The Kerrey disclosures have surfaced an array of both laudable and lamentable sentiments, but perhaps none worse than those associated with William Safire’s April 30 tirade directed at the so-called Vietnam Syndrome. Safire defines the syndrome as “that revulsion at the use of military power that afflicted our national psyche for decades after our defeat.” At least we can be grateful that Safire nowhere makes clear what the wars since Vietnam were that America was prevented from entering because of what he calls the “national affliction” that accompanied the syndrome. It is this alleged inhibition on warmaking that has now resurfaced in the debate about Bob Kerrey’s degree of guilt and accountability, vividly presented in these pages by Christopher Hitchens [“Minority Report,” May 28] and Jonathan Schell [“War and Accountability,” May 21]. Overall, Safire wants to affirm Ronald Reagan’s embrace of illusion by regarding the Vietnam War as an occasion of national heroism and honor. Safire ends his column plaintively: “Are there no voices left, after that costly loss of life, to reject the Syndrome’s humiliating accusation of national arrogance–and to recall a noble motive?”
Alas, there are plenty such voices, most strident among them perhaps that of Senator John McCain, who writes with the authority of a former POW who was tortured during a long period of captivity in Vietnam. For McCain, despite the disclosure of the deliberate killing of civilians in the village hamlet of Thanh Phong back in February 1969, Kerrey remains “a war hero” who should be understood as having done what needed to be done in the sort of war being fought in Vietnam. Most disturbing, McCain argues that Vietnam was the kind of war that required its participants to hate the enemy, and he unabashedly makes a combat virtue out of hate. In his words: “I hated my enemies even before they held me captive because hate sustained me in my devotion to their complete destruction and helped me overcome the virtuous human impulse to recoil in disgust from what had to be done by my hand.” It is bad enough when a pilot holds such views, but when hatred informs the spirit of a ground war carried on in the midst of a densely inhabited civilian society, it is worse. It should not be surprising that atrocities became indistinguishable from normal battlefield practice, and not some anomaly that occurred on a single occasion at My Lai, or perhaps twice, counting Thanh Phong.
Kerrey’s own efforts at explaining and validating are not nearly as reprehensible as McCain’s, and they contain significant redeeming features, but in the end their instructional message is not much different. (I am leaving to one side Kerrey’s questionable version of the narrative of the fateful night at Thanh Phong, disputed by Gerhard Klann, the most experienced member of the SEAL squad, and Vietnamese eyewitnesses.)
Let me mention first the positive sides of what Kerrey has been saying, mainly in the course of public appearances and TV interviews. He is very upfront about the shocking fact that the soldiers in Vietnam were never trained in the laws of war and that he himself only learned about the US Army’s Field Manual prohibition on killing civilians long after the war. The central message of Field Manual 27-10, “The Law of Land Warfare,” was clear and pertinent: “Every violation of the law of war is a war crime…” This fundamental failure of training is a dreadful comment on command responsibility in a war of the sort waged in Vietnam.
Proper training would have contradicted the main lines of counterinsurgency warfare, which rested on a criminal premise: that as a matter of military doctrine, in those parts of the country where the revolutionary side had societal support, the entire civilian population–including women, children, the infirm and the wounded–should be treated as “the enemy.” In designating large portions of the Vietnamese countryside as “free fire” zones, US officials authorized pilots and soldiers to kill whatever moved, even farm animals. The most fundamental idea embedded in the law of war, requiring a belligerent to distinguish civilian from military targets, was completely abandoned. It should be kept in mind that Thanh Phong was in such a zone and that Kerrey commanded a small unit of Navy SEALs, who were especially assigned to carry out assassination missions as a part of what came to be known (and decried by critics of the war) as the Phoenix Program.
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In Kerrey’s individual defense, he was sent on an atrocity-generating mission without proper training as to his responsibility as a professional soldier, but that does not alter the character of the incident as an atrocity. It may mitigate his individual responsibility, while at the same time intensifying that of political and military leaders in control of the war.
