• 

, 

, 

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<. 

sou T H CHI H A ". 
VIETNAM STUDIES 

LAW AT WAR: VIETNAM 

1964-1973 

by 

Major General George S. Prugh 

DEPARTMENT OF THE ARMY 

WASHINGTON, D.C., 1991 
Library of Congress Catalog Card Number: 74-31399 

First Primed 1975-CMH Pub 90-14 

For Sille by lhr Superintrndrnt ofOocumrnu.. U.S. Governmrm Printing Officr 

WUhington. D.C. 20402 
Foreword 

The United States Army has mel an unusually complex challenge 

in Southeast Asia. In conjunction with the C'ther services. the Army 

has fought in support of a national policy of assisting an emerging 

nation to develop governmental processes of its own choosing. free of 

outside coercion. In addition to the usual problems of waging armed 

conflict, the assignment in Southeast Asia has required superimposing 

the immensely sophisticated tasks of a modern army upon an underdeveloped environment and adapting them to demands covering a 

wide specttum. These involved helping to fulfill the basic needs of 

an agrarian population, dealing with the frustrations of antiguerrilla 

operations, and conducting conventional campaigns against welltrained and determined regular units. 

Although this assignment has officially ended, the U.S. Army must 

prepare for other challenges that may lie ahead. While cognizant 

that history never repeats itself exactly and that no army ever profited 

from trying (0 meet a new Challenge in terms of the old one, the 

Army nevertheless slands to benefit immensely from a study of its 

experience. its shortcomings no less than it .. achievements, 

Aware that some years must elapse before the official histories will 

provide a delailed and objective analysis of the experience in Southeast Asia, we have sought a forum whereby some of the more salient 

aspet::ts of that experience can be made available now. At the request 

of the Chief of Slaff, a representative group of senior officers who 

served in imporlant posts in Vietnam and who still carry a heavy 

burden of day-to-day resp:msibilities has prepared a series of monographs. These studies should be of great value in h~lping the Army 

develop future operational concepts while at the $arne time contributing to the historical record and providing the American public 

with an interim report on the performance of men and officers who 

have responded, as others have through our history. to exacting and 

trying demands. 

The reader should be reminded that most or the writing was 

accomplished while the war in Vietnam wa~ at it~ peak, and the 

monographs frequently refer to events of the past as if they were 

taking place in the present. 

All monographs in the series are based primarily on official records. with .additional material from published and unpublished sec-
ondary works, from debriefing reports and interviews with key 

participanu. and from the personal experience of the author. To 

facilitate security clearance, annotation and detailed bibliogrnphy 

have been omitted from the published version; a fUlly documented 

account with bibliography is filed with the U.S. Army Center of 

Military History. 

Major General George S. Prugh graduated from Hastin~ College 

of Law. University of California. in San Francisco in 1948 and reo 

ceived the degree of Juris Doctor. He is a member o[ the bar of the 

s[ate of California. General Prugh is a graduate of the Command and 

General Staff College and the U.S. Army War College. He received 

the degree of Master of Aru from George Washington University in 

Washington. D.C .• in 1963. 

General Prugh is particularly well qualified to author this monograph on judge advocate activities at Headquaners, U.s. Military 

Assistance Command. Viemam. In November 1964 he became the 

Staff Judge Advocate at the Military Assistance Command. and served 

in that capacity on an extended tour until July 1966. General Prugh's 

assignment in Vietnam coincided with the years which have been 

deKTibed by General Westmoreland. Commander. U.S. Military 

Assistance Command. Vietnam, as the year of crisis. 1964; the year of 

military commitment. 1965; and the year of development. 1966. 

Following his tour in Vietnam General Prugh assumed the duties 

of legal adviser to the U.S. European Command in Saint·Germain. 

en·laye. France. and later at Stuttgart, Germany. On I ' May 1969, 

he became the Judge Advocate, U.S. Army Europe and Seventh 

Anny. at Heidelberg, Germany. He was reassigned to the Depart. 

ment of the Anny, Washington. D.C .• in June 1971. and assumed 

the position of The Judge Advocate General on I July 1971. 

Washington, D.C. 

iO September 1974 

iv 

VERNE L. BOWERS 

Major General, USA 

The Adjutant General 
Preface 

The laws of a nalion fonn the most instructive portion 

of its history .... EDWARD GIBBON 

The American people have a special relationship with their law. 

While they themselves loudly criticize it as too slow, often archaic. 

and usually inadequate. they are at the same time devoted to its extraordinarily high legal principles-principles of fairness, openness, and 

justice frequently talked about by other peoples but rarely observed 

in actual daily practice to the extent that they are in America. The 

American people take their law with them. insofar as they are able. 

and they find it difficult to accept when other nations do not see 

jwtice in the same light they do. That war affects law is nOl apparent 

to many Americans, who are so used to peace at home, where their 

COUTts continuously function, that it is very hard for them to visualize 

how combat interferes with the legal process. 

It will surprise no serious student of American affairs to learn 

that from the beginning of American participation in the Vietnam 

War- there was a substantial presence of American law and legal insti· 

tutions in the company of U.S. forces the.e. This presence of U.S. 

law had effects during American participation and after, some of them 

only dimly seen at this time because we are so close to the event. The 

purpose of this monograph is to describe the presence of law at a 

particular time and in a particular American command in Vietnam. 

I have selected the U.S. Military Assutance Command, Vietnam, as 

the headquarters, and the crucial yean of 1964 through 1966 as the 

primary but not exclusive period of time to study, partly because as 

the senio.legal officer, the Staff Judge Advocate at Military Assistance 

Command, Vietnam, then, I was most familia. with events, but in 

the main because it was in that headquarters and at that time that 

basic policy positions we.e formed. It was early apparent that law 

could have a speciallOle in Vietnam because of the unusual circum· 

stances of the war, which was a combination of internal and external 

war, of insurgency and nation-building. and of development of indigenous legal institutions and rapid disintegration of the remnants 

of the colonial French legal establishment. Fu.ther, the Vietnamese 

people were eager fo. knowledge of American institutions. including 

law. 

v 
To describe the events, the interplay, the considerations, and the 

immediate results of U.S. lega l activities in the Military Assistance 

Command. Vietnam, has proved a large task. Any treatment of the 

conduct and discipline of the U.S. Army, Vietnam, a subordinate 

command, has been omitted as not a direct pan of the law work of 

the Military Assistance Command. 

Similarly omitted is a detailed discussion of the tragic action at My 

Lai (Son My), which beclouds the record of the many well-led-and 

legally conducted-military operations. Except for brief remarks in 

passing, My Lai is omiued for several reasons: it has been widely 

publicized, it occurred about two years later than the primary period 

this monograph deals with, and it was the legal responsibility of the 

service component, U.S. Army, Vietnam, as distinguished from the 

unified command headquarters, Military AssisL.1nce Command, Vietnam, which is the focus of this monograph. 

Upon receiving the assignment to the MiliL1ry AssisL.1l1Ce Command, Vietnam, in the rail of 1964. I framed two guiding questions. 

Fint. what must be done to assure that the command's activities were 

performed in a manner conforming to applicable Jaw, national and 

international? Second, in what manner could law and lega l inStitutions be properly used to (urther the accomplishment of the command's mission? 

Th~ questions led directly to the requirement to find Out how 

the Jaw was actually working-and this meant an early identification 

of the law that was being applied and its source. For our command's 

activities this was difficult only in the area of international law. The 

so-called Pelllaialerai Agreemelll, referred to in some d,etail in the 

following text, served as a framework for dealing with legal issues 

arising between U.S. military personnel and the people and legal 

institutions of the Republic of Vi etnam. This agreement was a barebones one, however, and much interpretation and practice would be 

needed before we could be sure the needs of the command and the 

desires of the host country could be simultaneously met. 

Most difficult for us, however. was to determine applicable internationa l law, for much depended upon the legal characterization of 

the conflict and the American role in it. The traditional tests of internal conflict in contrast to an international conflict were clearly tOO 

imprecise in this situation where the country of Vietnam had been 

divided, purportedly temporarily, by the Geneva Accords of 1954, 

and both portions of the country claimed sovere ignty and had reccived somc supporting recognition. There were aspects of a civil war 

within South Vietnam and equally valid aSJ>Ccts of invasion by regular troops from North Vietnam; Free World forces were present at 
the invitation of the government, assening the sovereignty of South 

Vietnam. Attacks on these Free World forces were made by "indigenous" Viet Cong and "foreign" North Vietnamese troops; the line 

between civilian terTori~lS and the military insurgents was so blurred 

as to be indistinguishable; and almost all of the traditional measures 

-uniform, organization, carrying of arms openly-failed to identify 

the combatants. Clearly we had a lot of loose ends to pick up before 

we could be certain of the legal positions we should advocate. and 

we had few precedents to guide us. 

The second question brought us much more quickly and dramatically into the search for Vietnamese law. One fact became abundantly clear; we knew very lillie about Vietnamese law and how it 

actually worked. Nominally it was a derivative of the French civil 

law system, blll in practice this law is not what impacted on the bulk 

of the population, at least outside of the three or four largest cities. 

The military services had developed a variation of the French system, but it was made unique by the various decrees that had been 

issued since the establishment of the Republic of Vietnam. Notwithstanding what the law was said to be, it was evident that what was 

actually being applied was frequently far different. To learn these 

facts, then, became a first priority and led to the formation of a 

division in the MACV Staff Judge Advocate's office of field advisers, military lawyers who would assist their Vietnamese counterparts in the field and would at the same time gather as much information as possible about the law system's actually working. 

The emphasis of this monograph upon one law office perforce 

leaves unrecounted the story of the often dramatically impressive 

accomplishments of the substantially larger number of Army, Navy, 

and Air Force judge advocate personnel who performed legal services for subordinate commands within the Republic of South 

Vietnam. 

