If certain acts in violation of treaties are crimes, they are crimes whether the United States does them or whether 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.
–Mr. Justice Robert Jackson, Chief Prosecutor for the United States at the Nuremberg Tribunals
The dramatic disclosure of the Song My massacre has aroused public concern over the commission of war crimes in Vietnam by American military personnel. Such a concern, while certainly appropriate, is insufficient if limited to inquiry and prosecution monstrous events that may have taken the lives of more than 500 civilians In the My Lai No. 4 hamlet of Song My village on March 16, 1968.
Song My stands out as a landmark atrocity in the history of warfare, and its occurrence is a moral challenge to the entire American society. This challenge was stated succinctly by Mrs. Anthony Meadlo, the mother of David Paul Meadlo, one of the killers at Song My: “I sent them a good boy, and they made him a murderer.” (The New York Times, November 30, 1969.) Another characteristic statement about the general nature of the war was attributed to all army staff sergeant: “We are at war of the individual servicemen who participated in the with the ten-year-old children. It may not be humanitarian, but that’s what it’s like.” (The New York Times, December 1, 1969.) The massacre itself raises a serious basis for inquiry into the military and civilian command structure that was in charge of battlefield behavior at the time.
However, evidence now available suggests that the armed forces have tried throughout the Vietnamese War to suppress, rather than to investigate and punish, the commission of war crimes by American personnel. The evidence also suggests a failure to protest or prevent the manifest and systematic commission of war crimes by the armed forces of the Saigon regime.
Thus a proper inquiry must be conducted on a scope much broader than any single day of slaughter. The official policies developed for the pursuit of belligerent objectives in Vietnam appear to violate the same basic and minimum constraints on the conduct of war as were violated at Song My. The B-52 pattern raids against undefended villages and populated areas, “free bomb zones,” forcible removal of civilian population, defoliation and crop destruction, and “search and destroy” missions have been sanctioned by the United States Government. Each of these tactical policies appears to violate international laws of war that are binding upon the United States by international treaties ratified by the government, with the advice and consent of the Senate. The overall American conduct of the war involves a refusal to differentiate between combatants and nom combatants and between military and nonmilitary targets. Detailed presentation of such acts of war in relation to the laws of war is contained in In the Name of America, published under the auspices of the Clergy and Laymen Concerned About Vietnam, in January 1968–several months before the Song My massacre took place. Ample evidence of war crimes has been presented to the public and to its leaders for some time, but it has not produced official reaction or rectifying action. A comparable description of the acts of war that were involved in the bombardment of North Vietnam by American planes and naval vessels between February 1965 and October 1968 may be found in North Vietnum: A Documentary, by John Gerassi.
The broad point is that the United States Government has officially endorsed a series of battlefield activities that appear to qualify as war crimes. It would, therefore, be misleading to isolate the awful happenings at Song My from the overall conduct of the war. Certainly, the perpetrators of the massacre are, if the allegations prove correct, guilty of war crimes, but any trial pretending to justice must consider the extent to which they were executing superior orders or were carrying out the general line of official policy that established a moral climate.
The U.S. prosecutor at Nuremberg, Robert Jackson, emphasized that war crimes are war crimes no matter what country commits them. The United States more than any other sovereign state took the lead in the movement to generalize the principles underlying the Nuremberg judgment. At its initiative, the General Assembly of the United Nations, in 1945 unanimously affirmed “the principles of international law recognized by the Charter of the Nuremberg Tribunal” in Resolution 95(I). This resolution was an official action of governments. At the direction of the UN membership, the International Law Commission, a body of international law experts from all the principal legal systems in the world, formulated the Principles of Nuremberg in 1950. These seven Principles of International Law are printed in full in the adjoining box, to indicate the basic standards of international responsibility governing the commission of war crimes.
Neither the Nurernberg judgment nor the Nuremberg principles fixes definite boundaries on personal responsibility. These will have to be drawn as the circumstances of alleged violations of international law are tested by competent domestic and international tribunals. However, Principle IV makes it clear that superior orders, ‘are no defense in a prosecution for war crimes, provided the individual accused of criminal behavior had a moral choice available to him.
