilian advisers. Most of them served in the District Intelligence and Operation Centers which supervised the collection of information on individual members of the VCI and planned operations against those identified as Vietcong operatives by using appropriate police, military, or paramilitary forces. Those arrested were subject to trial by military courts or to an administrative-detention procedure known as an tri.
In earlier years, the pressure on the VCI had been erratic at best. Intelligence was poor, and thanks to corruption those arrested were often released quickly. “There is reason to believe,” concluded a CORDS study in December 1967, “that any individual possessing a sufficient amount of cash can purchase his freedom at any level of the penal system in Vietnam.” The new procedures sought to improve the accuracy of information about the VCI and to achieve a more effective and consistent handling of Vietcong suspects. The word “neutralize” was applied to the overall goal of destroying the VCI—whether its members were captured or were killed or defected.
The charge that Phoenix was an assassination program arose because reports always included a considerable number listed as killed. When administration spokesmen explained that these were killed in the course of normal military operations, or police actions, or in fighting off arrest with the use of armed force, their explanations were met with considerable skepticism. The administration could have strengthened its position by introducing other available data on the Phoenix program which showed, for example, that during the 15 months from January 1970 to March 1971 less than 6 per cent of those killed were killed as a result of special targeting. The vast majority of VCI killed (9,827 of 10,443) were killed in the course of operations, many of which were not even initiated by government forces, and were only later identified as VCI. The fact that so few of those killed were on the Phoenix target list certainly undermines the charge that Phoenix was a program of planned assassinations. But for the administration to introduce these data would also have demonstrated the weakness of the entire program: relatively few operations were targeted against known members of the VCI because despite a large, organized intelligence effort, the identity and/or whereabouts of most of these men were just not known. The full story, consequently, was withheld, and the result was a further widening of the “credibility gap.”
Individuals found to belong or suspected of belonging to the VCI—seized by the police, territorial forces, or in allied military operations—were either tried by military courts or were subject to emergency detention (an tri). The need for such an administrative procedure arose from the desire not to have to produce valuable intelligence agents in open court and from the difficulty of obtaining sufficient evidence or finding witnesses who would dare to testify against Vietcong cadres. These problems are encountered in many countries having to deal with terrorist organizations, and the establishment of an administrative emergency-detention program is not unique to Vietnam. Wartime emergencies, moreover, often require protective measures unprovided for in normal peacetime legal procedures; here, too, there are many historical precedents, including in the United States.
In view of the fact that emergency detention generally involves the treatment of civilian persons by their own government, such programs are not regulated by international law. The Geneva Convention for the Protection of Civilian Persons in Time of War applies to persons who “find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” Hence South Vietnamese civilians detained by the government of South Vietnam were not “protected persons” within the meaning of this convention. The convention also does not apply to persons who are citizens of a co-belligerent state (as was South Vietnam in regard to the U.S.) if the state holding them has normal diplomatic relations with their own government. This means that South Vietnamese civilians, captured or detained by U.S. forces, were similarly not covered by the Geneva convention on civilians. (Captured members of the Vietcong main or local forces were considered prisoners of war and were not subject to the Phoenix or an tri programs.)
None of the specific provisions of the 1949 Geneva conventions is applicable to terrorists except that such persons, like all individuals not considered “protected persons,” are to be treated humanely—ruling out, presumably, such punishments as shooting without trial. With regard to the VCI, both the Americans and the South Vietnamese accepted as binding Article 3, common to the four Geneva conventions, which prescribes minimum standards of humanitarian treatment to be extended to all individuals not considered “protected persons” within the terms of the conventions. Article 3 prohibits “the passing of sentences . . . without previous judgment by a regularly constituted court,” but this provision is generally held to apply only to sentencing for crimes and does not prohibit emergency detention without formal trial as practiced since World War II in Malaya, Kenya, Northern Ireland, and Vietnam. Article 23(b) of the Fourth Hague Convention makes it illegal “to kill or wound treacherously individuals belonging to the hostile nation or army,” and this provision has been construed as ruling out assassinations or putting a price on the head of enemy individuals. But the Phoenix program neither involved “individuals belonging to the hostile nation or army” nor did it constitute a program of planned assassinations.
By 1972-73, the an tri procedure had become a favorite target of Hanoi’s sympathizers. The United States was held at least indirectly responsible for it, and it was also cited as proof of the repressive character of the Thieu regime. But if emergency detention in and of itself is not necessarily an unacceptable violation of individual liberty, it is also necessary to reject the allegation that the South Vietnamese government imprisoned hundreds of thousands of political prisoners. This charge had its origin in Hanoi. On January 18, 1971 the Vietnam Courier in Hanoi asserted that South Vietnamese prisoners held over 200,000 South Vietnamese patriots who were dying a slow death there. In the summer of 1973, a Paris-educated Redemptorist priest in Saigon, Father Chan Tin, charged in a mimeographed handout that as of June 1, 1973 the South Vietnamese government was detaining 202,000 prisoners. Chan Tin said that he headed an organization called the Committee to Investigate Mistreatment of Political Prisoners. Western newsmen and Americans visiting Vietnam reported him to be a man deeply concerned with human suffering. In September 1973, some of Hanoi’s friends in Washington, operating the Indochina Resource Center, presented Chan Tin’s charges and figures to a congressional committee, where they appeared to make an impression. After the fall of Saigon in 1975, it turned out that Chan Tin and several other Catholic priests had been part of the Vietcong underground in Saigon. “They presented themselves as exponents of the Third Force,” writes a well-informed European journalist with left-wing political leanings, Tiziano Terzani, who stayed in Saigon after the Communist takeover, “but in reality they were part of an operation whose purpose was to back up the struggle of the National Liberation Front.”
Chan Tin’s figure of 202,000 political prisoners was checked in two exhaustive investigations by American embassy officials in Saigon and was found to exceed by far the total prison and detention population in South Vietnam, which in the July-August 1973 period was around 35,000. This figure included all common criminals as well as all an tri detainees. The American surveys were based on statistics supplied by the Saigon government to the approximately 200 CORDS public-safety advisers, who were in a good position to check their trustworthiness, as well as on South Vietnamese records meant for internal use, i.e., what the government in Saigon was telling itself on this subject. The broad accuracy of the embassy figures was confirmed after the fall of Saigon. For example, Terzani reports that 7,000 prisoners were freed from the Chi Hoa prison in Saigon; the embassy survey in 1973 had given the number of prisoners there as 7,911.
But the most serious flaw in Chan Tin’s charges was his use of the term “political prisoner” applied indiscriminately to all an tri detainees. The an tri net at times caught innocents, seized to extort a bribe, or anti-Communist oppositionists to Thieu’s autocratic rule, but to maintain that all detainees were political prisoners surely was to take unacceptable liberties with the meaning of this term. The friendly neighborhood Communist who planted bombs under civilian buses or assassinated teachers and hamlet chiefs was no more a “political prisoner” when apprehended than Lee Harvey Oswald or Sirhan Sirhan.