The task of reconstructing the scenes in which the Military Assistance Command, Vietnam, judge advocates played a part was 

formidable. A debt of gratitude, therefore, is owing to my colleagues 

in the law who have contributed to the preparation of this monograph and to those many friends who have read all or parts of this 

manuscript and provided constructive suggestions. I wish to express 

my appreciation to Colonel Nathaniel C. Kenyon, Major Paul P. 

Dommer, and Captain Robert E. Deso, who, while members of my 

office, were project officers for this monograph. They assembled the 

materials and did most of the writing. 

This study can touch on only a few of the highlights of the exciting period described, but it is my intention that it accurately reflect 

vii 
the fact that at that time, in troubled Vietnam, military lawyers o{ 

America and Asia lirted the lid and looked, albeit brieRy, at what 

law and iu institutions can do (or a country engaged in a modern 

armed conRict. This was activism in the law, and activism of high 

order. For having had an opportunity to participate in lhis activism 

at this time and with these people, I shall be eternally grateful. 

Washington , D.C. 

10 September 1974 

Vllt 

GEORGE S. PRUGH 

Major General, USA 

The Judge Advocate General 
Contents 

CA.p,,, PIJI' 

I. ORG.\NIZATION FOR LEGAL SERVICES.......... 3 

The U.s. Military AuiJtance Command, Vit'tnam.. ... 3 

The MACV Judge Advocates. .. . ..•... .... ... ... 6 

The StaB Judge Advocate . . . . . . . . . . . . . . . . . . . . . . 8 

Criminal and Disciplinary Low DiuUion. . . . . • . . . . . . 8 

CiuiJ Law and Military ADairs Diuision .. . ..•• •. • . . 10 

Advisory Diuision ........................••... II 

International Law Division ............... ••.... 12 

II, THE VIETNAMESE LEGAL SYSTEM. .. ... • • . .. .. . 15 

Th, Vidnam Environment .. . . . . . . . . . . . . . . • . . . . . 16 

Th, Chinese I nfluence ................•........ J 7 

Th, French Influence . . . . . . . . . . . • . . . . . • . . . . • . . . 19 

Th, Vietnamt'lt Constitutions ....•••••••• •• •••.. 22 

Dec", L4w ..................•....•.....•... 23 

The Minutry 0/ j wtice . . . . . . . . . . • . . . . . . . . . . . . . . 27 

The Court System. . . . . . . . . . . . . • . . . . . • . . . . . • . . . 28 

The Military Courts ... . . . . . . . . . . . . . . . . . . . . . . . . 34 

The Law and the People ....................... 36 

III. THE JUDGE ADVOCATE ,\DVISORY ROLE ........ 40 

Beginnings and Development to /965 . . . . . . . . . . . . . . 41 

The Gendarmerie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 

Law Society 0/ Free Vietnam .. . . . . . . . . . . . . . . • . . . 47 

The Advisory Divuion ............•....•....... 49 

Educational Program ........... .•• •• . .••.••... 51 

The Field AdviJers ................. , , . , . , , .•. , 53 

The Pruon Adviso ry Program . .......... , .. ," ., 57 

IV. PRISONERS OF WAR AND WAR CRIMES.......... 61 

Application 0/ Geneva Conventions to Pruoners 0/ War 61 

Establuhing a Pruoner 0/ War Program.. . ... ... . .. 67 

I nspections by the International Committee 0/ the 

RedCross ..... , ....... , ................... 68 

Repatriation EDorts .... , ................... , ... 70 

MAC V Policy on Prewntion and Investigation 

0/ War Crimes ....................... 72 
Pal' 

Troop Education ............. .• . • .. •. .. • ..... 74 

War Crimes Investigation ......••.•. .. •.... . ... 76 

v. CLAIMS ADMINISTRATION. . . .. ... • ... ..•.. . . .. 79 

Opt:rations Be/ore 1966 ......... ••. •. .... .. .... 79 

Claims Developments .............••.. • . •..••.. 82 

Claims Responsibility ............. • .....•...... 83 

Claims Obligations ........................ . . . . 83 

Solatium Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . 84 

Vietnamese Cowrnment Claims Programs. . . . . . . . . . 84 

VI. THE LEGAL STATUS OF FORCES IN VIETNAM.... 87 

U.S. Troop Buildup ........................... 88 

Application 0/ the Pentalateral Agreement to 

U.s. Penonnel ............................. 90 

Application of the Pentalaural Agreement to 

U.s. M atiriel .......................... • ... 92 

Cwtoms ................................ ••.. 92 

Taxes ................................. • . • .. 94 

Contractor Activities .......................•.. 96 

VII. DISCIPLINE AND CRIMINAL LAW .... • .••••• . .. 98 

Military Jwtice in Vietnam ................ .• ... 99 

Black Market Activities ............... . ... • •... 103 

Currency Violations. .. . ..... .. .... ... ...•. •... 104-

The Drug Problem ................... •• • .•.... 106 

Criminal Jurisdiction Over Civilians... .•. ...• •. . . 108 

Administrative Measures. . . . . . . . . . . . . . • . . . . . . . . . 110 

VIII. SUMMING UP 112 

Af/p",dix 

A. 

B. 

C. 

D. 

E. 

F. 

G. 

H. 

Chronological Listing of Staff Judge Advocates in Vietnam, 

June 1959-March 1973 ........................ . 

Compilation of Laws Dealing With Offenses Against 

National Security in the Republic of Vietnam, 1967 .... 

The Role of Civil Law in Counterinsurgency ......•... 

Exploitation of Human Sources and Captured Documents 

International Committee of the Red Cross Inspections of 

Detainee and Prisoner of War Facilities ........•... 

Inspections and Investigations of War Crimes ........ . 

Geneva Conventions Checkshcet ............... ••... 

"The Enemy in Your Hands" 

x 

118 

119 

122 

127 

132 

136 

140 

143 
App,ndix 

I. Mutual Ddense Assistance in Indochina 

J 

K. 

INDEX 

No. 

Legal Services in Vietnam ........................ . 

U.S. Anny Disciplinary Actions, Republic of Vietnam. 

1965-1 972 ..................... . ............ . 

Charts 

PilI· 

145 

151 

154 

1. Chain of Command for MACV Operations. . . • . . . . . . . . . . . . 5 

2. Legal Organization of U.S. Anny Units, Vietnam. .. . ... . . . 7 

3. Organization of the Office of the Staff Judge Advocate, U.S. 

Military Assistance Command, Vietnam, 1965-1966 ...... 9 

4. Judicial System of the Republic of Vietnam . . . . . . . . . . . . . . . 30 

Maps 

1. Location of Cou rts, South Vietnam, 1966-1967 ............ 32 

2. Combined Interrogation Centers, South Vietnam, 1968...... 128 

Illustrations 

Colonel George S. Prugh ......................... . 12 

Vietnamese Justices Hold Panel Discussion at Law Society Meeting 48 

Chapel of the Military Prison at Da Nang. . . . . . . . . . . . . . . . . . . . 58 

International Committee of the Red Cross Visits Vietnamese Army 

Prisoner of War Camp at Long Binh .. . . . . . . . . . . . . . . . . . . . . 69 

Judge Ad\locate Claims Officer Examines Viet Cong Bomb Damage 

to Billet in Saigon . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81 

All illustration are from the Office of the J udge Ad\locate General. 

xi 

LAW AT WAR: VIETNAM 

1964-1973 

CHAPTER I 

Organiza tion for Legal Services 

Th~ u.s. Military A.uista'lCe Command, Vietnam 

The development of a law firm is dependent on the needs of the 

firm's major clients. This is true in the Army as well as in civilian 

practice. The how and why of the organization for legal services in 

Vietnam. then. is more readily understood by first examining the 

major military client in Vietnam-the U.S. Military Assistance 

Command, Vietnam. 

In August 1950 the United States sent a small military scaff to 

Vietnam to assist the French in teaching Vietnam forces the use and 

maintenance of U.S. military equipment furnished under the Mutual 

Defense Assistance Act of 1949. Chiefly technicians. these advisers 

were not organized in regular military units but functioned as an 

eXlen~ion of the U.S. diplomatic mission in Saigon to which they 

were assigned. By 1953 the United States had between two and three 

hundred military advisers in Vietnam, but no military lawyer had 

been assigned. 

In 1959 the fim Staff Judge Advocate, Colonel Paul J. Durbin of 

the Judge Advocate General's Corps, was assigned for the U.S. Army 

element of the Military Assistance Advisory Group, Vietnam. The 

U.S. Military Assistance Command, Vietnam (MACV). was created 

8 February 1962. The Military Assistance Command was made directly responsible for the command, control, and logistical support of 

the steadily increasing number of U.S. military advisers, technicians, 

and staff personnel who were being assigned to Vietnam. 

When the first U.S. Marine and Army infantry units were committed to combat in 1965. the U.S. Military Assistance Command, 

Vietnam, was serving as an allied headquarters in a major theater of 

operations in which multinational forces were engaged: an operational headquarters for U.S. Army, Air Force. Navy, and Marine units 

in combat in Vietnam, where major ground, sea, and air combat 

operations in Vietnam were planned, authorized. and executed under 

itS command; and an extension of the U.S. diplomatic mission. The 

Commander, U.S. Military Assistance Command, Vietnam, served 

as the military member of the U.S. Mission Council for purposes of 
4 LAW AT WAR 

co-ordinat ion with the chief of the mission on all matters relating to 

U.S. military acti vities in Vietnam. The relationship between the 

Military Assistance Command and the U.S. Embassy was always 

very dose. The commander mel with the U.S. Ambassador and the 

highest offi cials of the government of Vi etnam almost daily. and 

several staff sections of the command, including the Staff Judge AdvocalC, were in constant contact with officers in the embassy. The U.S, 

Military Assistance Command also directed the U.S. advisory effort. 

