Soldiers of Conscience
The Nuremburg Precedent
During and after the Vietnam war, United States courts and military tribunals were asked to apply the Nuremberg Principles to the conduct of individual soldiers. The civilian judicial system washed its hands of the issue and (to use another Biblical metaphor) passed by on the other side. Military tribunals were far more forthright than their civilian counterparts in facing the problem but did not succeed in resolving the dilemma.
When David Mitchell was found guilty by the trial court and the federal court of appeals, his attorneys sought a writ of certiorari from the United States Supreme Court. The Supreme Court of the United States denied certiorari. Justice William Douglas dissented from the denial of certiorari. He stated in part that petitioner's ...defense was that the "war" in Vietnam was being conducted in violation of various treaties to which we were a signatory, especially the Treaty of London of August 8, 1945, declares that "waging of a war of aggression" is a "crime against peace," imposing "individual responsibility." Article 8 provides: "The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment...
Mr. Justice Jackson, the United States prosecutor at Nuremberg, stated: "If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."
Article VI of the Constitution states that "treaties" are a part of "the supreme law of the land; and the Judges in every State shall be bound thereby." There is a considerable body of opinion that our actions in Vietnam constitute the waging of an aggressive "war."
This case presents the questions: whether the Treaty of London is a treaty within the meaning of Article VI, cl. 2; whether the question of the waging of an aggressive "war" is in the context of this criminal prosecution a justiciable question; whether the Vietnam episode is a "war" in the sense of the Treaty; whether petitioner has standing to raise the question; whether, if he has, it may be tendered as a defense in this criminal case or in amelioration of the punishment.
These are extremely sensitive and delicate questions. But they should, I think, be answered.
In Mora et al. v. McNamara et al., three young men already drafted into military service--Dennis Mora, James Johnson, and David Samas --refused to deploy to Vietnam. They offered essentially the same defense as had David Mitchell, adding the provisions of the US Army Field Manual, The Law of Land Warfare . This time two justices of the United States Supreme Court, Justices Douglas and Potter Stewart, dissented from denial of certiorari.
Captain Howard B. Levy, M.D., also a draftee, refused to teach medicine to Green Beret soldiers at Fort Jackson, South Carolina. His too sought review by the Supreme Court of the United States. In Parker v. Levy (1974), the high court reversed a decision of the Third Circuit Court of Appeals which had held that Articles 133 and 134 of the Uniform Code of Military Justice were unconstitutionally vague and overbroad. The Supreme Court upheld the validity of the UCMJ and of Levy's court martial conviction. Justice Stewart angrily read his dissenting opinion from the bench.
Whereas the Supreme Court focused on First Amendment doctrine in relation to the UCMJ, the court martial gave much more attention to Vietnam. And in the course of a ruling on other matters, Colonel Earl Brown, the law officer, suddenly injected the possibility of a defense based on Nuremberg: "...Now the defense has intimated that special forces aidmen are being used in Vietnam in a way contrary to medical ethics. My research on the subject discloses that perhaps the Nuremberg Trials and the various post war treaties of the United States have evolved a rule that a soldier must disobey an order demanding that he commit war crimes, or genocide, or something to that nature. However, I have heard no evidence that even remotely suggests that the special forces of the United States Army have been trained to commit war crimes, and until I do, I must reject this defense."
In colloquy with the prosecutor that followed, Colonel Brown stated that if the aidmen were being "trained to commit war crimes, then I think a doctor would be morally bound to refuse" to train them.
Counsel for Dr. Levy were given one extra day to assemble witnesses to put on a Nuremberg defense. The defense found three witnesses. Donald Duncan was a former Special Forces Sergeant, who became disaffected while serving in Vietnam and resigned from the Army. Robin Moore was the author of a bestselling book, The Green Berets. Captain Peter Bourne was an Army psychiatrist who had served in Vietnam. The defense also proffered as exhibits 4,000 articles describing war crimes in Vietnam, including war crimes by the Special Forces, and a brief by Professor Richard Falk, an international law expert at Princeton, assisted by Richard Barnet of the Institute for Policy Studies. Finally, the defense submitted a list of thirty-eight witnesses to be called should Col. Brown determine that a prima facie case of Nuremberg violations had been made out.
An out-of-court hearing followed. The Law of Land Warfare prohibits assassination of enemy soldiers or civilians. Duncan and Moore described assassination by United States forces and by the Vietnamese personnel that they trained. The Law of Land Warfare prohibits "putting a price on an enemy's head," but Duncan and Moore testified that in Vietnam it was a common practice. Most riveting, it seems, was defense testimony about torture and murder of unarmed prisoners, although The Law of Land Warfare prohibits killing prisoners "even in the case of . . . commando operations."
Assessing the Nuremberg defense presented by Dr. Levy's counsel, Professor Strassfeld comments: "It could have been argued that the Geneva Conventions were largely inapplicable to South Vietnam and U.S. conduct in South Vietnam, especially as it affected civilians. However, the U.S. did not adopt that position. Application of the Nuremberg principles to Levy would arguably extend them beyond existing precedents because of his attenuated relationship to Special Forces conduct in Vietnam."
Instead of grounding the denial of the defense in one of these arguments, Brown simply ruled that Levy had failed to make a prima facie showing.
The evasion of Nuremberg by the United States Supreme Court in the Mitchell, Mora, and Levy cases continues to cast a long shadow. Military tribunals quote and rely on the high court's pronouncement in Parker v. Levy that "the military is, by necessity, a specialized society," and hence "the fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it."
However, the United States has now explicitly endorsed the doctrine of preemptive war. In a speech at the 2002 graduation exercises at West Point, President George W. Bush, remarked that for much of the last century, America's defenses had relied on the Cold War doctrines of deterrence and containment. But, the President argued, containment means nothing against "terrorist networks with no nation or citizens to defend...the war with terror will not be won on the defensive," and the United States must be prepared for "preemptive action when necessary." In September 2002, the Bush Administration promulgated a new National Security Doctrine which stated, in part, that "...we will not hesitate to act alone, if necessary, to exercise our right of self-defense by acting preemptively against such terrorists, to prevent them from doing harm against our people and our country.
This new doctrine would appear expressly to violate the condemnation of aggressive war on which the United States insisted at Nuremberg. Certainly a conviction that his country is an aggressor in violation of international law is the essence of Lt. Watada's conclusion that what he is being ordered to do is unlawful. He considers that he is not engaging in "civil disobedience" but rather obeying settled international law that Nuremburg decreed he would disregard at his peril. In his case, then, and in future cases like his, a potential or actual soldier may be entitled to refuse orders not only because they require "war crimes" or "crimes against humanity," but also because they demand obedience to a "crime against peace": aggressive war.
Someday, and would it could be tomorrow, they'll have a war in Somalia to which nobody will come. Someday the Tamal Tigers, without surrendering their vision of liberation, will find a way to pursue it without arms. Someday nobody in Fatah or Hamas will continue fratricidal war in Gaza. Someday in Colombia, and in Ecuador and Oaxaca and Bolivia and Argentina, they'll continue to create picket lines, and blockades, and occupations, but no longer go to war. My daughter had a companero from Chile. Roberto said that when he and other draftees were told to shoot at working-class demonstrators, they fired into the air. I told him I had been discharged from the Army as a subversive. He asked me, Were you tortured? Someday they'll have a war, and try to torture those who say No, and nobody will come.
And soon, very soon, when soldiers are summoned to have a war in Baghdad and Basra, or in Kabul and Kandahar, let alone Teheran, Damascus or Pyonyang, why, they may have to call off the war, because nobody will come!