The United States Supreme Court upheld in The Matter of Yamashita 327 US. I (1940) a sentence of death pronounced on General Yamashita for acts committed by troops under his command in World War II. The determination of responsibility rested upon the obligation of General Yamashita to maintain discipline among troops under his command, which discipline included enforcement of the prohibition against the commission of war crimes. Thus General Yamashita was convicted, even though he had no specific knowledge of the alleged war crimes. Commentators have criticized the conviction of General Yamashita because it was difficult to maintain discipline under the conditions of defeat that prevailed when these war crimes were committed in the Philippines, but the imposition of responsibility in this case sets a precedent for holding principal military and political officials responsible for acts committed under their command, especially when no, diligent effort was made to inquire into and punish crimes, or prevent their repetition. The Matter of Yamashita has vivid relevance to the failure of the U.S. military command to enforce observance of the minimum rules of international law among troops serving under their command in Vietnam. The following sentences from the majority opinion of Chief Justice Stone in The Mutter of Yamashita has a particular bearing :
It is evident that the conduct of military operations by troops whose excesses are unrestrained by the orders or efforts of their commands would almost certainly result in violations which it is the purpose of the law of war to prevent. Its purpose to protect civilian populations and prisoners of war from brutality would largely be defeated if the commands of an invading army could with impunity neglect to take responsible measures for their protection. Hence the law of war presupposes that its violation is to be avoided through the control of the operation of war by commanders who are to some extent responsible for their subordinates. [327 U.S. 1, 15]
In fact, the effectiveness of the law of war depends, above all else, on holding those in command and in policy-making positions responsible for rank-and-file behavior on the field of battle. The reports of neuropsychiatrists, trained in combat therapy, have suggested that unrestrained troop behavior 1s almost always tacitly authorized by commanding officers–at least to the extent of conveying the impression that outrageous acts will not be punished. It would thus be a deception to punish the trigger men at Song My without also looking higher on the chain of command for the real source of responsibility.
The Field Manual of the Department of the Army, FM 27-10, adequately develops the principles of responsibility governing members of the armed forces. It makes clear that the “law of war is binding not only upon States as such but also upon individuals and, in particular, the members of their armed forces ” The entire manual is based upon the acceptance by the ‘United States of the obligation to conduct warfare in accordance with the international law of war. The substantive content of international law is contained in a series of international treaties that have been ratified by the United States, including principally the five Hague Conventions of 1907 and the four Geneva Conventions of 1949.
These international treaties are part of “the supreme law of the land” by virtue of Article VI of the U.S. Constitution. Customary rules of international law governing warfare are also applicable to the obligations of American citizens.
It has sometimes been maintained that the laws of war do not apply to a civil war, which is a war within a state, and some observers have argued that the war in Vietnam represents a civil war between factions contending for political control, of South Vietnam. That view may accurately portray the principal basis of conflict (though the official American contention, repeated by President Nixon on November 3, is that South Vietnam, a sovereign state, has been attacked by an aggressor state, North Vietnam), but surely the extension of the combat theatre to include North Vietnam, Laos, Thailand, Cambodia and Okinawa removes any doubt about the international character of the war from a military and legal point of view. But even if one assumes that the war should be treated as a civil war, the laws of war are applicable to an extent great enough to cover the events at Song My and the commission of many other alleged war crimes in Vietnam. The Field Manual incorporates Article 3 of the Geneva Conventions of 1949, which establishes a minimum set of obligations for civil war situations:
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, meluding members of armed forces who have laid down their arms and those pIaced hors de combat by sickness: wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded in race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular, humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
(2) The wounded and sick shall be collected and cared for. An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavor to bring into force, by means of special agreements, all or part of the other provisions of the present convention.