All U.S. military advisers in Vielnam were assigned to the command 

and functioned independently of regular U.S. troop units. 

The U.S. Military Assistance Command, Vietnam, was a subordi· 

nate, unified command under the operational control of the Commander in Chief. Pacific. (Cllort 1) Its commander. an Army general, reported direclly to the Commander, U.S. Forces, Pacific. a 

Navy admiral, who in turn reported directl y to the Department of 

Defense. The MACV staff sections and advisory teams consisted of 

military personnel from each branch of the armed services who were 

assigned directl y to the Military Assistance Command. Vietnam. By 

1966 each service component of the command also had a major subordinate headquarters for command and comrol of the major troop 

units or that 5CTVice-U.S. Army. Vietnam, U.S. Naval Forces, Vietnam, the III Marin e Amphibious Force. and the 7th Air Force. 

Each of the service elements was self-sufficient in terms of logistical 

and administrative support, and all combat, combat support, and 

service units stationed in Viemam were assigned to one of the service 

components. 

The organization for lega l services in Vielllam paralleled the command structure. The MACV Staff judge Advocate, an Army colonel, 

was the lega l adviser to the Commander. U.S. Military Assistance 

Command, Vietnam. and was the senior Army judge Advocate in 

Vietnam. The staff of the MACV Staff judge Advocate. composed or 

attorneys and clerical personnel from the Army, Navy. and Air Force. 

provided legal services to the MACV staff and advised the Vietnamese legal agencies. 

This organizational struCture existed until the last year of U.s. 

participati .. m in the war. In November 1972, as part or a consolidation 

plan for U.S. Military Assistance Command. Vietnam. and U.S. 

Army, Vietnam, judge advocate resources of both were reorganized 

as U.S. Army, Vietnam- Military Assistance Command. Vietnam, 

Support Command. (Chart 2) No change in judge advocate missions 

or functions resulted. even then, howe\'cr, and the sen ior sL1ff judge 

advocate in Vietnam assumed two roles, lega l adviser to the Commander, U.S. Military Assistance Command, Vietnam, and his sta ff 
CHART '-CHAIN OF COMMAND FOR MACV OPERATION S 

U.S . ... rmy 

VI.tn,m 

. 

U.S. Army 

Unit. 

Comm,nd'. In Chllf 

(Th. PrHldlnl) 

s.c"tlry 01 Dllln ... 

Command •• In Chl,1 

P~IIIc: 

Comm.nd .. 

U.S. Mlllt.ry ..... I.I.nC. Command 

VI.tn,m 

/ 

H .. dClu'rt.~ St,1f 

I 

U.S. N,va l 

fore .. Vlllnim 

. 

U.S. NIVY 

Units 

· 

· 

• 

• 

• • ~ 

· • 

· • "'dvlu~ 

• • 

· • 

I 

7th "'Ir Force 

U.S. AI, fore. 

Unit. 

I 

III M .... n. 

Amphlblou. 

fore • 

U.S. M"ln. 

Units 
LAW AT WAR 

and senior staff judge advocate for units of U.S. Army, Vietnam. The 

OHice of the Staff Judge Advocate, USARV·MACV Support Command, continued to provide legal services to all Army units during 

the sixty.day troop withdrawal period established in the Agreement 

on Ending the 'Var and Restoring Peace in Vietnam. 

Each of the service elements of the Military Assistance Command, 

Vietnam-U.S. Army, Vietnam, 7th Air Force, U.S. Naval Forces, 

Vietnam, and III Mari ne Amphibious Force-had corresponding 

judge advocate support at each level of command. Each major U.S. 

Army, Vietnam, unit--(orps, fi eld force, division, support command, 

brigade-and major subordinate commands of the other several com· 

ponents had its own judge advocate office capable of providing all 

necess.1ry lega l support for the command. 

Like the vast majority of military personnel assigned to Vietnam, 

judge advocates served a twelve months tour o{ duty. MACV judge 

advocates were assigned directly to that headquarters but all Olher 

Army judge advocates sta tioned in Vi etnam were initially under the 

control of U.S. Army, Vietnam, headquarters, from which they could 

be reassigned thereahcr. Whil e conditions in Vietnam differed from 

those experienced by judge advocates in other parts of the world at 

that time, the legal services provided by the U.S. Army, Vietnam, 

judge advocates were basically the same as those supplied on any 

Army post any'vhere in the world-trying courts·martial, advising 

commanders on military justice procedures and other legal problems, 

providing legal assistance to all personnel, administering the claims 

program, writing military affairs opinions, and revie\ving staff actions 

and administrative boards for legal sufficiency. 

The MACV Jlldge Advocates 

The year 1965 was a watershed for legal organization in Vietnam, 

as it was {or the entire U.S. military force. During the first few 

momhs there were only seven American military lawyers in Vietnam. 

All were stationed in Saigon. One lawyer each served the Army, 

Navy, and Air Force components of the U.S. Military Assistance 

Command, Vietnam; the other four were on General William C. 

\Vestmoreland's sta ff. In early 1965 {ew courts-martial were tried in 

Vietnam, and crime was not a serious problem. The U.S. Military 

Assistance Command was responsible to the Army for the administra· 

tion of claims for all services. The Staff Judge Advocate advised the 

embassy on legal matters, and the MACV legal staff enjoyed a good 

rappon with the Vietnamese lega l community. The legal problems 

concerning taxes, real est. "He leases, black market activities, foreign 

claims, and drugs. which were to be of mutua l concern to the U.S. 

Milit...1ry Assistance Command, the embassy. and the Vietnamese 

governmelll in later years, had not arisen, or were not yet serious. 
CHART 2-LEOAL ORGANIZATION OF U.S. ARMY UNtTS, VIETNAM 

Commlndln. Ga nlrll 

Stl" Jvdal Advoull 

Commlndlr 

U.S. Mlllblry 

Asslll.nce Comm.nd 

Yilltn.m 

USAFlY Unlll 

I 

Olvilloni 

SI.tt Judae Advouie 

MACV 

St.tt Judie Advoute 

USA-flY 

Stitt Jud., AdVOClte •••• , 

St.tt Jvdae Advoc,t, 

. I ! I 

:. : •• _ ........... _ ........... J. • _ •• _ ••• _ •. _ raa. __ •• _. _ •• 

!. 

~. _ ••••••••• .O! 

.. _&a .... _ •• Teo;hnle. 1 SUP41 rvllion 

Command 
8 LAW ATWAR 

Beginning ill March 1965 with the rapid buildup of U.s. and 

allied troop strength, legal work increased considerably and new 

areas of responsibility were added to the duties of the ~rACV judge 

advocates. By mid· I965 the MACV Office of the Staff Judge Advocate 

had assumed the general form it was to retain for much of the warthe Staff Judge Advocate, a Criminal and Disciplinary Law Division. 

Claims Division, Administr:ltivc Division, Civil Law and J\'lilitary 

Affairs Division, Advisory Division, and an International Law Division. (Chari J) 

The SlaO Judge Advocale 

The SL'lff Judge Advocate was the principal legal adviser to the 

MACV commander and staff sections on all matters jXrlaining to 

law, including U.S. ci,·jl and military law, international law, and the 

laws of Vietnam and neighboring states. (See API)t:ndix A.) He was 

responsible for command policy. supervision, and control of all military law activities for Headquarters, Military Assistance Command. 

and commands subordinate to it. He performed for the headquarters 

all statutory functions required of a staff judge advocate under the 

Uniform Code of Military justice. He maintained an office of record 

for foreign agreements entered into by the command. Foreign agreements maint.1ined by the Staff judge Advocate's office included formal treaties between the U.s. and Vietnam on such matters as agricultural commodities, atomic energy claims, defense, economic and 

technical co-operation, informational media guarantees, maritime 

allairs, publications, surplus property, taxation, telecommunication, 

and trade, as well as informal working arrangements between U.S. 

field commanders and local Vietnamese authorities. A judge acl,'oca te 

mission peculiar 10 Vietnam was the Staff Judge Advocate's responsibility for developing and co-ordinaling plans and providing advice 

concerning the role of law and lawyers in counterinsurgency, resources comrol, and the prosecution of the war. In his advisory 

capacity the St.1tr Judge Advocale was the senior military adviser to 

the Vietnam Directorate of Military justice and to other military 

legal offices of the Vietnamese armed forces. The primary advisory 

objectives were the revision, development, and implementation o[ 

the Vietnamese code of military justice, the planning. co-ordi nation, 

training, and direction o£ the VielOamese judge advocates, and the 

administration of military Jaw and discipline. The Staff Judge Advocate also maint.1ined liaison with and assisted VielOamese civil legal 

agencies. 

Crimj,wl and Disciplinary Law Division 

In lhe early days of the U.S. Military Assistance Command. Vietnam, lhis division performed the traditional military justice work of 
CHART 3----OROANlZATION OF THE OFFICE OF THE STA

U.S. MILITARY AsSISTANCE. CoM.MAND, VmTNAM

SUofl Jud •• Ad~te· 

Deputy SUofl Jud •• Advoute 

Enlisted Men 1 0fIi ..... 2 

J I 

Crlmlnll end Claims Division 

DIsclplln.ry Law Division 

Enlisted Min 3 OfIlea .. 2 

Enilited Men 1 OMea ... 1 

Chili law .nd Military Advisory Dlvlslon 

AfI.l ... Division 

EnUsted Men Office ... Enlisted Man 0 Officers 1 , 2 to S 

J 

I CorP1' IlCo'l» Itl Co.

"The Ilze Ind O,..nllltlon of thl office of the St." Jud.1 Advoc.te lI.ded sll~tJy .tter 1966. 

Crlmln.1 Law (MUltary Justice) WII combined witt! Intam.tlonal La ..... 