In a long, friendly TV interview with CNBC’s Tim Russert, Kerrey made the obvious, yet necessary, point that is almost never made in mainstream discussion, namely, that the war “was much worse for the Vietnamese” than it was for the Americans. Typically, the Vietnamese are treated as an alien and cruel backdrop for an essentially American encounter with death and dying. A concern about misrepresentation of the war was vividly expressed by W.D. Ehrhart, a Vietnam veteran who was in the Marines, discussing the Kerrey incident on NPR’s Talk of the Nation: “You know, the Vietnam War, we imagine it’s this thing that happened to us when, in fact, the Vietnam War is this thing we did to them.”
But there is also much that is troublesome about Kerrey’s comments. Kerrey says that he only turned against the war when he reached the conclusion that it was unwinnable, and even more so when he realized that Americans back home no longer supported the war effort. There is no sense that the whole enterprise was flawed, an interference in the internal nationalist struggle of an ex-French colony by a US military undertaking that rested on criminal modes of warfare.
Kerrey may be correct in counseling against rearguing the merits of the war in America, but it is necessary for the country to perceive the nature of the conflict accurately so as to avoid stumbling into comparable disasters in the future. Such a concern is not fanciful, and definitely persists after the end of the cold war. The temptation of America to rely on its mastery of high-tech weaponry to overwhelm low-tech adversaries is actually far greater these days than during the cold war era. The success of such tactics in the Gulf War and especially in the casualty-free (for NATO) Kosovo War, puts the peoples of Asia, Africa and Latin America at continuous potential risk in the current world order. And unlike Vietnam, there is now often no sobering reality of American casualties to make leaders and citizens ponder the costs of war.
It is important to understand that even this much clarity about Vietnam’s moral legacy arises only because an attractive public figure was involved, engaging media interest because of the glamorous story line of a dramatic fall from grace. The personal drama was enriched by Kerrey’s recent designation as the president of New School University, an institution whose initial role was as a safe haven for outstanding refugee scholars fleeing Nazi criminality. We should not allow the melodrama of this cover story to obscure the realization that there were many atrocity stories reported by reliable witnesses and war veterans starting in the late 1960s. I remember listening in my living room on several occasions to tear-filled stories told by returning GIs about their role in military operations that involved the deliberate killing of Vietnamese peasant women and children. But their efforts to gain a wider hearing were generally spurned by the mainstream media. Even earlier, a distinguished group of US religious leaders, including Martin Luther King Jr., John Bennett, a prominent Protestant theologian, and Abraham Joshua Heschel, who formed Clergy and Layman Concerned About Vietnam to protest the war, endorsed the devastating findings of a privately published volume that gathered journalistic accounts of crimes associated with US military operations in Vietnam. Except among hard-core antiwar activists, this book, aptly titled In the Name of America, attracted no notice whatsoever.
There were other peace movement efforts to detail the criminal dimensions of the war policies being relentlessly pursued in Vietnam, most notoriously the 1967 sessions of the Bertrand Russell International War Crimes Tribunals held in Stockholm and Copenhagen. Much valuable evidence and testimony was presented to a prominent international panel of jurors that included such luminaries as Jean-Paul Sartre, Simone de Beauvoir, James Baldwin, David Dellinger, the playwright Peter Weiss and others. The whole proceeding was barely noticed in America at the time, except for an occasional broadside attacking the undertaking as partisan, one-sided, a mockery of due process. Unfortunately, much of this criticism was warranted, but much more deserved would have been a serious response to the evidence presented of a war that exceeded all the bounds set by the minimal standards incorporated into the laws of war. Such standards were unhesitatingly relied upon by the US government after World War II to assess the criminal responsibility of enemy soldiers and politicians. This framework for accountability was set forth early with self-righteous legal and moral authority as the historic basis for holding German and Japanese leaders individually responsible at Nuremberg and Tokyo after World War II. The US government, back in 1945, was the most ardent champion of the Nuremberg approach among the nations. The chief prosecutor, former Supreme Court Justice Robert Jackson, famously promised at the time that the principles being relied upon to convict the Germans at Nuremberg would be used in the future to assess the behavior of those sitting in judgment. For several decades, neither the United States nor its allies in World War II made any effort to fulfill this Nuremberg pledge.