The naiveté with which many Americans approached the entire problem was exemplified by the support extended in this country to one of the best-known “political prisoners,” Huynh Tan Mam. Supposedly a pacifist and neutralist, he repeatedly participated in and led demonstrations in Saigon protesting the government’s war policy and U.S. involvement in Southeast Asia, for which actions he was arrested many times. The Vietnam Courier in Hanoi reported happily on February 13, 1971, for example, that at a demonstration held on February 9, a day after the incursion into Laos, “a military vehicle was burned in front of the U.S. embassy” and Huynh Tan Mam denounced the collusion of Thieu and Nixon who were “sending South Vietnamese youth to a senseless death in Laos in place of GI’s to the only interests of the U.S. imperialists.” It is possible to argue that on the whole the Saigon government could have been more tolerant of political dissent, but it is difficult to deny that leading street demonstrations accompanied by violence constitutes an overt act which a country at war fighting for its life may be legitimately unwilling to allow. On May 1, 1975, a day after the fall of Saigon, Huynh Tan Mam was honored and rewarded for his services to the Communist cause. At the beginning of the first TV broadcast from Saigon celebrating the “liberation” of the capital, the playing of the NLF anthem was followed by a speech by Huynh Tan Mam, with the screen showing a portrait of Ho Chi Minh.
Detention as a VC suspect under the an tri procedure, and life in South Vietnamese jails generally, were obviously no picnic. As is the case in most developing nations, the guards were poorly paid and were not paragons of enlightened correctional practice. American financial assistance and American advisers, in the face of heavy odds, gradually improved prison conditions somewhat. Housing, sanitation, medical care, and food were upgraded, and the death rate was reduced substantially. Given all this, it is unlikely that the termination of all public-safety programs in South Vietnam, mandated by Congress in 1973, contributed to the well-being of the inmates of the South Vietnamese correctional system. But Congress was impressed by the horror stories about political prisoners in South Vietnam and was anxious to liquidate all remnants of the American involvement.
Another dubious tale that influenced Congress was that of the prisoners allegedly paralyzed in the “tiger cages” of Con Son. This began with the charge that the South Vietnamese government at its Con Son island prison, a former French penal colony, kept inmates in underground cells which were fit only for caged animals. Congressmen William Anderson and August Hawkins, accompanied by staff aide Thomas Harkin and Don Luce of the World Council of Churches, who came upon these cells during an inspection tour of the prison in July 1970, did not in fact report that they were below ground. But use of the term “pits” by Harkin and the publication of his photographs in Life magazine, taken looking down into the cells, created the impression of subterranean, tiny, dark dungeons. The imaginations of other writers soon enlarged upon this initial report. “The tiger cages,” wrote Alfred Hassler, director of the Fellowship of Reconciliation, in 1970, “are too short for even the small Vietnamese to lie full-length in them, and the ceilings are so low that the inmates can barely stand.” In 1973, Sylvan Fox described them in the New York Times as “small concrete trenches with bars on top, in which five to seven prisoners were cramped in a space about 5 feet wide, 6 feet long, and 6 feet deep.”
In point of fact, the 48 cells were entirely above ground, they had ordinary doors in front, and they measured 6 feet 3 inches in width, 10 feet 6 inches in length, and 10 feet in height. Built by the French in 1941 as punishment cells for unruly prisoners, in 1970 they were still being used for this purpose, usually five prisoners to a cell. This gave each prisoner about 131/8 square feet of floor space. The distance of 10 feet from the floor to the ceiling bars would have accommodated a standing human giant, and the length of 10 feet 6 inches would have enabled him to stretch out as well.
The prisoners in the tiger cages, reported the visiting Congressmen and Don Luce, were unable to stand up and claimed to be paralyzed. “Until a few days ago, they said they had been shackled to a bar that went across one end of the cage. . . . ‘We will be shackled again in a few days, ’ one said as he crawled around the cage using his hands to move himself. One of the prisoners pointed to the scars on his useless legs and said, ‘We were shackled here for months.’ ”
The facts again were somewhat different. The prisoners were shackled between the hours of 5 P.M. and 6 A.M. because the doors to the old cells were no longer strong enough to withstand pressure. As to the claimed paralysis, there is evidence to indicate that this condition was simulated as part of a propaganda scheme. Thus on December 22, 1970, and on January 5-6, 1971, three military neurologists examined 116 of the prisoners who complained of paralysis of the legs. They reported: “All patients had normal musculature without atrophy or fasciculation. . . . All patients had normal ankle and knee deep-tendon reflexes with no pathological reflexes. . . . In addition, patients who complained of total paralysis were observed to move the legs when asked to roll over, slide back on the examination table, or remove clothing.” The three physicians concluded: “There is no objective evidence of organic neurological disease at this time.” All of these prisoners were offered therapy for their condition; all refused.
The conflict in Vietnam was a guerrilla war without fronts—a setting especially conducive to atrocities. In such a setting, frustration and anxiety run high, and these give rise in turn to aggressive behavior. This certainly was the experience of American servicemen in Vietnam. Troops would tramp for days in tropical heat through swamps and rice paddies, wade through streams and canals, climb hills and fight dense jungle growth—all without making contact with the evasive foe. Meanwhile, they suffered the deadly depredations of enemy activity—ambushes, snipers, mines, and booby traps. Buddies were killed and maimed, yet there was no enemy in sight on whom to avenge these losses. People who seemed to be civilians were actually combatants; women and children tossed grenades or planted traps. Gradually the entire Vietnamese population became an object of fear and hatred. As a Marine lieutenant told an American doctor: “You walk through the fucking bush for three days and nights without sleep. Watch your men, your buddies, your goddamn kids get booby trapped. Blown apart. Get thrown six feet in the air by a trap laid by an old lady and come down with no legs.” Eventually, he said, a soldier concludes that the only thing to do is to “kill them all.”
The extent of atrocities committed by American soldiers cannot be established with any precision. Between January 1965 and March 1973, 201 Army personnel in Vietnam were convicted by court-martial of serious offenses against Vietnamese; and during the period from March 1965 to August 1971, 77 Marines were convicted of serious crimes against Vietnamese. These figures encompass both civilian crimes, such as traffic incidents resulting in death or the killing of a bar-girl in Saigon, and offenses connected with military operations—the kinds of crimes usually referred to as atrocities or war crimes.
In 1967, a President’s commission concluded that about twice as many major crimes are committed in America as are known to the police; similar conclusions have been reached in other countries. There is no reason to assume that the situation was very different with regard to military personnel in Vietnam. Despite many directives requiring the reporting of war crimes and acts causing death, injury, or property damage to non-combatants, it is likely that many such incidents remained unreported.