- 'n addition to Amerlcan ptfSOnnal, the .. w .. one Vietnam ... attorney .dvlser, • IIbrarlan·rece

.ttached to thl Siafl Jud.e Advocat.'s office. 

o The Jud.e Advoc.te .dvI ..... In I, II and IV Corps wa .... Ii.ned to the MACV COqJI advisory 

lud.e advocate advi .. r lor HI Corps ....... member of thl SaIIOf'l St.fI Jud •• Advocate's ofPi .... 
10 LAW AT WAR 

the command. observing the Slate of discipline and undertaking 

actions necessary to the functioning of military criminal law. Later 

the division was combined with the Imernational L1W Division. At 

that time the di vision's military justice responsibilities consisted o( 

furniShing advice and guidance to judge advocates and to command· 

ers and staffs of subordinate commands in the disposition of dis· 

ciplinary and criminal matters; keeping the commander and the 

MACV staff, as well as senior MACV advisers and advisory groups. 

informed on the state of discipline in the command; and recommending appropriate corrective action as necessary. 

CivilLAIIJ and Military Affairs DilJision 

The Civil Law and Military Affairs Division advised and assisted 

the MACV staff and other agencies in such matters as currency control, black market operations, the withdrawal of milit .... ry privileges 

from civilian contractor employees, the denial of access to military 

installations and facilities to U.S. civilians, and determinations of 

unacceptability for employment under U.S. government contracts. 

The division acted 3$ liaison with the American Embassy, the U.S. 

Overseas Mission, the U.s. Agency for International Development, 

and the consul general on legal matters involving the Military Assis· 

tance Command. The di vision rendered advice on the lega l status of, 

and military jurisdiction over, civilian personnel accompanying the 

armed forces. It appointed trial observers for U.S. civilians being 

tried in Vietnamese courts and monitored such cases. It reviewed 

MACV directives prepared by other staff sections. The division served 

as lega l adviser to the Centra l Purdlasing Agency, Vietnam. and to 

the Vietnam Regional Exchange, the agency which imported, distributed, stored, and sold all post exchange and base exchange items 

in Vietnam. In accordance with the terms of the Pentalateral Agree. 

ment-a mutual military aid paCt signed by the United States with 

Vietnam, Laos, Cambodia, and France-the division acted to ensure 

exemption of U.S. agencies and U.s.-invited contractors from import 

taxes, customs duties, transportation taxes. inspections, and other 

forms of regulation by the Vietnamese government over imported 

goods and equipment which would adversely affect the U.S. mission 

in Vietnam. Finally, the division rendered advice and opinions on 

real estate matters such as the rent-free use by the United States of 

prOpe'l"ty owned by the governmem of Vietnam, compensation to 

owners for land appropriated for use as military bases or facilities, 

commercial kdses of property to U.S. governmenta l agencies (there 

were over 1.300 such leases in Saigon alone by 1970), and real 

property disposal. 
ORGANIZATION FOR LECAL SERVICES II 

A dvisory Division 

Although MACV judge advocates had been associating with 

Vietnamese military and civilian attorneys for several years, the 

Advisory Division of the MACV St:tff Judge Advocate's office was not 

organi7.ed until August 1965. The purpose of the Advisory Division 

was to continue the advisory work with the Viemamese thai had been 

carried on in an informal manner by prt:vious judge advocates, and 

to augment the advisory work in Saigon by .sending judge advocate 

advisers into olher regions of SOllth Vietnam. Broadly staled, the 

mission of the Advisory Division was tQ improve the effectivenes.'I of 

the Vietnamese armed forces military law and procedures and to 

establish a popular military and civilian base for respect for law 

and order. 

The Advisory Division was responsible for acquiring, compiling, 

analyzing, and reporting on data concerning the functioning of 

Vietnamese military law and legal institutions, including military 

courLS, military field courLS, tribunals, military pri.'<ms, jails, detention centers, rehabilitation centers, re·edl.lC3lion centers, and the legal 

activities of the Vietnamese law enforcement agencies as they affected 

military law. As information was received and evaluated,' recommendations were made to the Staff Judge Advocate for improvemenu 

believed possible in the Viemamese military justice system. The 

division also acquired, translated, cataloged, published, and main· 

tained files of Vietnamese dea'ees and other laws. 

Acting on bell.'llf of the Staff Judge Advocate, the Advisory Division maintained liaison with elements of the VietnamCie civilian 

legal communil.Y sudl as the Ministry of Justice, the civilian couru, 

and the School of Law, as well as with the Vietnamese armed forces 

legal service, the Directorate of l\.fijitary Justice. Work with the 

Direclprale of Military Justice included advising and assisting Viet· 

namese judge advocates on technical legal matters on requesl; reviewing and advising on the Viemamese jl,'dge advocate annual budget 

request and table of organization and equipment; advising on the 

operation of and obtaining supplies and equipment for the military 

COurlS and prisons; and assisting in improving military justice and 

other law instruction in lhe Vietnamese anned forces schools and 

training centers. As a matter of course, the Advisory Division al!;() 

assisted the other divisions of the MACV Staff Judge Advocate's 

office and other MACV staff sections in matters pertaining to Vietnamese law, For example, the chief of the Advisory Divi~ion during 

1972 and 1973 was a member of a Joint General Staff committee 

composed of representatives of the Military Assistance Command and 

the Republic of Vietnam armed forces to draft a mobili7.ation law 

and also to prepare a demobili7.atiou study affecting the armed forces 

of the Republic of Vietnam. The Judge advocate field advi~rs, who 
12 LAW AT WAR 

COLONEL GEORGE S. PRUGH, 

Staff Judge Advocate, 

1964-1966. 

(Photograph taken after 

his promotion to major general.) 

at various times were stationed in Hue, Oa Nang, Pleiku, Nha Trang. 

and Can Tho. as well as in Saigon. worked with the Vietnamese 

judge advocates who administered the military courts and prisons in 

each of the four corps areas in South Vietnam. The judge advocate 

field advisers assisted their Vietnamese counterparts in all matters of 

U.S.-Vietnamese legal relations; established contact with local Viet· 

namese civilian judges, lawyers. and prosecutors; monitored Vietnamese legal activities in the corps areas and rendered reports on 

legal conditions in the corps areas to the MACV Judge Advocate in 

Saigon; and performed as command judge advocates for the MACV 

advisory units in the corps areas. 

International Law Division 

The International Law Division reviewed and assisted in drafting 

and interpreting international agreements between the Commander, 

U.S. Military Assistance Command, Vietnam, and the Vietnamese 

armed forces and between the Commander, Military Assistance 

Command, and Free World forces. This division rendered opinions 

on international law for the command, including the Law of the Sea, 

the Geneva Conventions of 1949, and the Laws of War. It main· 

tained files of investigations of alleged war crimes and atrocities 

committed by or against U.S. military or civilian personnel in Viet· 

nam. It assured that prisoners of war who had been captured by U.S. 

troops and turned over to the Vietnamese government for detention 

were being provided the legal rights accorded them by the Geneva 

Conventions. The International Affairs Division provided instruction 

to newly assigned MACV personnel in the Geneva Conventions and 

Code of Conduct. 
ORGANIZATION FOR LEGAL SERVICES 13 

One significant twist in the development of the role o[ judge 

advocates in Vietnam happened in mid-1965 and shaped the func· 

tioning of the MACV legal office in a manner nOt anticipated. It 

came about through a judge advocate staff study completed on 31 

May and designed to explore the role of the civil law system in 

counterinsurgency operations in Vietnam. The following is quoted 

from its opening paragraph: 

In the course of examining the legal system of Vietnam to detennine 

where improvements could be made to make the system more effective in 

the prosecution of the war against the Viet Cong, it })e(;omes apparent that 

a great gap exists between the work of the police and the work of the 

judiciary. In short, apprehension of Viet Cong becomes more efficient but 

the disposition of their cases is far from satisfactory. Some reflection on this 

specific problem leads to doubts concerning the utility of the civil code 

system generally as an effective tool against insurgency. At the same time 

it becomes apparent that the place of law in the counter.insurgency efforts 

is not ..... ell understood or studied, despite the fact that the establishment of 

a rule of law and order in the society is probably the most important goal 

that could be achieved. 

A few days earlier the Staff Judge Advocate, Colonel George S. 

Prugh, had reported to a visitor from the Deputy Chief of Staff for 

Military Operations, Department of the Army: 

The US military lawyers have been trying to inject some of the leadership 

needed to develop the bench and bar as indicated above. The task is too 

large for them to accomplish in the light of their regularly assigned tasks. 

They can still be of material help but it is clear that there should be a full· 

time civilian effort to generate the programs desired. It is estimated that 

three full· time practitioners, devoting their entire effort to an advisory 

program for the civilian bench and bar, could make a real breakthrough 

within t ..... o years and have their influence widely felt within five years. One 

of these could be located in the central part of Vietnam, spending consider· 

able time at the courts and law school at Hue. The second would do the 

same for the south, also teaching at Saigon Fac.uhe de Droit, and the third 

would be the chief and coordinator with the Minister of Justice and the 

Bench. From these three could come the plans for contractual assistance 

in the recodification program, the training of indigenous experts, and the 

handling of technical assistance from CONUS. If recruitment of civilian 

practitioners proves an obstacle possibly Anny officers on excess leave 

would be available. 

There cannot be a successful counterinsurgency program until there 

is established a respect for law and order. This can be done with establish· 

ment of an effective system of law, law enforcement, and public education 

in the place of the legal institutions and the citizen's role related 10 them. 

This is a long.tenn goal but it cannot be started after the military effort 

is completed. It must be simultaneous ..... ith the military operations against 

the VC and must be stressed in the areas where a sufficient degree of 

pacification has been attained to pennit the legal institutions to function. 

Such a program encompasses public education from the grade schools up. 