I have already suggested that there is evidence that many official battlefield policies relied upon, by the United States in Vietnam amount to war crimes. These official policies should be investigated in light of the legal obligations of the United States. If found to be “illegal;” such policies should be discontinued forthwith and those responsible for the policy and its execution should be prosecuted as war criminals by appropriate tribunals. These remarks definitely apply to the following war policies, and very likely to others: (1) the Phoenix Program; (2) aerial and naval bombardment of undefended villages; (3) destruction of crops and forests; (4) “search-and-destroy” missions; (5) “harassment and interdiction” fire; (6) forcible removal of civilian population; (7) reliance on a variety of weapons prohibited by treaty.
In addition, all allegations of particular war atrocities should be investigated and reported upon by impartial and responsible agencies of inquiry. These acts–committed in defiance of declared official policy–should be punished.
Responsibility should be imposed upon those who inflicted the harm, upon those who gave direct orders, and-upon those whose powers of command included insistence upon overall battlefield discipline and the prompt detection and punishment of war crimes committed within the scope of their authority.
Political leaders who authorized illegal battlefield practices and policies, or who had knowledge of these practices and policies and failed to act are similarly responsible for the commission of war crimes. The following paragraph from the majority judgment of the Tokyo War Crimes Tribunal is relevant:
blockquote A member of a Cabinet which collectively, as one of the principal organs of the Government, is responsible for the care. of prisoners is not absolved from responsibility if, having knowledge of the commission of the crimes in the sense already discussed, and omitting or failing to secure the taking of measures to prevent the commission of such crimes in the future, he elects to continue as a member of the Cabinet. This is the position even though the Department of which he has the charge is not directly concerned with the care of prisoners. A Cabinet member may resign. If he has knowledge of ill-treatment of prisoners, is powerless to prevent future ill-treatment, but elects to remain in the Cabinet thereby continuing, to participate in its collective responsibility for protection of prisoners he willingly assumes responsibility for any ill-treatment in the future.
Army or Navy commanders can, ‘by order, secure proper treatment and prevent ill-treatment of prisoners. So can Ministers of War and of the Navy. If crimes are committed against prisoners under their control, of the likely occurrence of which they had, or should have had knowledge in advance, they are responsible for those crimes. If, for example, it be shown that within the units under his command conventional war crimes have been committed of which he knew or should have known, a commander who takes no adequate steps to prevent the occurrence of such crimes in the future will be responsible for such future crimes.
The United States Government was directly associated with the development of a broad conception of criminal responsibility for the leadership of a state during war. A leader must take affirmative acts to prevent war crimes or dissociate himself from the government. If he fails to do one or the other, then by the very act of remaining in a government of a state guilty of war crimes, he becomes a war criminal.
Finally, as both the Nuremberg and the Tokyo judgments emphasize, a government official is a war criminal if he has participated in the initiation or execution of an illegal war of aggression. There are considerable grounds for regarding the United States involvement in the Vietnamese War–wholly apart from the conduct of the war–as involving violations of the UN Charter and other treaty obligations of the United States. (See analysis of the legality of U.S. participation in Vietnam and International Law, sponsored by the Lawyers Committee on American Policy Towards Vietnam; see also R. A. Falk, editor, The Vietnam War and International Law, Vols. 1 and 2.) If U.S. participation in the war is found illegal, then the policy makers responsible for the war during its various stages would be subject to prosecution as alleged war criminals.
The idea of prosecuting war criminals involves using international law as a sword against violators in the military and civilian hierarchy of government. But the Nuremberg principles imply a broader human responsibility to oppose an illegal war and illegal methods of warfare. There is nothing to suggest that the ordinary citizen, whether within or outside the armed forces, is potentially guilty of a war crime merely as a consequence of such a status. But there are grounds to maintain that anyone who believes or has reason to believe that a war is being waged in violation of minimal canons of law and morality has an obligation of conscience to resist participation .in and support of that war effort by every means at his disposal. In that respect, the Nuremberg principles provide guidelines for citizens’ conscience and a shield that can be used in the domestic legal system to interpose obligations under international law between the government and members of the society. Such a doctrine of interposition has been asserted in a large number of selective service cases by individuals refusing to enter the armed forces. It has already enjoyed a limited success in the case of U.S. v. Sisson, the appeal from which decision is now before the U.S. Supreme Court.