This does not, however, mean that large-scale massacres of civilians such as the one that occurred at My Lai were common. On the contrary, in view of the openness of the fighting in South Vietnam and the encouragement which the My Lai affair gave to other servicemen to come forward with reports of atrocities, it is highly unlikely that anything like the My Lai massacre did escape detection. Villagers were regularly killed in combat assaults on defended hamlets, but the cold-blooded rounding up and shooting of civilians was an unusual event. The “reported reaction of some of the soldiers at Son My,”1 writes Telford Taylor, formerly chief counsel for the prosecution at the Nuremberg trials, “strongly indicates that they regarded it as out of the ordinary.” Even Daniel Ellsberg, not known for his reticence in criticizing American actions in Vietnam, rejects the idea that incidents like My Lai happened all the time. “My Lai was beyond the bounds of permissible behavior, and that is recognizable by virtually every soldier in Vietnam. They know it was wrong. . . . The men who were at My Lai knew there were aspects out of the ordinary. That is why they tried to hide the event, talked about it to no one, discussed it very little even among themselves.”
Attempts to develop an accurate picture of the conduct of American troops in Vietnam have not been helped by the sensationalist accounts found in many segments of the media and the generally unsubstantiated charges spread by what I have called the war-crimes industry. The Russell tribunal acted as accuser, juror, and judge all at once; American guilt was assumed from the start. The tribunal, as Bertrand Russell put it, was convened “in order to expose . . . barbarous crimes . . . reported daily from Vietnam.” At other proceedings staged in the U.S., standards of evidence, decorum, and impartiality were no higher.
In early 1970, for example, three young American antiwar activists, including a West Point graduate disillusioned after service in Vietnam, dubbed themselves the National Committee for a Citizens’ Commission of Inquiry on U.S. War Crimes in Vietnam (CCI) and organized a series of hearings in various locations across the country at which veterans testified about their personal experiences. In December 1970, they convened a large hearing, lasting three days, in the nation’s capital.
Some forty veterans testified in Washington from December 1-3, 1970. Among them, and making his first public appearance, was a former military intelligence officer, Kenneth Barton Osborn, an alleged CIA operative, whom one sympathetic reporter called the inquiry’s uncontested superstar. Osborn testified to instances of torture, but he refused to give names of the individuals involved on the ground that he had signed an agreement with the CIA not to reveal the specifics of secret operations. Such agreements, he explained, “are an attempt on the organization’s part to cover their ass,” but he had decided to adhere to the one he himself had signed “to avoid endangering intelligence operatives who are still active.” Several years later, Osborn became an official of the Organizing Committee for a Fifth Estate, the publisher of the magazine Counterspy, which freely and frequently exposes CIA operatives. In 1970 he had another reason for not revealing names: “There’s no reason to identify them. The thing to do is to attack the thing at its source, which is at the policy-making level.” This was in line with the official position of the CCI which, as one of its spokesmen stated at the end of the Washington hearing, sought to show “that war crimes are a way of life in Vietnam; and that they are a logical consequence of our war policies.”
The refusal to name names, and thus provide the kind of concrete information that would make possible an official investigation of charges, led at the time to sharp questioning of witnesses by correspondents covering the hearing. For instance, Michael McCusker of the First Marine Division declined to give the name of the commanding officer (CO) of one of the battalions allegedly involved in an atrocity. “The reason for not giving any particular names is once again we’re going to lay it back on individuals. And the whole thing for this investigation is to take it away from individuals and not lay the blame back on them and make it as if it were isolated.” This led a correspondent to ask: “You’re absolving the CO of the battalion as just doing his duty, under standing orders, are you?” McCusker replied: “I’m absolving him as, in essence, the same way I’m absolving myself. That he was just as much a victim of the rigid structure in which he was involved. . . . And he was under orders as I was under orders. And I felt a great sense of powerlessness.”
Another time, a spokesman for the inquiry put it this way: “We’re not trying to find out who’s guilty on an individual basis. If we did that we’d probably have to draw up a list with 2,500,000 names on it. What we’re trying to do is find the responsibility for these actions and we say that the responsibility is at the highest levels of planning. That these tactical field policies emanate from these highest levels of planning and create a strain, a type of atmosphere in Vietnam, where these type of actions have to occur on a very frequent basis.” That also meant, as an organizer of the CCI argued, that the trial of Lieutenant Calley had to be stopped. “The attempt, I suppose, is basically to . . . take the monkey off the individual’s back, take if off Calley’s back, and put it a step higher—let the generals do what they will with the monkey once it’s on their back.”
It may well be that certain “tactical field policies,” such as the stress on body count, created an atmosphere conducive to atrocities. Yet despite the pressure for a high enemy casualty toll, most soldiers in Vietnam did not kill prisoners or intentionally shoot unarmed villagers. Such violations of the law of war were committed by individuals acting against existing policy. With the exception of rare cases—themselves subject to legal prosecution—no orders were issued to commit atrocities; and when the plea of superior orders was introduced, as in the Calley case, courts-martial rejected it as a defense for the commission of war crimes.
Like other critics of the American command in Vietnam, the CCI erroneously assumed that the rules of engagement governing combat, with which it was not familiar, were in violation of applicable international law (of which it knew even less), and that individual atrocities therefore were committed in execution of standing orders. This charge is without foundation. Telford Taylor, a critic of many facets of U.S. Vietnam policy, has called the rules of engagement issued by the American command in Vietnam “virtually impeccable.” So impeccable were they, indeed, as measured by their encouragement of restraint, that Senator Goldwater, when he obtained several of these directives in 1975, exclaimed in anger: “It is absolutely unbelievable that any Secretary of Defense would ever place such restrictions on our forces. It is unbelievable that any President would have allowed this to happen. . . . I am ashamed of my country . . . for such restrictions to have been placed upon men who were trained to fight. . . .”
The demand that men like Calley should be freed and that no other individual soldiers or officers be brought to trial in effect was a demand that nobody be held responsible for atrocities. It amounted to a repudiation of individual responsibility not unlike that made with regard to the German people after World War II. Yet while collective guilt, like the notion of original sin, may have a place in theology, it is no part of Anglo-American jurisprudence. If all are guilty, then in effect nobody is guilty—perhaps this was indeed the point which veterans relating tales of atrocities wanted to make. To cite again the candid acknowledgment of Michael McCusker: “I’m absolving him [the CO] as, in essence, the same way I’m absolving myself.” Another veteran testifying to atrocities admitted that it was less difficult to live with such killings if one could convince oneself that one had been programmed to act in this way. “You know, maybe it wasn’t ‘GI Joe’ who pulled the trigger to kill the baby, but in some very real way, it’s the military who has made ‘GI Joe’ what he was then, who—quite obviously I think we all believe here—bear the responsibility for the act, if not the actual guilt itself.”
The truth is that some individuals, under pressure and sometimes provocation, committed atrocities, while the vast majority successfully resisted such pressure and provocation. Rather than face up to the harsh fact of individual moral failure, some found it easier to place “the monkey” on the backs of the generals.