It also means considerable improvement in the efficiency and relation· 

ship betw~n the National Police and the court apparatus. It requires com· 
)4 LAW AT WAR 

pletely hont'St, unifonn, t:onslstcnl and impartial adminutration of the law. 

And it nct'd5 the development of laws which are reflective of the popular 

notions, customs, traditioll!, and culture .... 

There is a particular warning available to us in any civil code country 

where one or more of the following exist: ( 1) the law is an engrafted one, 

p:wed without local adaptation from a colonial power in relatively recent 

times; (2) there is no mc:lhod for the general public to express itself in 

legal matters, such as through elections of officials or Jaws; (3) where the 

legal institutions do not function in the rural areas; or (4) where the bar 

is too small, intimidated, a "dosed shop," or collectively voiceless in the 

affairs of the government. 

These ideas pointed to a role for the military lawyer heretofore 

unthought of. a role that involved the use of law and legal institu· 

tions in a positive sense to defeat the insurgency. The fi rst step was 

for the military judge advocates to learn about the existing law and 

legal institutions in Vietnam and how they functioned. 
CHAPTER II 

The Vietnamese Legal System 

From the very beginning, judge advocates assigned to Vietnam 

had worked to become familiar with the laws of Vietnam, the legal 

system, and those who administered it. Clearly it was not enough for 

lawyers merely to playa passive role of problem prevention. The U.S. 

judge advocate mission in Vietnam was twofold: to defeat the enemy 

of the Republic of Vietnam and to assist the Vietnamese to develop 

their own institutions in the midst of the military crisis. The MACV 

judge advocates, working closely with their Vietnamese counterparts, 

sought ways in which law could be employed, including the way to 

use law as an effet::tive weatx>n in the struggle against Communist 

insurgency. They also labored to help theiT fellow attorneys strengthen 

the Vietnamese legal system in a manner which would enable it to 

be ttuly responsive to the needs of the government and the people. 

The accomplishment of these goals required not only a knowledge of the principles of law found in the United States and in inter· 

national law, but also a thorough grounding in the legal processes of 

the Republic of Vietnam. This last was an especially formidable task. 

Vietnam was little known to most of the American Army, and certainly not to the U.S. legal community. There was a scarcity of 

readily available English source material suitable for studying the 

legal system. The fact that Vietnamese judicial organi7.3tion was pat. 

terned upon the French system provided some comfort to those who 

were familiar with the civil law systems of Europe. but it soon 

became apparent that while the Vietnamese legal system might be 

French in structure it was uniquely Vietnamese in outlook and 

operation. Law is rooted in history, and those who wish to utilize the 

law as a tool for social development must first understand the society 

from which the law evolved and in which it must function. The 

requisite knowledge and insight for the task at hand would be 

gained by judge advocates only through day·to-day, step-by-step personal observation and involvement, in the midst of many distract.ions. 

In this continuing educational process the diligence of American 

attorneys was complemented by the patience, ability, and professional 

attitude of the Vietnamese attorneys and jurists with whom U.S. 

judge advocates worked on a daily basis. As mutual understanding 
16 LAW AT WAR 

grew, mutual respect increased. Throughout the course of the war 

the co-operative efforu of American and Vietnamese attorneys have 

accrued to the benefit of both nations and to the credit of the 

lega I profession. 

The Vietnam Environment 

The Republic of Vietnam is a long, narrow country on the 

easlern coast of the Southeast Asia mainland. Roughly the size of 

Florida. its terrain features are much more diverse. The Annamite 

Cordillera, a rugged jungled mountain chain, stretches for two-thirds 

of the length of the country and occupies most of the land. Border· 

ing the mounmins, along the coast of the Somh China Sea, is a narrow, fertile strip of lowland. South of Saigon and covering the 

southern one-third of the country is the Mekong Delta, a vast, semi· 

flooded alluvial plain which has long been a major rice producing 

region for Southeast Asia. The principal road and rail networks run 

north-south. hugging the coast. Route I, the most important high. 

way. is a two-lane paved road extending most of the length of the 

country. While there is heavy local traffic on the roads, most longdistance travel is by air. The mountainous regions west of the coast 

are largely undeveloped and insecure. 

It has recently been estimated that South Vietnam has a popula. 

tion of eighteen million. which would be an increase of about three 

million in the last decade. The greatest numbeT of people are con· 

centrated in the Mekong Delta and along the narrow coastal plain. 

The majority of the people are ethnic Vietnamese. but there are 

several minority groups, the mOSt significant being the Montagnards 

of the Central Highlanw and the Chinese of the Cholon district of 

Saigon. Each of these groups maintains its own social customs and. 

to a certain extent. its own laws. While seldom doctrinaire in their 

beliefs. the Vietnamese profess many religions. Most are at least 

nominal Buddhists. but the Catholics. who compr~ about 10 percent of the population. have been prominent in the political leadership of the country. Several minor sects have also been politically 

active. even to the extent of supporting private standing armies. sllch 

as those of the Hoa Hao and the Cao Dai. 

Perhaps the most significant development in Vietnamese society 

(during the fifties and sixties) has been the growth of the refugee 

population. The first great wave of Tonkinese reFugees fled from 

the northern part of Vietnam shortly after the Communists came to 

power. While many of these people were peasants and laborers. many 

others were educated teachers, professionals. and political figures. 

This leadership class was generally anticommunist. The Tonkinese 

from the north quickly became active in the political affairs of the 
VIETNAMESE LEGAL SYSTEM 17 

south, where their activities often aroused the resentment of nati ve 

southern leaders who were Cochin Chinese. This rivalry was a significant factor in the political turmoil of the early sixties in Saigon. 

A second wave of refugees was created during the widespread 

heavy fighting of 1965·197 1 in the south of the republic. Thousands 

of South Vieblamese were uprooted several times in the course of 

successive campaigns. The influx of refugees fleeing from the countryside placed an enormous burden on the city governments and social 

agencies which care for the refugees. As families became separated, 

possessions lost, and people crowded into the refugee camps, it was 

only nalural that respect for law and order, already much diminished, 

should deteriorate further. The problems of administering to the 

refugees' needs mounted. 

Administratively. South Vietnam is divided into provim;es, 

roughly similar to U.S. coumies. Each province is subdivided into 

districts. All but the most remote districts have at least one major 

town and many villages. which are made up of hamlets. The Vietnamese are an agrarian society whose loyalties have always been 

decidedly local. For those who have not been uprooted by the war. 

life centers around the family and the hamlet. Beyond the village 

any sense of personal responsibility toward society tends to dissipate 

rapidly. While a spirit of nationalism is growing, it is as yet but a 

thin veneer on the daily lives of many of the people. There are 

thousands of villages in Vietnam. and often the laws most relevant 

to the villagers in their deali ngs with each other are the laws of local 

custom, based on ancient tradition and strongly influenced by spiritism. These laws are interpreted and administered by the village 

leaders, who are the only legal authority for most of the population. 

Thus the ancient Vietnamese adage, "The laws of the emperor yield 

to the customs of the village,·' continues to be a valid reminder for 

anyone attempting to analyze the role of la, ... in Vietnamese society 

today. 

The Chinese Influence 

A major influence on the Vietnamese attitude toward law is 

Confucianism, introduced by the Chinese during the eleven hundred 

years they dominated Vietnam before 938 A.D. Confucianism is an 

ethical concept which the Chinese applied to societal organization 

as well as to their personal Jives. The patriarchal family was the 

model for a perfect society. and Confucianist doctrine prescribes for 

its support the duties and obligations owed by child to parent, wife 

to husband, younger to older, and of all to the father as the senior 

representative of the famil y group. As the father-figure of the empire, 

the emperor exercised absolute parental authority over his subjects 
18 LAW AT WAR 

through a bureaucracy of mandarins-his personal representatives. 

In lhe person of the emperor resided all political. religious, and legal 

authority. His nearly omnipotent role was the logical result of Confucianist doctrine that taught nOt to follow certain abstract principles. 

in the Western sense, but to accept the authority of certain people. 

The notions of individual rights and abstract justice were absent. 

The emphasis was upon the duties and relationships between people 

to achieve social harmony and stability in lhe state. 

A cemral precept of Confucianism is the achievement of social 

harmony through adaptation: the ideal sol ution of conflict is settlement by negotiation and adjustment; any position can be cilanged; 

no commitment is final. This phi losophy has remained a dominant 

theme of society and a key to the Vietnamese view of life. A prudent 

man learns to adapt to Changing circumstances and tries to ameliorate unpleasant situations. As political fortunes change. so do (Xllitical 

loyalties; such reversals of allegiance are considered in terll'U of 

prudence rather than disloyalty. 1£ you ask a Vietnamese a question 

and he thinks that the true answer might cause you (0 feel embarrassment or anger. he may respond in a manner he hopes will please 

you, even if the answer does not correspond to the facts as he knows 

them. Such responses are considered in tenus of politeness, rather 

than untruthfulness. While honesty is an admired virtue, in the 

Vietnamese scale of val ues it would be considered foolish to sacrifice one's own well-being or family interests {or the sake of being 

scrupulously fair to strangers. When the U.s. military lawyers looked 

at Vietnam in 1965 they recognized lhe need for a thorough understanding of Vietnamese values and mores. The same could be said 

of Vietnamese legal philosophy and jurisprudence. 