If war as such were illegal from start to finish, then there would be no point to the regulation of conduct during war. The basis of laws of war–what are now generally called international humanitarian laws–is the nonpacifist idea that even though some wars, like World War II and armed struggles by brutally oppressed peoples, are just and necessary, their conduct needs to be regulated. And since each belligerent insists that its side is pursuing a just cause, international law has drawn the distinction for centuries between rules governing recourse to war and rules regulating its conduct. This distinction was relied upon at Nuremberg to distinguish between “an illegal war,” which was regarded as a “crime against peace,” and illegal combat operations, which were treated as “war crimes.” A third category, “crimes against humanity,” involved severe abuse of civilian populations, including one’s own people, which are committed outside the war zone. The central idea of international humanitarian law, as codified in a series of widely ratified international treaties, has been to reduce the human suffering in war as much as possible and to separate this task from the prevention of war itself. For this reason, both sides are equally bound by the rules governing combat even if one side is later found by an international body to have been the aggressor.
In the period since the collapse of the Berlin wall, significant and numerous developments on the accountability front have taken place. After decades of frustration, there has been a series of successful major efforts to compensate surviving victims of the Holocaust, and a series of comparable efforts are under way involving analogous Japanese responsibility for atrocities, including the scandal of the “comfort women.”
Additionally, the struggles of indigenous peoples to seek redress of grievances arising from their dispossession from their historic lands has produced a variety of surprising victories, although mainly of a symbolic character. These range from gaining access to the United Nations to draft their own Declaration on the Rights of Indigenous Peoples to the receipt of apologies and the establishment by several Commonwealth countries of trust funds devoted to the well-being of these peoples. Among these, Australia, New Zealand and Canada have been the scene of strong movements by indigenous peoples that have led governments to admit past wrongdoing and to make, so far, mostly symbolic amends.
Such developments have lent an unprecedented weight to African-American initiatives to demand reparations for the suffering and denial of rights associated with the institution of slavery. Previously such demands were dismissed as frivolous or worse, but no longer. Now, these claims are matters of controversy that engage respected voices on both sides of the issue. There is a widespread and growing agreement that past injustices leave enduring wounds unless the wrongs inflicted are repudiated and some effort at redress attempted. It need not be material or mercenary. Often the main relief sought is some sincere expression of symbolic acknowledgment.
These moves to obtain redress for past grievances are a new development in international political life and have made the question of global justice and its limits of growing interest in academic circles and among activists. It is not clear how far this process will lead, but it bears on issues of accountability for war crimes, especially to the victimized society and its citizens. The focus on victims’ justice is part of this new reality.
The developments relating to matters of accountability have been particularly momentous, and undoubtedly form the unconscious backdrop for rethinking US wrongdoing in Vietnam–or more appropriately, in the whole of Indochina. For complex ethical and geopolitical reasons, the Balkan wars of the 1990s created a new receptivity to the idea of criminal accountability, which led the UN Security Council to establish the International Criminal Tribunal for the former Yugoslavia. And then, in the aftermath of the 1994 genocide taking the lives of about 800,000–mostly Tutsi–Rwandans, a parallel tribunal for Rwanda was set up. These initiatives in turn gave rise to an innovative collaboration between a series of moderate governments and a coalition of several hundred civil society organizations (also known as nongovernmental organizations), which produced the Rome Treaty in 1998 to establish a permanent International Criminal Court. More than 100 countries signed the Rome Treaty, and it is expected that the court will come into existence within the next year or two, when it receives the necessary sixty treaty ratifications. As is so often the case, the United States’ enthusiasm for the project dimmed dramatically when it began to realize that its citizens and leaders could be among the accused, as well as being the accusers. Under domestic pressure, Bill Clinton added an American signature in his closing days as President, but the prospect of treaty ratification, which requires a two-thirds vote in the Senate, is near zero even with Democratic control during the Bush years.
There are additional international moves relating to accountability that have captured the political imagination in recent years. The most startling was the 1998 indictment in Spain and detention in Britain of the former Chilean dictator Augusto Pinochet. In the end Pinochet was sent back to Chile for medical reasons, and now Chilean courts are wrestling with a myriad of civil and criminal charges against him. The Pinochet litigation opened the way for national courts around the world to begin implementing international law in comparable circumstances, and much activity has already ensued. It has been reported that such vulnerable figures as Henry Kissinger and Ariel Sharon have altered travel plans to avoid the risk of enduring Pinochet’s fate.