Another organization active in airing charges of American atrocities in Vietnam was the Vietnam Veterans Against the War (VVAW), which was founded in 1967 and by 1970 was said to have 600 members. From January 31 to February 2, 1971, the VVAW, with financial backing from the actress Jane Fonda, convened a hearing on American atrocities in Vietnam, known as the Winter Soldier Investigation in the city of Detroit. More than 100 veterans and 16 civilians testified at this hearing about “war crimes which they either committed or witnessed”; some had given similar testimony at the CCI inquiry in Washington. The allegations included using prisoners for target practice and subjecting them to a variety of grisly tortures to extract information, cutting off the ears of dead VC’s, throwing VC suspects out of helicopters, burning villages, gang-raping women, packing the vagina of a North Vietnamese nurse with grease, and the like.
Among the persons assisting the VVAW in organizing and preparing this hearing was Mark Lane, author of Conversations with Americans, a collection of interviews with Vietnam veterans about war crimes. In a highly critical review of Conversations with Americans, Neil Sheehan of the New York Times— himself a sharp critic of American policy—was able to show that some of Lane’s “witnesses” had never even served in Vietnam while others had not been in the combat situations they described in horrid detail. To prevent the Detroit hearings from being tainted by such irregularities, all the veterans testifying there fully identified the units in which they had served and provided geographical descriptions of where the alleged atrocities had taken place.
Yet the appearance of exactitude was deceptive. Senator Mark O. Hatfield of Oregon, impressed with the charges made by the veterans, inserted the transcript of the Detroit hearing into the Congressional Record. Furthermore, he asked the commandant of the Marine Corps to investigate the numerous allegations of wrongdoing made against the Marines in particular. The results of this investigation, carried out by the Naval Investigation Service, are interesting and revealing. Many of the veterans, though assured that they would not be questioned about atrocities they might have committed personally, refused to be interviewed. One of the active members of the VVAW told investigators that the leadership had directed the entire membership not to cooperate with military authorities. A black Marine, who agreed to be interviewed, called the Vietnam war “one huge atrocity” and “a racist plot,” but was unable to provide details of the outrages he had described at the hearing. He admitted that the question of atrocities had not occurred to him while he was in Vietnam and that he had been assisted in the preparation of his testimony by a member of the Nation of Islam. But the most damaging finding consisted of the sworn statements of several veterans, corroborated by witnesses, that they had in fact not attended the hearing in Detroit. One of them had never been to Detroit in his life.
Incidents similar to some of those described at the VVAW hearing undoubtedly did occur. We know that prisoners were tortured, corpses were mutilated, and hamlets destroyed. Yet these incidents either (as in the destruction of hamlets) did not violate the law of war or took place in breach of existing regulations. In either case, they were not part of a “criminal policy.” The VVAW’s use of fake witnesses, and the failure to cooperate with military authorities and to provide crucial details of the incidents, further cast serious doubt on its professed desire to serve the causes of justice and humanity. It is more likely that this inquiry, like others earlier and later, had primarily political motives and goals.
In the absence of corroborating evidence, the atrocity stories told by some Vietnam veterans should have been treated by the media with far more circumspection than they in fact were. But the tendency on the part of all too many reporters and editors was to see the war in Vietnam as an atrocity writ large, and specific incidents reported were therefore widely accepted as true. Some allegations were repeated so many times that they seemed to supply their own confirmation.
One such story was that of prisoners being pushed out of helicopters in order to scare others into talking. It is, of course, possible that some American interrogators engaged in this criminal practice, but not a single instance has been confirmed. We do know of at least one case where such an occurrence was staged with the use of a dead body. The Army’s Criminal Investigation Division (CID) identified the soldier who had taken the photograph; it also identified a second soldier who acquired the picture, made up the story of the interrogation, and mailed it and the photograph to his girlfriend. She in turn gave them to her brother, who informed the Chicago Sun Times. On November 29-30, 1969, the picture and the story appeared in the Chicago Sun Times and the Washington Post and generated wide media interest. The lengthy investigation by the CID established that a dead North Vietnamese soldier had been picked up on February 15, 1969, after an operation in Gia Dinh province, and adduced other details of how the picture had been posed. The commander of the helicopter in question was reprimanded; the two crew members who had pushed the body out of the aircraft had already been discharged and therefore were beyond the Army’s disciplinary jurisdiction. The professional manner in which the CID and the services’ legal officers generally carried out their investigative and prosecutory mandate supports the credibility of the official Army account of this episode.
Reporters at times were so anxious to obtain pictorial proof of war crimes they had heard about that on at least one occasion they themselves actually incited the commission of atrocities. On October 9, 1967, the CBS evening news showed a young American soldier cutting off the ear of a dead VC soldier as a souvenir of battle. An investigation disclosed that the soldier and another man in the same unit had acted on a “dare” after being offered a knife by a CBS cameraman, who then filmed the sequence. The two soldiers were tried by special court-martial and convicted of conduct to the prejudice of good order and discipline and were sentenced to a reduction in grade and a fine. CBS News was informed of how the incident had been provoked, but refused to run a correction.
The Bombing of North Vietnam
Air warfare is not regulated by an authoritative body of law in the same manner that land warfare is by the Hague and Geneva conventions. In 1923, a commission of jurists produced a code of rules, known as the Hague Air Warfare Rules, but it was never ratified and indeed was disregarded by all sides in World War II. The 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict sets certain implicit limits to aerial bombardment. In 1972, a conference of experts convened by the International Committee of the Red Cross (ICRC) proposed a protocol on air warfare which, while not formally ratified so far, appears to have wide support and today can probably be considered declaratory of international customary law.
According to this draft protocol, aerial attacks are to be limited to military objectives, defined as “objectives which, by their nature or use, contribute effectively and directly to the military effort of the adversary, or which are of a generally recognized military interest. . . .” According to the commentary on this draft, military objectives include airfields, railway lines, and roads “which are of fundamental military importance,” as well as “industries of fundamental importance for the conduct of the war” or installations providing energy “mainly for military consumption.” The key factor in defining a military objective is whether it makes an effective contribution to the war effort. The reasonable proportionality which must exist between the damage caused and the military gain produced, writes a French jurist, “constitutes the essential criterion of the legality of bombing directed against targets not having a purely military character.”
The ICRC draft protocol forbids direct attacks upon the civilian population, in particular morale bombing and terrorization attacks of the kind that took place in World War II. However, “civilians who are within a military objective run the risks consequent upon any attack launched against this objective.” In other words, it is recognized that in the course of attacks on military objectives, the civilian population may suffer incidental death or injury and that their property may be destroyed. Such casualties and damage do not violate international law if they are not disproportionate to the military advantage gained. The draft protocol also rejects the use of the civilian population as a shield: “The civilian population or individual civilians shall never be used in an attempt to shield, by their presence, military objectives from attack.” The cities of an adversary do not gain immunity from attack because he has had the shrewdness to locate his military supply depots or missile sites there.
Among the legal authorities there is general agreement that the presence of a military force, either in occupation or passing through, deprives an objective of its status as an undefended place. By the same logic, any objective defended by antiaircraft guns or missiles is no longer an undefended place and becomes a legitimate military target. Even hospitals lose their immunity if they are used for acts harmful to the enemy. In certain circumstances it may also be permissible to bomb an entire area. According to the international lawyer Morris Greenspan, legal justification for such attacks will depend on two factors: “The first must be the fact that the area is so preponderantly used for war industry as to impress that character on the whole of the neighborhood, making it essentially an indivisible whole. The second factor must be that the area is so heavily defended from air attack that the selection of specific targets within the area is impracticable.”