The achievement o( independence £rom the Chinese had not 

substantially changed Vietnamese law. Under the Chinese, Con· 

fucianism was almost synonymous with the law. It was the official 

state ethical code and the dominant intellectual tradition of the 

Vietnamese mandarins, the scholar·bureaucrats who administered 

the COllntry. The Vietnamese dynasties that succeeded the Chinese 

retained the form and apparatus of the mandarin government, in· 

c1uding the laws by which the Chinese had ruled Vietnam. The Viet· 

namese Hong Due Code of the Le Dynasty, promulgated in the 

fifteenth cent ury, was modeled on the Chinese T'ang Dynasty (618-

807) Code. The Vietnamese Cia Long Code of 1815 was a bodily 

re-enacunent in the Chinese language of the Manchu Dynasty Code 

of the seventeenth century. The scholars who adopted the Chinese 

codes for Vietnam may have felt they were perfomling a valuable 

service, but imposition of the foreign law served to alienate the 

people from the law and from those who administered it. 
VIETNAMESE LEGAL SYSTEM 19 

The Fre1"h blfluence 

French rule imposed yet another al ien layer of law on the Vietnamese but it did not totally replace Chinese law or ancient customary law. The French admi nistered Vietnam as three separate regions: 

T onkin, now North Vietnam, the capital at Hanoi, as a protectorate; 

Annam, central Vietnam, its capital Hue, as a protectorate; and 

Cochin China, southern Vietnam, its capital Saigon, as a colony. One 

result is that each region today has its own legal code, and there is 

still no single comprehensive Vietnamese civil, criminal, procedural, 

or other code. 

The French protectorate at Tonkin made few concessions to the 

appearance of native autonomy. The important executive powers 

were vested in a French Resident-Superior at Hanoi who governed 

in the name of the emperor. French resident officers in the larger 

towns diret:lly controlled the loca l admininration. They attempted 

to work through the mandarinate and to preserve the institution for 

administrative purposes, but on terms consistent with French needs. 

The traditional judicial system was retained and applied using the 

mandarinate as a front. By degrees Tonkin was subjected to modified 

French codes: a Code of Criminal Procedure in 1917, a Penal Code 

in 1921, and a Civil Code in 193\. 

In Annam the emperor and his officials were left in charge of 

internal affairs, except for customs and public works, but they functioned under the close scrutiny of the French, whose rule was somewhat less direct than in Tonkin. All of the acts of the emperor, except 

on some minor mallers of religion, eventuall y became subject to 

French approval. In Annam, the Gia Long Code was applied until 

promulgation of the Penal Code for central Vietnam in 1933, a 

Criminal Procedure Code in 1935, and a Civil Code in three parts 

between 1936 and 1939. All were basica ll y French codes modified to 

suit local customs and the req uirements of administration in Annam. 

The French drafters of the codes for both Annam and Tonkin went 

to great lengths to ascertain conscientiously what Tonkinese and 

Annamcse customs really were and to exclude inappropriate provisions 

copied slavishly into the Gia Long Code from Chinese texu. 

Cochin China, which had been under French domination for 

some twenty years longer than Tonkin and Annam, became in 1862 

a colony under French law, while Tonkin and Annam remained as 

protectorates, each under the nominal reign of its emperQr. Cochin 

China was administered directly by a French-staffed civil service 

under a governor and a colonial conncil. The colonial council was 

composed half of Frenchmen and half of Vietnamese, the latter elected 

on a limited suffrage and the former by the French civil serYanu 

working in the colony. As a colony, Cochin Ch ina sent iu own dele-
20 LAW AT WAR 

gate to the ChambeT of Deputies in Paris. In 1879, attempts to gOVC'll 

through a controlled mandarinate were abandoned and French 

administrators were placed at the head of each province. The mandarins had been permitted to apply the Gia Long Code as far as 

they knew it in the absence of printed texts. The French administrators applied French law and a French translation of the Gia 

Long Code, and, when these did not cover the situation, the ancient 

Hong Due Code. When French administrators were substituted for 

the mandarins, the Penal Code of France became the basis for civilian 

law umil the Modified Criminal Code was published in 1912. Many 

statutes enacted in France were interpreted as applying automatically 

to Cochin China. as to all other full colonics. The Civil Code of 

France was £oIlO\ ... ed by the French courts in Cochin China, local 

modifications having been published as early as the Precis of 1883. 

The old Vietnamese laws remained in an uncertain state of coexistence with the laws of France even after the publication of the various 

codes by the French. The applicability of the codes was not territorial, 

but ratione personae. Each person carried his own law with him and 

the regional codes applied only to natives of the region. A stranger, 

for example an Annamese in Tonkin, was subject to his own law 

in civil disputes and to French law if charged with a crime. A French· 

man, or another foreigner, would be subject to French law in all 

matters. Furthermore, the applicability of the law was, to a degr~, 

a matter of choice, as anyone could elect the protection of French 

law in place of the traditional Vietnamese law that still coexisted with 

the Frenc:h codes. There were French COurLS and Vietnamese courU, 

but the former enjoyed an overriding jurisdiction. The Vietnamese 

courts were composed of the courlS of the native provincial admin· 

istrators, sitting as magistrates as they had done under the Chinese 

system of the Cia Long Code, except that in Cochin China the 

judges of the Vietnamese courts were Frenchmen until 192 1, when 

a few Vietnamese magistrates were appointed to hear criminal cases 

according to French law in the vernacular of the accused. In civil 

cases, litigants had a choice between French and Vietnamese judges, 

even when they sought to be judged by traditional Vietnamese law in 

preference to the statutes of the colonial regime. However, if one 

party was nOt Vietnamese, jurisdiction lay exclusively with the 

French court. The only appellate courts were French, and the only 

procedure for appeal under the traditional Vietnamese system was 

by petition to the throne. 

While all of the codes published by the French for Annam and 

Cochin China were still in effect in the Republic of Vietnam, they 

were no more succC$Sful in bringing the law to the people than were 

the Chinese codes which preceded them. The conglomeration of 

customary, Chinese, and French laws and the cumbersome dual sys-
VIETNAMESE LEGAL SYSTEM 21 

tem of administration did Iiule to enhance the image of the law or 

the central government in the eyes of the average farmer in his hamlet. 

Significant advances were made under the French. but even to those 

Vietnamese who were exposed to the law and who understood its 

workings, it must have seemed that the "rule of law" meant simply 

the rules of the governing )X)litical power, imposed on a )X)pulation 

whose only participation in the lega l process was passive obedience. 

A MACV Staff Study of 31 May 1965 summarized the effect of 

French law u)X)n the Vietnamese as follows: 

Under the French an effort was made to establish a judiciary apart 

from administration, and this brought French officials deeply into the 

Vietnamese judicialsYltem, according to the 1962 Michigan State University study of RVN. ''Thus the social structure was penetrated and fractured 

at the district and village levels. The canton chiefs and village elders were 

stripped of their police and judicial powcrs, which were given to the French 

policemen and judges." This led to further separation of the people from 

the law. The Michigan State University study noted " the introduction of 

a new legal code had upset the social structure of Vietnam. The Vietnamese 

were bewildered by both the fonn and the content of the new French law, which was rigid where Vietnamese law was known for its flexibility. The 

majestic slowness of the French judicial procedures were in marked contrast 

to the quickness of traditional justice." One of the mai n Vietnamese 

grievances against thc Frcnch was the substitution of French laws for the 

Vietnamese code. "French law was completely out of harmony with traditional law and custom." 

The French heritage remains heavy in the entire legal system, military 

and civilian. The older, more renowned lawyers and judges are often found 

to be French educated, French and non-English speaking. Professional 

works are often published in Frerich. The French trappings as well as 

institutions are adapted by the Vietnamese, and these arc superimposed 

over the Vietnamese society without much change. The Code Napoleon 

inRuence is naturally strong, and the civil code system, as distinguished 

from the common law, is employed. Trial by jury is not employed, the 

technique or cross-examination is severely limited, and the authority of 

an examining magistrate is much enlarged as compared with US or common 

law practice. One fonner French governor wrotc: "We have destroyed 

the past and not built anything to replace it ... It was with a handful of 

Frenchmen. under a killing climate, that we attempted to apply our laws 

to two million people belonging to a Chinese civilization which had stood 

against two thousand years of revolution. 

Following its putative independence from France under the Elysee 

Agreements of 1949, the Vietnamese legal system remained much the 

same as it had been under the French. except that on 16 September 

1954 the courts and legal system were completely taken over by the 

Vietnamese. With the appoi ntment of Ngo Dinh Diem as premier in 

1954 and the depanure of Emperor Bao Dai in 1955 there began 

the promulgation of a long list of emergency decrees designed to 

control the population and resources and to protect the state under 

insurgent conditions. Seven different conStitutions were promulgated. 
22 LAW AT WAR 

suspended, and replaced as a result of a series of coups and countercoups. 10 1964 alone seven different governments came and went. 

The Vietnamese Constitutions 

The first constitution was promulgated on 26 October 1956, a 

year after the Republic of Vietnam was proclaimed, with Diem as 

president. It provided for separation of executive and legislative 

powers. but in practice the legislative power was insignificant. There 

was no separate autonomous judicial branch; the court system was 

under the supt:rvision of the executive branch through what was 

then called the Department of Justice. The relationship between the 

executive and legislative branches was not dearly defined, and the 

executive. under President Diem. quickly became predominant. 

Under the constitution the president was vested with broad emergency powers to rule by decree between the shon sessions of the 

legislature. and. in time of war, internal disturbance, or financial 

or economic crisis to exercise extraordinary power to institute any 

appropriate measurcs. While the constitution did provide for some 

checks on executive power, they were largely ineffectual. 

President Diem's regime came to a violent end on 1 November 

1963. victim of a successful coup. The 1956 constitution was replaced 

by a hastily drawn provisional charter on 4 November 1963. All 

executive and legislative power was placed in the hands of a Revolutionary Military Council headed by Major General Duong Van 

Minh. Since all power was centralized and exercised by the generals, 

the provisional charter had little legal significance. 

A second provisional charter replaced the first provisional charter 

on 2 July 1964. This was soon followed by a third provisional charler 

on 16 August 1964. Both the second and third charters stressed the 

supremacy of military leadership and executive power. Major General Nguyen Khanh. who had unseated General Minh in January 

1964. became chairman or the Revolutionary Military Council, which 

was the supreme organization or the nation. 