There is a delicious irony associated with Kissinger’s publication of an article in the current issue of Foreign Affairs under the title “The Pitfalls of Universal Jurisdiction.” It is universal jurisdiction that allowed the criminal pursuit of Pinochet in Spain and Britain, and it is universal jurisdiction that would potentially allow a national court anywhere in the world to indict Kissinger for well-evidenced allegations of criminality in various countries.
In my view, this background should inform the US response to the Kerrey disclosures, but not mechanically, and not in a personal, vindictive spirit. What America needs to put in focus are those distinctive aspects of collective accountability and war that reveal the blind spots of US political culture, specifically in relation to the Vietnam War. I would highlight two such blind spots with fundamental significance to the sort of warfare likely to ensue in the near future. These corrective measures are necessary to lessen the likelihood of war crimes even in wars fought under the formal auspices of the UN and presented as “peacekeeping.” The first step is an unconditional acceptance at the highest levels of civilian and military leadership of the laws of war as a framework for the conduct of belligerent operations. And the second is the appropriate training of combat personnel so that they fully understand this framework and their professional obligations to uphold the laws of war and to resist orders that defy it. It is also of great importance in recollecting the Vietnam War that Americans understand that it was a war between unequals, with most of the victims of illegal methods being on the Vietnamese side. To advance in terms of accountability, the stress has to shift from “victors’ justice” (as at Nuremberg) to “victims’ justice” (as in the 1990s Balkan wars).
Of course, this latter distinction should be drawn contextually, as the identity of victims depends on the circumstances of the war. In this regard, a contrast can be drawn between World War II and the Vietnam War. Also, there are important gradations of victimhood that need to be taken into account.
Such priorities can be briefly clarified. The laws of war, as set forth in international treaties and international customary law, have been drafted over the decades on the basis of input from the military and with the outlook of sovereign states intent on having the least possible interference in their pursuit of national security policy. In other words, these are minimum constraints on combat operations designed to take the fullest account of legitimate claims of “military necessity.” The laws of war, or international humanitarian law, are not the work of pacifists or even antimilitarists, and are designed on the basis of mutual benefit, like the rules governing the treatment accorded POWs. They represent the judgments of seasoned statesmen and diplomats who have been seeking pragmatic as well as moral reasons to avoid excessive human suffering and to subject combat operations to some sort of professional discipline. The essence of this professionalism is that civilians are not legitimate targets under any conditions. Aryeh Neier, in his fine book War Crimes: Brutality, Genocide, Terror and the Struggle for Justice, quotes to powerful effect from Gen. Douglas MacArthur on this theme of military professionalism:
The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason for his being. When he violates this sacred trust he not only profanes his entire culture but threatens the very fabric of international society. The traditions of fighting men are long and honorable, based upon the noblest of human traits–sacrifice.
What is striking is that the attitudes expressed by McCain and Kerrey are so at variance with these sentiments. How can McCain’s emphasis on the need to hate or Kerrey’s indication of having no training in the laws of war be reconciled with MacArthur’s injunction? Doesn’t it point to a dangerous disconnect between rhetoric and practice that needs to be addressed?
Looking back at Vietnam, it is evident that once such policies as free-fire zones and assassination programs were adopted at command levels, this sort of professionalism was effectively disowned. In this sense, the locus of responsibility should not be associated with the perpetrators of war crimes but with their leaders, who established a rogue conception of military necessity that is reconcilable neither with MacArthur’s professionalism nor with the minimum restraints of the laws of war. This does not exonerate the perpetrators, but regards the Calleys (Lieut. William Calley, the main perpetrator of the My Lai massacre) and Kerreys themselves partly as “victims” of a deformed command structure, and partly as scapegoats for leaders hypocritically backed into the position of opposing the violence against civilians that their policies mandate. It is precisely these twisted circumstances that made the prosecution of Calley such an ambiguous moral occasion, with the grotesque fallout of making him into a temporary folk hero in Georgia.