If we apply these customary rules of air warfare to the American bombing of North Vietnam during the years 1965 to 1968, code-named Rolling Thunder, it appears that the conduct of the U.S. easily passes muster. “Given the state of aerial warfare to which we were brought by World War II,” writes Telford Taylor, “I can see no sufficient basis for war-crimes charges based on the bombing of North Vietnam. Whatever the laws of war in this field ought to be, certainly Nuremberg furnishes no basis for these accusations.” Indeed, it is clear that the American bombing of North Vietnam during Rolling Thunder was decisively more discriminating than the Allied bombardment of Germany and Japan in World War II. In Vietnam there was no bombing directed at the civilian population as such, and attacks either on fixed targets or by armed reconnaissance in fact conformed to the rather strict definition of “military objective” proposed by the ICRC in 1972.
Most of the charges of criminal conduct on closer examination turn out to involve collateral damage, which generally appears not to have been disproportionate to the military advantage gained or sought by the destruction of the military objective nearby. The town of Thanh Hoa, for example, which originally had 50-60,000 inhabitants, by 1966 had suffered extensive damage and was half-deserted. However, Thanh Hoa served as an important transshipment link in the route to the South. The town was also located three miles south of the Ham Rung (Dragon’s Jaw) Bridge spanning the Song Ma River, a vital link in the North Vietnamese transportation system. The bridge was heavily defended, and American planes, despite repeated attacks during Rolling Thunder, failed to destroy it. It was finally felled by several “smart” bombs in 1972. The damage suffered by the town of Thanh Hoa and by a hospital situated there was obviously a result of the location of the town, in particular its closeness to this important bridge.
Damage inflicted on the Hoan Kiem quarter on the outskirts of Hanoi was related to attacks on the nearby Long Bien (Paul Doumer) Bridge over the Red River, a crucial railroad link with China and the port of Haiphong. Harrison E. Salisbury, the then assistant managing editor of the New York Times, who spent two weeks in North Vietnam during late 1966 and early 1967, called this bridge—5,532 feet long and consisting of 19 spans—“in all probability the single most important military objective in North Vietnam. Without the bridge the movement of traffic from north to south would be radically impeded.” The heavily defended bridge was attacked successfully several times in 1966 and 1967. As of January 1967, 52 houses on Nguyen Thiep Street, about 150 yards from the approaches to the bridge, were said to have been destroyed, and 54 people were said to have been killed in these attacks. But neither the Long Bien Bridge nor the adjacent area nor, indeed, the city of Hanoi itself could insist on exemption from attack. Reporter David Schoenbrun, who visited Hanoi and toured the surrounding countryside in the summer of 1967, wrote: “Hanoi looks like an armed porcupine, with hundreds, probably thousands, of spiny steel gun snouts sticking out beyond the tops of trees.”
Collateral damage appears to account also for the few confirmed cases of hits on dikes. In January 1966, Assistant Secretary of Defense John McNaughton proposed for consideration attacks on locks and dams in order to cause Hooding that could lead to widespread starvation “unless food is provided—which we could offer to do ‘at the conference table.’ ” Successful attacks on irrigation dams and reservoirs had been carried out in the closing days of the Korean war, but this time the idea never even got to the drawing board. Eight of North Vietnam’s 94 major locks and dams were on the target list, but only 2 were approved for strikes and actually hit. In view of the extensive bombing of inland waterways, it is not surprising that here and there incidental damage was done to the dikes and locks connected with them. But certainly, if the U.S. had decided to bomb the dikes, the results would have been far more telling, and there would have been extensive flood damage.
The Communist propaganda onslaught against the bombing of North Vietnam was massive and ceaseless, and after a while many in the West began to accept even some of the more preposterous allegations. For example, witnesses before the Russell International War Crimes Tribunal in May 1967 charged that American flyers systematically and intentionally bombed North Vietnamese medical facilities. Hospitals, it was stated, “are shown on the maps of targets in the hands of U.S. pilots who have been shot down. . . .” (emphasis added). This testimony, of course, lends itself to a different interpretation: that hospitals were marked in order to avoid hitting them. To prevent such a construction, the U.S. Committee of Concerned Asian Scholars reported the testimony in this way: “Maps with hospitals marked as targets on them have been found in the possession of U.S. pilots shot down over North Vietnam” (emphasis added).
One member of an investigating team sent to North Vietnam by the Russell tribunal, a Scottish professor, was bothered by the question of intent. He told Harrison E. Salisbury: “It is easy enough to report that there has been enormous destruction of civilian property and non-military objectives. Anyone who travels in North Vietnam can see this. But is it intentional? This is the difficult question. How can we read the mind of the pilot who dropped the bombs or loosed the rockets? How can we know, for certain, what his orders were? How can we know from the ground what the airman high in the sky really thought he was doing?” But the tribunal preferred to ignore such scruples and did not call the professor as a witness. On May 10, 1967, it concluded unanimously that “the government and armed forces of the United States are guilty of the deliberate, systematic, and large-scale bombardment of civilian targets, including civilian populations, dwellings, villages, dams, dikes, medical establishments, leper colonies, schools, churches, pagodas, historical and cultural monuments.” By subjecting the civilian population of North Vietnam to such bombing, it asserted, the U.S. had committed a war crime.
More damaging to U.S. prestige than these extreme charges was the reporting of Harrison E. Salisbury, the first American correspondent allowed into North Vietnam since the beginning of the air campaign. Salisbury’s widely discussed dispatches left the impression that the U.S. was willfully bombing non-military targets. Only after the articles had appeared and had received extensive attention all over the world did a small number of persons learn that Salisbury, in effect, had given the authority of his byline to unverified Communist propaganda and that the New York Times had printed this information as though Salisbury had established it himself with his own on-the-scene reporting. Two days after the first dispatch from Hanoi, a little-noticed sentence casually pointed out: “It should be noted, incidentally, that all casualty estimates and statistics in these dispatches are those of North Vietnamese officials.” When Salisbury’s articles were published in book form in April 1967, the author took pains to indicate—by the insertion of such phrases as “according to the officials” and “they said”—that many of his details were in fact not based on personal observation. But by then, the harm had been done.
On December 25, 1966, Salisbury visited Nam Dinh, located some 40 miles southwest of Hanoi and formerly North Vietnam’s third largest city, in order to inspect damage caused in earlier bombings. He was shown around by the mayor of the town who, reported Salisbury, “regards her city as essentially a cotton-and-silk textile town containing nothing of military significance. Nam Dinh has been systematically attacked by American planes since June 28, 1965. The cathedral tower looks out on block after block of utter desolation. . . . No American communiqué has asserted that Nam Dinh contains some facility that the United States regards as a military objective.” City officials attributed the bombing of their town to an attempt to intimidate the population or to the endeavor to make Nam Dinh an object lesson to Hanoi. “Whatever the explanations,” Salisbury wrote, “one can see that United States planes are dropping an enormous weight of explosives on purely civilian targets. Whatever else may be or might have been in Nam Dinh, it is the civilians who have taken the punishment. A brief tour of Namha province, in which Nam Dinh lies, shows that Nam Dinh is far from being exceptional.”