The charter of 16 August 1964 was withdrawn because of severe 

criticism that it provided for a military dictatorship. It was replaced 

by the fifth constitution, the provisional constitution of 20 October 

1964. which provided for a transfer of authority to a civilian government. The civilian governml!nt proved ineffective and relinquished 

its authority in June 1965 to a group of military leaders headed by 

Air Vice Marshal Nguyen Gao Ky. 

This group established the National Leadership Council, a ten· 

man military directorate, with Major General Nguyen Van Thieu as 

chairman, a position comparable under the circumstanccs to that of 

chief of state. On 19 June 1965 the committee named Air Vice 
VIETNAMESE LEGAL SYSTEM 23 

Marshal Ky as prime minister and proclaimed the sixth constilUtion, 

another provisional charter. 

In September 1966, a constituent assembly was elected by nation. 

wide ballot to draft another constitution providing for the return to 

civilian gm'ernmcnl. The drafLing commiuees consulted many con· 

stitutions, p..1nicularly the French, American, Japanese, and Korean. 

and were aided in their work by advice from the United States. The 

seventh constitlltion since the constitution of 1956 was proclaimed 

on 1 April 1967. It provided for a president, a bicameral legislature, 

and an independent judiciary. Checks and balances between the 

three branches wcre set Olil. 

Decree Law 

With South Vietnam in a state of almost constant warfare and 

political upheaval since 1954, the government came to rely increas· 

ingly on the use of emergency executive decrees as a means of con· 

trolling the people and resources and preserving order in the state. 

In Vietnamese terminology, a decree was an edict by the executive 

power, namely the president of the Republic or the prime minister, 

countersigned by one or more ministers. As a general rule, any 

decree had to be based on a previous law, thaI is on an act of the 

National Assembly. The president or the prime minister had the 

power to introduce a proposal of decree law. The legal office at the 

office o[ lhe president of the republic was in charge of contacting the 

minister involved for necessary discussion, exchange of ideas, and 

draft of the decree law concerned. The draft was then sent to the 

Council of Ministers for deliberation, and, if approved, it was promul. 

gated by the president and published in the Republic of Vietnam 

officia l gazeue. The decrees usually did not formally replace existing 

law, but added to it. If there was conflict between an existing law 

and a new decree, the new decree cOnlTolled. 

Decrees were often vague in language and far.reaching in scope. 

For example. the 1962 law for the protection of morality prohibited 

abortion, sorcery, animal fights, smoking by persons under age 

eighteen, prostitution, which was defined as "voluptuous activities," 

dancing, and beauty contests. Article 4 stated, "Dancing at any place 

is forbidden. All various styles of dance which are harmful to the 

good customs and nice traditions, and all beauty contestS are banned." 

There were hundreds of decrees, affecting every aspect of Viet· 

namese life. Representative decrees designed to control the resources 

of the country were those regulating the stocking of goods, the distri· 

bution of food, the provision of security measures for rice truck 

convoys, and the possession and use of pharmaceuticals, medical supplies, batteries, sulrur, steel pipes, cotton seed, soybean oil, and 
24 LAW AT WAR 

currency. Among the decrees regulating the life of the people were 

decrees placing strict controls on the press. requiring government 

permission for all meetings. including family gatherings. enlarging 

police p:>wen to search, seize. and arrest, and controlling the use of 

roads and other IranSpOTlalion facilities. Decrees aimed most directly 

at suppressing insurgency were those which defined crimes againSt 

the st.,te security. forbade membership in the Viet Cong. defined and 

punished "subversive aclS," defined and prescribed the death penalty 

for "hooliganism" and other offenses, declared a state of emergency. 

declared a state of siege, declared martial law. and dedared war. 

(See Appelldix n .) 

A sun'cy of the decrees does, however. reflect the efforts of the 

various governments of Somh Vietnam to meet the insurgency and 

invasion threats and at the same time to preserve a reasonable 

measure of freedom, disrupting the normal pauerns of life of the 

citilens as little as necessary. and giving considerable obeisance to 

formalism and legal reasoning. which Vietnamese officials. jurists. 

lawyers, and politicians believed their legal institutions required. 

That the efforts frequently failed was due to a variety of reasons, 

one of which was the basic inability of the law enforcement machinery to take on the tasks necessary to support wartime decrees in a 

war-disrupted country. Another reason was the lack of tradition to 

support obedience to or respect for the law. A third was that often 

the decree sought to build upon a foreign . primarily French. law 

without full knowledge of that law. its modernization. or its wartime application. There was also an app.1rent belief that severesounding laws would not have to be applied as threatened. It is 

noteworthy that throughout most of the war the decrees. and the 

courts in enforcing them, declined to take the position that a stme 

of war existed or that wartime penalties should be imposed. 

From a legal standpoint, among the most controversial decrees 

were those that provided for the detention of individuals who were 

considered dangerous to national security. This category of civilian 

security suspects consisted of civilians arrested by the police or 

security guards, or persons detained as a result of military operations 

who were not readily classifiable as innocent civilians or prisoners 

of war. Civilian security suspects were initially investigated by the 

police. If it appeared that they were innocent. they could be released 

by the police chief. the district chief, or the province chief. If there 

was sufficient evidence for trial they were turned over to the military 

courts. which, as in most civil law countries, had jurisdiction over all 

national security offenses, 

If there was insufficient evidence for trial but an individual was 

nevertheless deemed dangerous to security, he was held for "process· 

ing" by the province security committee. This committee consisted 
VIETNAMESE LEGAL SYSTEM 25 

of the province chief, the deputy chid for security, the prosecutor 

(the only legally trained member of the committee), a National 

Police representalive, a Military Security Service representative, the 

sector S-2 (a Vietnamese military intelligence officer) , and one per_ 

son representing the Regional Forces and Popular Forces. These 

committees had the authority to release a suspect, to order him to 

live in a certain area, to banish him from a certain area, or to 

incarcerate him in a reoeducation center for a period of up to two 

years, such periods being renewable indefinitely. If the committee 

decided to incarcerate an individual, the recommendation was sent 

to the Central Security Committee in Saigon, wh ich forwarded it 

to the Minister of the Interior for signature. The Minister of the 

Interior. who often was an attorney or judge, was responsible for the 

internal security of the state. 

Proceedings of a security commiuee were not judicial in nature, 

although the committee could allow a suspect to be present and be 

represented by counsel. 

Periods of confinement varied: some were for as little as three 

months, others were extended beyond the original two years_ The 

duration of confinement was influenced by the inadequate facilities 

for the numbers involved. and ultimately the normal period of 

confinement for JX>litical prisoners, those considered enemies of the 

state, often including Viet Cong, was between six months and a year. 

The result was an anomalous situation in which a member of the 

Viet Cong, taken in combat and dealt with as a prisoner of war, 

could go to a prisoner of war camp, where he would be treated 

according to the Geneva Conventions of 1949, but where he would 

also be likely to remain until the war came to an end; on the other 

hand, a member of the Viet Cong picked up by the JX>lice in a city 

or village search would likely be sent to a re-ed ucation center. where 

he would be treated as a pretrial criminal, without Geneva Convention benefits, but where he probably would be confined for as little 

as six months and then set free without a trial. 

The courts played no part in sending individuals to the 

re-education centers, nor could a prisoner seek release through the 

courts. The common law concept of habeas corpus was alien to Vietnamese jurisprudence, as it is generally in the civil law system. This 

is not to say that no effort was made to prevent unjust confinement 

or to release those who might be confined without sufficient cause. 

The re-education centers were operated by the Ministry of the 

Interior, but the Ministry of Justice had constitutional responsibility 

for supervising detentions which were under its control. There was 

co-operation between the tWO ministries, and Ministry of Justice 

prosecutors were able to inspect the prisoners, review confinement 

records, and report to the Minister of Justice, who could recommend 
21i l.AW AT WAR 

that prisoners be released. A prisoner or his relatives who felt that 

a detention was unjust could complain to the prosecutor. who 

would conduct an investigation. 

Under the terms of the 1967 constitution. many of the emergency 

decrees promulgated earlier were of questionable validity. Yet with 

few exceptions they remained in effect. and additional decrees were 

promulgated, further concentrating power in the executive. On 10 

May 1972 President Thieu declared martial law. The constitution 

authorized the president to declare "a state of emergency. curfew or 

alert" which the legislature must ratify. amend. or reject within 

twelve days. but there was no specific provision for a declaration of 

martial law. Some legislators. therefore. thought the decree of 10 

May unconstitutional. but it was not rejected. On 28 June the 

National Assembly passed a bill delcb'<lting to President Thieu the 

sole power to decide by decree any necessary measures in the fields 

of security, deh-: nse. economy. and finance "for a six-month period." 

Later decrees directed measures to be taken and penalties to be 

given for violations of "security and public order during wartime or 

a state of martial Jaw." These dec..Tees were largely variations upon 

themes of earlier decrCC3 seuing forth security measures. 

The decrees were emergency political measures mken by a government at war-a war that raged the length and breadth of the 

country. where the enemy mingled with the citizenry, where political 

and social institutions were as much targets as were military forces. 

In order to cope with this situation, measures were enacted regulating 

virtually every aspect of political, economic, and social activity, 

Some decrees were detailed; others were sweeping. Generally, decrees 

gave the go\,emment sufficient authority for effective action in the 

area of national security, In terms of legal craftsmanship. the law 

and procedures prescribed were ohen Jacking in definiteness, coherence, and uniformity. The profusion of decrees alone would make 

any comprehensive analysis of their impact on the legal system 

extremely difficult. Many of the measures enacted envisioned legal 

concepts unfamiliar to American altorneys, while some decrees contained 'Western terms which had no precise correlation in Vietnamese 

jurisprudence. Some of the decrees were secret, and othen were not 

publicized. Since many previously enacted decrees and statutes 

remained in effect, at least nominally, there were inevitable conflicts 

between provisions of the different decrees. codes, and the latest 

constitution. 