The issue of personal conscience is raised for everyone in the United States. It is raised more directly for anyone called upon to serve in the armed forces. It is raised m a special way for parents of minor children who are conscripted into the armed forces. It is raised for all taxpayers who support the cost of the war. A major legal test of the responsiveness of our judicial system to the obligations of the country to respect international law is being mounted in a taxpayers’ suit that has been organized by Pierre Noyes, a professor of physics at Stanford University. In this class action the effort is to induce the court to pronounce upon whether it is permissible to use tax revenues to pay for a war that violates the U.S. Constitution and duly ratified international treaties. The issue of responsibility is raised for all citizens who in various ways endorse the war policies of the government. The circle of responsibility is drawn around all who have or should have knowledge of the illegal and immoral character of the war. The Song My massacre puts every American on notice as to the character of the war. The imperatives of personal responsibility call upon each of us to search for effective means to bring the war to an immediate end.
And the circle of responsibility does not end at the border. Foreign governments and their populations are pledged by the Charter of the United Nations to oppose aggression and to take steps to punish war crimes. The cause of peace is indivisible, and all those governments and people concerned with Charter obligations have a legal and moral duty to oppose the American involvement in Vietnam and to support the effort to identify, prohibit and punish war crimes. The conscience of the entire world community is implicated by inaction, as well as by more explicit forms of support for U.S. policy.
Some may say that war crimes have been committed by both sides in Vietnam and that, therefore, if justice is to be even-handed, North Vietnam and the Provisional Revolutionary Government of South Vietnam should be called upon to prosecute their officials guilty of war crimes. Such a contention needs to be evaluated, however, in the overall context of the war, especially in relation to the identification of which side is the victim of aggression and which side is the aggressor. But whatever grounds there may be for attempting to strike a moral balance of this sort, the allegation that the other side is also guilty does not operate as a legal defense against a war crimes indictment. That question was clearly litigated and decided at Nuremberg.
Others have argued that there can be no war crimes in Vietnam because war has never been “declared” by the U.S. Government. The failure to declare war under these circumstances raises a substantial constitutional question, but it has no bearing upon the rights and duties of the United States under international law. A declaration of war is a matter of internal law, but the existence of combat circumstances is a condition of war that brings into play the full range of obligations under international law.
Rather than encouraging a sense of futility, the Song My disclosures give Americans a genuine focus for concern and action. It now becomes possible to understand the human content of counterinsurgency warfare as waged with modern weapons and doctrines. The events at Sang My suggest the need for a broad inquiry into the relationship between the civilian and military leadership of the country and into the systematic battlefield practices of our forces in Vietnam. The occasion calls not for self-appraisal by generals and government officials but at a minimum a commission of citizens drawn from all walks of life and known for their sense of scruples. We need a Presidential commission that has access to all records and witnesses, and is empowered to make public a report and recommendations for action. We also need a series of legal tests in domestic courts, initiated on behalf of such injured groups as civilian survivors of war crimes, young Americans who are in jail or exile because they have contended all along that the American effort in Vietnam violates international law, and servicemen who refuse to obey orders to fight in Vietnam, who complain of the illegality of “superior orders,” or who seek to speak out and demonstrate against continuation of the war.
On a world scale, it would seem desirable for the UN to mount an investigation of allegations of war crimes, especially in relation to Vietnam and Nigeria. It would also seem appropriate for the UN to organize a world conference to reconsider the laws of wars as related to Contemporary forms of warfare. The world peace conferences of 1899 and 1907 at The Hague might serve as precedents for such a conference call. Such an expression of world conscience is desperately needed at this time. We also need a new set of international treaties that will bind governments in their military conduct.
Given the perils and horrors of the contemporary world, it is time that individuals everywhere called their governments to account for indulging or ignoring the daily evidences of barbarism. We are destroying ourselves by destroying the environment that permits life to flourish, and we are destroying our polity by destroying the values of decency that might allow men eventually to live together in dignity. The obsolete pretensions of sovereign prerogative and military necessity had better be challenged soon if life on earth is to survive.