The impression created by all this was that the U.S. was deliberately and secretly bombing a harmless textile town without military targets. Yet this was hardly the whole story. Nam Dinh happened to be a major transshipment point for supplies and soldiers moving south who were coming into and through the city by river and the north-south railroad. On at least three prior occasions, American communiqués had referred to the bombing of military targets in Nam Dinh—a large railroad yard, a huge storage depot, a POL (petroleum, oil, lubricants) storage area, and a thermal power plant. The North Vietnamese apparently did not share the view of the mayor of Nam Dinh that the city had no targets of military significance. As a Pentagon statement issued in response to the Salisbury dispatches and printed in the New York Times pointed out, the city was ringed by anti-aircraft gun batteries and by surface-to-air missile (SAM) sites. The city’s three textile plants had never been targeted for attack, but, being located close to the power plant and the POL storage area, they, like residential buildings, had suffered extensive damage.
At no time did either Salisbury or the Times acknowledge that the dispatches dealing with the bombing of the city of Nam Dinh had borrowed extensively from a North Vietnamese propaganda pamphlet, Report on U.S. War Crimes in Nam Dinh City, which had appeared in October 1966. Failure to name this source is said to have cost Salisbury the Pulitzer Prize for which the Times nominated him.
The North Vietnamese have never released any cumulative civilian casualty figures. According to American estimates, 52,000 civilians were killed during the course of Rolling Thunder between 1965 and 1968. When one recalls that almost 84,000 were killed in Tokyo in 1945 in two days of bombing alone, it becomes apparent that 52,000 deaths in three years is a relatively low figure—and it was due in substantial part to the care practiced by American pilots.
Department of Defense press releases always emphasized that the bombing of North Vietnam was limited to military targets and that all possible precautions were being taken to minimize damage to civilian lives and property. As the internal record shows, this was indeed the case—so much so, in fact, that various spokesmen for the military community repeatedly protested that these protective measures were hampering the effectiveness of the bombing. For example, Secretary of the Air Force Harold Brown, in a memo of March 4, 1968, urged the lifting of restrictions on the bombing of the North “so as to permit bombing of military targets without the present scrupulous concern for collateral civilian damage and casualties.” But these requests were denied, and many pilots were shot down because the rules of engagement required approach angles and other tactics designed to reduce civilian casualties rather than to afford maximum protection to the attacking aircraft.
Nevertheless, collateral damage was inevitable for several reasons. First, until the perfection of the “smart” bomb during the last stage of the Vietnam war, which brought an unprecedented degree of precision to this type of warfare, bombing was an inherently inaccurate process. Despite sophisticated computer equipment, the precision of the bombing was degraded by errors involving boresight, release mechanisms, bomb dispersion, aiming, and the computational system. Unknown winds at altitudes below the release point further complicated the pilot’s task. All this meant that, as one Navy pilot wrote in 1969, “it is impossible to hit a small target with bombs except by sheer luck.”
Secondly, the North Vietnamese made it a practice to disperse their storage depots. Salisbury reported seeing oil drums, munitions, and all manner of hardware stacked out in fields, beside rural roads, and “cluttering up paths that led to rice paddies—indeed, in all the time I rode about the countryside I think I was never more than two or three minutes out of sight of some kind of supplies and equipment which had come to rest in the most unlikely setting.” Supplies placed in “unlikely settings,” including inhabited places, of course created the danger of attack and explain the many reports of raids by American aircraft on rural targets. Anti-aircraft batteries and SAM sites, too, as reconnaissance photos clearly show, were often located in residential areas. One pilot recalls his difficulties in hitting a railroad yard in the town of Viet Tri northwest of Hanoi because of a nearby complex of buildings off-limits as a hospital. “If it was in fact a hospital, it must have been a hospital for sick flak gunners, because every time we looked at it from a run on the railhead, it was a mass of sputtering, flashing gun barrels.” When American flyers sought to hit targets placed in the midst of villages and towns or tried to defend themselves against hostile fire coming from such places, civilian lives and property were inevitably lost.
The problem of bombing accuracy was especially acute in the case of armed-reconnaissance missions against targets of opportunity along assigned routes or in assigned areas, which constituted about 90 per cent of all sorties flown against North Vietnam. In the South, pilots flying fast jet fighter bombers had the benefit of forward air controllers (FAC’s) who marked targets with smoke bombs and guided the jets to them. Without FAC’s, strike pilots had great difficulty seeing or correctly identifying small objectives. Also, when unable to get to or find lucrative targets, pilots would often go on “hunting” for less important targets until their fuel supply was exhausted. It is possible that these secondary targets on occasion were indeed of limited military significance.
Last but not least, precision in bombing was impaired by the increasingly heavy and sophisticated air defenses of North Vietnam. The number of missiles fired at American planes went up from 200 in 1965 to 3,484 in 1967; the number of antiaircraft guns grew from 700 to 7,400 by March 1968. During Rolling Thunder, the U.S. lost 938 planes to North Vietnam’s air defenses, which military observers called the tightest installed anywhere. If there was a possibility of error even under perfect flying conditions, in a combat environment, when pilots had to dodge extremely heavy anti-aircraft fire and keep an eye on SAM’s, accuracy was even more difficult to achieve. Damage also resulted from SAM’s which fell back to earth without finding their target, for the Russian-made SAM’s, unlike American ones, did not have an automatic self-destruct mechanism. Moreover, American pilots at times had to jettison their bombs in order to be able to enter air battles with enemy jets. In situations where air defenses are intensive, writes one student of the law of air warfare, “It is usually more accurate to recognize that both attacking and defending forces in an air raid cause civilian casualties.”
Whatever the wisdom of Rolling Thunder on political and other grounds, it is reasonable to conclude that the air campaign against North Vietnam during the years 1965 to 1968 did not violate the law of war and that the extensive damage caused to civilian areas was incidental to the bombing of legitimate military targets. This was also the finding of many critics of American military policy. Telford Taylor noted that Harrison E. Salisbury’s reports had graphically described the extent of the physical damage caused by the American bombing but “fell far short of demonstrating any intent to cause civilian casualties.” James Cameron, a British journalist whom Time described as of the “ban-the-bomb breed,” wrote after a visit to North Vietnam in 1966: “It was my impression, and I am not wholly ignorant of the processes of tactical bombing, that United States attacks on North Vietnam had been, as they claimed, aimed generally at what they could define as military objectives. . . . I do not believe that the Americans set out to bomb homes and hospitals; if they had wished to do so it would have been extremely easy to do.” An American flyer, Captain Michael J. Heck, who since 1966 had participated in numerous missions against North Vietnam, and in 1972 asked for conscientious-objector status and refused to fly any more attacks on the North on the grounds that U.S. goals did not justify the destruction and killing caused, told a correspondent of the New York Times: “ I don’t think we intentionally targeted civilian targets. . . .” Non-military objectives were hit because of human error, malfunctioning of equipment, or as a result of pilots’ having to dodge missiles. But “I don’t think it was intentional.”