This broad-brush treatment of an anguished background suggests the importance of not allowing the Kerrey incident to die in peace. As citizens we need to exert greater vigilance to insure that what is done “in the name of America” does not bring shame to the country and to those young Americans who bear the brunt of risk and loss. The ideal solution, mentioned by Hitchens, would be the establishment of a credible commission of inquiry into the broad issues raised, with a brief to put forward detailed recommendations. The focus should be less on individual accountability and more on reinforcing support for adherence to the laws of war, military professionalism and victims’ justice. The ideal solution would involve some sort of acknowledgment of collective responsibility by the United States to Vietnam, starting with honoring the commitment Kissinger made in the Paris peace negotiations to provide Vietnam with several billion dollars of reconstruction assistance. Of course, recognition of the criminality of the war policies in Vietnam cannot bring the victims back to life, but US moves toward accepting responsibility would help heal remaining wounds and enable the United States to accept its own subjection to the rule of law in relation to uses of force and foreign policy generally. It would imply an entirely new and more mature style of global leadership.
But to wait for an ideal solution is to wait for Godot! Official America continues to be resistant to the sort of initiative being proposed here, and public opinion is not much more receptive. Recall that even an exhibition of the suffering caused by the Hiroshima bombing, scheduled to be shown at the Smithsonian Institution on the fiftieth anniversary back in 1995, caused a ferocious backlash and reduced the presentation to almost nothing. And much of the response to what Kerrey has had to say–and much of his own catechism of atonement–indicates that America is not ready to receive such messages.
If action is to be taken, it has to emerge from civil society, and it has to be primarily educational, rather than punitive or even accusatory, in intent. There has been a great deal of evolving sophistication in the way peoples’ tribunals operate since the Russell experiment of the late 1960s. The Permanent Peoples’ Tribunal in Rome has held many sessions over the past twenty years, dealing with issues as disparate as the Armenian genocide of 1915, self-determination for Puerto Rico, the dispossession of the Amerindians from Amazonia and the predatory lending practices of the IMF and World Bank. I think that one could obtain the participation of distinguished moral authority figures in the United States and elsewhere who would participate in a National Committee to Promote Justice and Reconciliation with the Peoples of Indochina. If well done, the process and outcome would raise consciousness of the difficult, persistent issues raised by what Kerrey did back in 1969 and what people are saying about it in 2001.
Such an initiative would also be a way of increasing civic responsibility in participatory democracy, and be a further expression of the conviction that sovereignty resides with the citizenry rather than with the government. With party politics occasioning such justifiable disillusionment these days, especially among the young, now is the time to revitalize democratic practice and confidence through creative undertakings that address the human wrongs governmental institutions neglect. We have, happily, moved far beyond the kind of sentiment that French President Charles de Gaulle expressed in his response to Sartre’s request that the Russell Tribunal be allowed to operate in France: “I have no need to tell you that justice of any sort, in principle as in execution, emanates from the state.”
Whatever else, statism can no longer claim–indeed, it never could–a monopoly on the dispensation of justice, and most particularly not global justice. And especially not to the victims of an unjust war who live in a distant state. We are all challenged to make use of our democratic possibilities to forge a constructive response that will transform Kerrey handwringing into a process of national healing. Such an effort requires that we evolve a culture of empathy that embraces, first of all, the people of Vietnam, and that leads to a stronger engagement with human solidarity. Such solidarity is the only real antidote to pathological forms of nationalism, and the only reliable repudiation of a total-war mentality.
One of the wisest voices on these troubling matters is that of Harvard law professor Martha Minnow, eloquently accessible in her book Between Vengeance and Forgiveness. She reminds us that “to seek a path between vengeance and forgiveness is also to seek a route between too much memory and too much forgetting.” This is a crucial message for the most agitated adversaries engaged in the ongoing debate about criminality during the Vietnam War. It should be neither an American Syndrome of too much forgetting nor a supposed Vietnam Syndrome of too much remembering. Both proximity and distance need to be respected as the more sensitive and compassionate discussions of the Kerrey experience have managed to do. Finally, Minow reminds us that we are all responsible: Even those of us who are bystanders have a capacity to know and to act, and if we fail to do so, we become a form of victim, and perpetrator.