Offensive operations against North Vietnam ended on October 31, 1968. When the full-scale bombing of North Vietnam was resumed following the 1972 Easter invasion of South Vietnam, there were once again charges of deliberate attacks on hospitals, schools, and other civilian targets, charges that were no more substantiated than those made during Rolling Thunder. Reconnaissance photos showed bomb craters on several dikes, but these were all in close proximity to other targets of high military value; no major dike was breached or functionally damaged, and the high-water season passed without significant flooding.
A breakthrough occurred in the long-stalled peace talks in Paris when Hanoi dropped its insistence on a coalition government and the resignation of Thieu. On October 23, 1972, President Nixon, in a gesture of good will, suspended all bombing north of the 20th parallel. On October 26, Secretary of State Kissinger told a news conference that “peace is at hand.” But this announcement was premature, and by November 23 the negotiations in Paris had reached a new deadlock—the result of sloppy drafting of the text of the projected agreement, new objections from Thieu, and a withdrawal of several important concessions by Hanoi. On December 19, Nixon ordered the resumption of full-scale bombing of North Vietnam and there followed the so-called Christmas bombing—codenamed Linebacker II.
Linebacker II lasted 12 days, though the weather was clear enough for visual bombing for only 12 hours. During these 12 days there were 729 B-52 sorties and about 1,000 fighter-bomber attack sorties; 20,370 tons of bombs were dropped over all of Vietnam. A total of 26 planes were lost, including 15 B-52’s. The bombing was concentrated on targets in the Hanoi-Haiphong complexes and included transportation terminals, rail yards, warehouses, power plants, airfields, and the like. By the time the bombing was halted on December 29, North Vietnam’s electrical power supply had been crippled and extensive damage had been caused to all other targets as well. North Vietnamese air defenses had also been shattered; during the last few days, American planes roamed the skies with virtual impunity.
Thanks to the new “smart” bombs, accuracy in most cases was almost surgical, but on account of the extensive utilization of B-52 bombers there was some spillage of bomb damage to adjacent residential areas. It was estimated that in 90 per cent of all B-52 missions, one or more bombs, because of bent or damaged fins, escaped the normal bomb train and landed outside the target box. This incidental civilian damage and the overall extremely destructive impact of Linebacker II gave rise to predictable outcries of terror bombing. The December bombing, Hanoi charged, surpassed the atrocities committed by the “Hitlerite fascists” and represented an “escalation of genocide to an all-time high.” In only 12 days, “the Nixon administration wrought innumerable Oradours, Lidices, Guernicas, Coventrys. . . .” Anti-war groups in America and many others joined in the worldwide chorus of denunciation.
These charges are disproven by evidence available then and by later reports from the scene. The North Vietnamese themselves at the time claimed between 1,300 and 1,600 fatalities, and even though both Hanoi and Haiphong were partially evacuated, such a number of victims is surely not indicative of terror bombing. Attacks explicitly aimed at the morale of the population took place against Germany and Japan during World War II and killed tens of thousands. According to an East German estimate, 35,000 died in the triple raid on Dresden in February 1945; the official casualty toll of the bombing of Tokyo with incendiaries on March 9-10, 1945 stands (as already mentioned) at 83,793 dead and 40,918 wounded. The Hanoi death toll, wrote the London Economist, “ is smaller than the number of civilians killed by the North Vietnamese in their artillery bombardment of An Loc in April or the toll of refugees ambushed when trying to escape from Quang Tri at the beginning of May. That is what makes the denunciation of Mr. Nixon as another Hitler sound so unreal.” Part of the death toll was undoubtedly caused by the North Vietnamese themselves, for they launched about 1,000 SAM’s, many of which exploded in the cities of Hanoi and Haiphong and took their toll on their own people.
Among the civilian facilities hit was the Bach Mai Hospital in Hanoi. The North Vietnamese cited the extensive damage to this hospital as proof of American criminal intentions, and the charge of deliberate attacks on civilian targets was accepted as true by Dale S. DeHaan, counsel to the Kennedy committee on refugees, who visited Hanoi in March 1973, and by Senator Edward Kennedy himself. Yet other observers offered a different explanation. The hospital was located about 1,000 yards from the Bach Mai airstrip and the military barracks, which were heavily bombed. The attack, wrote Telford Taylor after visiting the site in January 1973, “was probably directed at the airfield and nearby barracks and oil-storage units.” Murray Marder of the Washington Post and Peter Ward of the Baltimore Sun concurred in this view, and aerial photographs released by the Defense Department in May 1973 further confirmed that the hospital had been hit by bombs escaping the normal bomb train.
Damage to residential areas in Hanoi and Haiphong, too, was clearly the result of gravity-drop bombs which had fallen short of the railroad sidings, warehouses, and industrial plants targeted and destroyed. Malcolm W. Browne of the New York Times was greatly surprised by the condition in which he later found Hanoi, and wrote that “the damage caused by American bombing was grossly overstated by North Vietnamese propaganda. . . .” “Hanoi has certainly been damaged,” noted Peter Ward of the Baltimore Sun on March 25, 1973 after a visit, “but evidence on the ground disproves charges of indiscriminate bombing. Several bomb loads obviously went astray into civilian residential areas, but damage there is minor, compared to the total destruction of selected targets.”
The Question of Genocide
In 1967, the second session of the Russell International War Crimes Tribunal adopted a statement on genocide that was formulated by Jean-Paul Sartre. The U.S. government, Sartre maintained, was engaged in “wiping out a whole people and imposing the Pax Americana on an uninhabited Vietnam.” In the South, specifically, American forces were conducting a “massive extermination” of the people of South Vietnam, killing men, women, and children merely because they were Vietnamese; this represented “genocide in the strictest sense.”
The Russell tribunal was not alone in charging the U.S. with genocide. The new military technology used by America in Vietnam, wrote Theodore Draper in 1967, “produces a dehumanized genocide”; American policy-makers, argued Daniel Berrigan, have, “for some time now, legitimated murder and expanded murder into genocide.” According to Frances FitzGerald, although no one in the U.S. government consciously planned a policy of genocide, in fact the policy of the military commanders “had no other military logic, and their course of action was indistinguishable from it.” The specific violations of the law of war, held Professor Richard A. Falk, may have “a cumulative impact that can fairly add up to genocide.” Scorched-earth tactics and the use of cruel weapons against the civilian population “appears to me to establish a prima facie case of genocide against the United States.”
A convention against genocide was adopted by a unanimous United Nations General Assembly on December 9, 1948; it came into force on January 12, 1951. The U.S. signed but so far has not ratified the convention; however, it probably can be assumed that the prohibition of genocide is today part of customary international law. In the convention, the crime of genocide was defined as committing, “with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group, as such,” acts such as “killing members of the group,” “causing serious bodily or mental harm,” “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part.” The prototype of genocide which inspired the convention was, of course, Hitler’s attempted extermination of the Jews of Europe, designed to bring about “the final solution” of the Jewish question.
If genocide consists of the destruction of a people in whole or in part, the first place one should look in assessing this charge is at population statistics. According to figures compiled by the United Nations, the populations of both North and South Vietnam increased steadily during and despite the war, at annual rates of change roughly double the rate of the U.S. This fact alone makes the charge of genocide a bit grotesque.
In order to establish the crime of genocide, one must also be able to demonstrate intent to destroy a certain group of people in whole or in part. With regard to North Vietnam, as I have attemped to show, the bombing never deliberately aimed at the population and therefore cannot be adduced as evidence of genocide. As for the fighting in the South, the evidence available makes it similarly absurd to argue that the U.S. at any time in the war had the intent of destroying the people of that country. Indeed, quite the contrary can easily be shown to be true.
While the American way of war undoubtedly took the lives of many noncombatants, these casualties were never inflicted as a matter of policy. The concern of the American military command with the prevention of death or damage to the civilian population led to the promulgation of rules of engagement aimed at minimizing such casualties. American advisers, too, were told to “make every effort to convince Vietnamese counterparts of the necessity for preservation of the lives and property of noncombatants. Counterparts must be encouraged to promulgate and implement parallel instruction.” In an instruction program established in 1965, newly arrived soldiers were taught that respect for civilian life was not only a matter of basic decency and legality, but was also essential for winning the “hearts and minds” of the people. The intelligence gained from a population willingly assisting in the war against the Communist insurgents, they were told, could save their own lives. It is true that until the My Lai incident, the rules of engagement were not as widely known as they should have been, and the American command can justly be faulted with failing to take all possible measures to enforce these rules. But such negligence is a far cry from having a genocidal intent to destroy the people of South Vietnam.
Moreover, American aid programs contributed substantially to the improvement of public health and the availability of medical care. Between the early 1960’s and 1972, AID provided funds for the provision of 29 surgical suites, and for the construction of more than 170 district, 370 village, and 400 hamlet maternity-dispensaries. In addition, about 15 per cent of occupied beds in American military hospitals were used by Vietnamese civilians. These measures gradually alleviated the overcrowded conditions created in the early years of the war by the load of civilian war casualties. Under contract with AID, 774 American physicians served 60-day tours of duty in a Vietnamese hospital; under the Military Provincial Health Assistance Program (MILPHAP), medical teams, each including three physicians, assisted Vietnamese provincial hospitals in the application of medical expertise; every American unit had its medical civic-action program (MEDCAP) which provided medical care in the villages and gave immunizations for polio, TB, tetanus, etc. The quality of medical care in Vietnam often left much to be desired. Yet whatever the shortcomings of the American medical-aid program, it surely does not fit into any kind of scheme to destroy the Vietnamese people.
All of this, together with the various aid programs aimed at improving the technological and economic development of South Vietnam, makes it understandable that the cumulative impact of the American presence in Vietnam was a substantial rise in the standard of living and a consequent population increase. The “good effects,” a South Vietnamese oppositionist to Thieu wrote in late 1974, “were always intentional while the ‘bad effects’ were unintentional. They were the side-effects, the byproducts of the war and the American presence.”
Detailed calculations that cannot be reproduced here lead to the conclusion that the Vietnam war, during the years of active American involvement, was no more destructive of civilian life, both North and South, than other armed conflicts of this century and a good bit less so than some, such as the Korean war. Whereas the proportion of civilians killed in Korea may have been as high as 70 per cent of the total death toll, in Vietnam it was about 45 per cent. If we bear in mind that the battle for Korea leveled practically all major population centers, while much of the most severe fighting in Vietnam took place in uninhabited jungle terrain or in sparsely populated areas, this conclusion is hardly surprising. In any case, the cost of the Vietnam war in civilian lives does not justify the allegation that the U.S. was engaged in a conflict where an unusually and unacceptably high number of noncombatants was being killed.
In sum, the American record in Vietnam is not a succession of war crimes and does not support charges of a systematic and willful violation of existing agreements for standards of human decency in time of war. Such charges, leveled by many critics of the American involvement, were based on a distorted picture of the actual battlefield situation, on ignorance of existing rules of engagement, and on a tendency to construe every mistake of judgment as a wanton breach of the law of war. Furthermore, many critics had only the most rudimentary understanding of international law and freely indulged in fanciful interpretations of conventions and treaties so as to make the American record look as bad as possible. Finally, Communist propagandists unleashed a torrent of largely unsubstantiated charges with the hope that at least some of the lies would stick. This, indeed, occurred, for many publicists, journalists, and intellectuals in the West were only too well prepared to believe the worst about the conduct of the U.S. in Vietnam.
Much that happened during the American military effort in Vietnam was legal but could be criticized on other grounds. Some of the tactics used were certainly not calculated to help in winning the “hearts and minds” of the people, and were probably a contributory cause of the ultimate collapse of South Vietnam. There is reason to believe that the suffering inflicted upon large segments of South Vietnam’s rural population during long years of high-technology warfare created a widespread feeling of resignation, war weariness, and an unwillingness to go on fighting against the resolute opponent from the North. Similarly, revulsion at the fate of thousands of hapless civilians killed and maimed by the deadly weapons of modern war undercut the willingness of America as a nation to prosecute the fight; this suggests that for a democracy, reliance upon such weapons may be counterproductive on still another level.
Insensitivity to political costs, rigidity of doctrine, and shortsighted and self-defeating tactics may lose wars, but they do not constitute war crimes or immoral conduct. Examined dispassionately, American actions in Vietnam lend no support to the accusations of criminality or of gross immorality with which America’s conduct of the war was charged at the time, and of which it is still widely assumed to be guilty. Today it is more urgent than ever that this be understood, for the simple reason that Vietnam continues to haunt our minds and continues to exert a powerful influence on our conception of ourselves as a nation and of our role in the world. The task of clearing away the cobwebs of mythology which have helped to create the national trauma over Vietnam must begin—for the sake of historical truth as much as for our own self-confidence, our moral strength, and our future capacity to act responsibly in world affairs.
Under Executive Orders 10501 and 10816 promulgated by President Eisenhower, and Executive Order 11652 issued by President Nixon on March 8, 1972, the secretaries of the military services have discretionary authority to allow access to classified defense information to qualified researchers from outside the executive department. This essay is the first analysis of the war in Vietnam to make use of these classified records of the U.S. Army, Air Force, and Marine Corps—after-action reports of military operations, command directives, field reports and staff studies of the pacification effort and the Phoenix program, intelligence reports, investigations of war crimes, and the like. Not intended for public consumption, these documents throw important new light on aspects of the war that until now have largely been kept out of public view.
1 My Lai was one of four hamlets in the village of Son My.