Drafting executive orders. which are in the nature of legislation, 

is always a difficult task. On the one hand. the exigencies of the situ· 

ation muSt be met. but on the other hand, the measures taken must 

be within the limits of constitutional authority and should be 

reconciled with previolls policies and laws or the govemment, This 
VIETNAMESE LEGAL SYSTEM 27 

exacting work requires time, fa vorab le working conditions, and an 

adequate pool of experienced attorneys, none of wh ich was readily 

ava ilable in Vietnam duri ng tile war. 

The Mi7lislry of Justice 

Prior to the enactmelll of the 1967 constitution , the Ministry of 

Justice was the paramount legal institu tion in the governmelll, with 

authority over all courLS, judges, and prosecutors. There were statutory 

guarantees designed to promote independent decisions by judges in 

litigated maners, but the authority of the ministry included the 

power to supervise the admi nistration of the coun system, to appoint, 

transfer, and discipline members of the judiciary, and to ex.ercise 

financial control over the judicial system. Under the 1967 constitution 

the judiciary became separate and independent from the executive 

branch of the government: the judiciary was granted an autonomous 

budgel, and the Supreme Coun exercised authority over all courts 

and judges. 

Other important responsibilities of the Ministry of Justice were 

retained within the framework of the 1967 constitu tion. Acting 

through its "prosecuting judges" (public prosecutors) the ministry 

prosecuted penal actions, and it coul d particip.,te in civil actions if 

it determined such a course was warranted to protect the public 

interest. It advised the government on legal matters, drafted legisla. 

tion, admi nistered the prisons, controlled the judicial police, and was 

responsible for law reform. 

The responsibility of the Ministry of Justice as lega l adviser to the 

government was particularly significam since the various ministries 

did not have legal adv isers or lega l staffs of their own. Advice was 

requested on such matters as the civil rights of citizens. the exploita· 

tion of natura l resources, administrative Contracts, and government 

reorganization. The ministry might also be call ed on indirectl y to 

advise province chiefs and provincial adminiSlrators, who did not 

have their own legal advisers. These officials normally sought advice 

from the 7111inistry of the Interior. which could in turn request 

assistance fTom the Ministry of Justice. 

Starting in the mid· 1960s the Ministry of Justice conduc ted a 

vigorous campaign to modernize the laws and increase the ~ and 

efficiency of the legal process. In 1965 a Law Study Committee was 

named by the Minister of Justice for the purpose of unifying the 

various legal codes thaI were in effect in the country. The committee, 

which was financially sponsored by sllch organi 7.a tions as the Asia 

Foundation and the U.S. Agency for Internationa l Development. was 

chaired by the Minister of .Justice and included prominent Viet· 

namese attorneys and judges. The committee worked for three years 
28 l.AW AT WAR 

to review and redraft lhe criminal code. (he civil code, and the 

codes of criminal. civil. and commercial procedure. The unified 

code$ were forwarded to the legislature in mid·1969 for debate and 

vOle. To ensure continuation of the work of the committee, it was 

instiwtionalized as a Law Center atlached to the Ministry of Justice, 

with the Minister of Justice and the chieh of the public law section, 

(he civil law section, and the criminal law section of the ministry as 

members of the Law Center planning board. The Law Center continued the revision of the code of commerce, wh ich was begun by 

the Law Study Committee. and began work. on the administrative 

code. the code on the authentication of legal documents, and the 

code on the expropriation of properties for public use. Other projects 

slated were the revision of the military code. the labor code. and 

the housing code. 

The systematic study and revision of the laws by Vietnamese 

scholars will be a major step (oward gaining the respect of the 

people for the law. thus forging a bond between the people and the 

government. The official and unofficial. formal and informal. personal and private support of the American military lawyers in 

Vietnam has contributed substantially to this process. 

A number of steps were taken by South Vietnam to promote the 

effective administration of the law by ensuring an adequate number 

of qualified personnel to perform legal functions. After 1967 the 

Supreme Court was responsible for the regulation and supervision of 

all judges. This responsibility was fulfilled through the activities of 

the juclicial administration committee. The Supreme Court also 

established its own law and research center in 1969. Within its 

jurisdiction. the Ministry of Justice drafted regulations governing 

the careers of prosecutors and establishing the independent status of 

notaries. who were previously government officers under the control 

of the ministry. The ministry also took steps to increase the number 

of process servers in each province and to bring the judicial police 

directly under the control of the ministry. 

TIle Court System 

A direct result of the separate administration of Annam and 

Cochin China under the French is that historically South Vietnam 

has had two Court systems. one centered in Hue, the other in Saigon. 

The ultimate court of appeal for both was the Cour de CtlSSIltion in 

Saigon. but each of the twO systems administered a different code of 

laws and each had its own bar and law school. The courts in Vietnam 

adhered to the French model in that there were dual systems of 

judiCial and administrative courts. each having its own hierarchy and 

each culminating in an appeals court. The judicial courts heard 
VIETNAI\IESE LEGAL SYSTEM 29 

th~ traditional criminal and civil matters, while the administrative 

courts had jurisdiction over disputes i>e'tween citizens and the st.ate 

involving certain specialized areas of government aClion. 

The highest judicial court was the COUT de Cassation; the highest 

administrative court, the Council of State. There were also a number 

of specialized courts having cognizanc~ of cases in such areas as 

employer-employee disputes; a juvenile court; agrarian couns; and 

a court to hear landlord·tenant disputes. Before the changes effected 

by the constitution of 1967, the judicial system of South Vietnam 

was wholly a part of the executive branch of the government, with 

the Minister of Justice as executive head of the legal system having 

responsibility for organizing and supervising the courts, for admin· 

iStering the laws, and for defining the regulations governing the legal 

profession and the practice of law. While the 1967 constitution insti· 

tuted major changes with respect to the prerog-dtivcs of the newly 

cr~ated Supreme Court, the judicial system remained French in 

lOne and the functions of the lower courts were virtually unchanged. 

(Chari 4) 

Vietnamese trials are unlike those in the United States, which 

are characterized by procedural technicalities designed to protect the 

rights of the accused and direct confrontation and cross-examination 

of all pertinent witnesses before the court, and which permit aggressive participation by counsel at all stages of the proceedings. Viet· 

namese trials, lik~ those of other civil law systems, are inquisitorial 

in nature. The function of the court is not to act as referee in a 

contest between opposing counsels, but to make a judicious inquiry 

as to the t .. ClS and then to apply the law so as to achieve substantial 

justice. 

Criminal cases are processed in twO stages. The first stage of 

each case is the investigation, which may be a routine matter per. 

formed by police or other authorities, or may be an exhaustiv~ com· 

pilation and analysis of evidence perfonned by an examining 

magistrate from the prosecutor's office over a period of several months. 

Once the investigation is complete, the case is forwarded to the 

prosecutor, who determinC$ whether the case should be sent to trial. 

The second stage of the case, the trial, provides a forum for a disinterested review of the government's evidence and an opportunity 

for the court to examine the accused and call such witnesses as it, in 

its discretion, feels are relevant to the issues at hand. In simple and 

flagrante delicto cases there is liule deliberation; in serious, complex 

cases the most important piece of evidence is often a voluminous dossier compiled by th~ prosecutor's office. Witness testimony before lhe 

Court, i£ there is any, is apt to be abbreviated, with the prC$ident of 

the court asking all the questions. The president is in complete 
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VIETNAMESE LECAL SYSTEM 31 

charge of the court; the participation of counsel is limited primarily 

to argument. 

In the military courts, trials seldom last more than a day, and 

it is not unusual for a field coun to try more than a hundred desertion 

cases in a trial session of twO or three days. In the eyes of the accused 

it is the prosecutor who is the dominant figure in the proceedings. 

Defense counsel does not usually participate actively in tht' pretrial 

stage of a case; it is the prosecutor's office which gathers the evidence 

and compiles the dossier upon which the case is tried, and it is the 

prosecutor who decides whether to send a case to trial. If a criminal 

case goes to trial there is a very high probability of conviction. At 

trial the prosecutor speaks from a raised platform, equal in height to 

the court's bench, while the accused and his counsel are at floor level. 

If the accused is comicted, the recommendation of the prosecutor 

carries great weight with the COUrt in determining an appropriate 

sentence. 

In comparison with American practice, the role of ddense counsel 

seems severe ly curtailed; yet defense counsel in Vietnamese courts 

performs an important function by assisting the court to apply 

properly the correct law to a case and by ensuring that any factors 

favorable to the accused are developed before the courl. The impetus 

in a crim inal proceeding is nevertheless clearly furnished by the 

governmen(, with the prosecutor as the key figure in the administration of justice. Thus a heavy responsibility rests on the Pl'oseculOrs to 

be scrupulously fair in safeguarding the rights of the accused as well 

as those of the state in order to maintain the credibility of the system. 

This need for objectivity on the part o( the prosecutors is recognized 

by the Vietnamese, who accord them the title of "prosecuting judges" 

and classi£y them as judges rather than as practicing attorneys. (The 

prosecuting judges are members of the Ministry of Justice_ The 

magisterial judges, who determine gui lt or innocence and assess 

punishment, are members of the judiciary and are regulated and 

supervised by the Supreme Court.) 

There were five steps in the hierarchy of the judicial courts: (1) 

Cour de Ca.ssatiOtI; (2) Courts of Appeal: (3) Courts of First 

Instance; (4) Courts of Peace With Extended Jurisdiction: and (5) 

Courts of Peace (or Justice of the Peace). (Mal) 1) 

The COUT de Cassation S.1l in Saigon as the highest judicial court 

of appeal. It heard civil, commercial, and criminal appeals, and had 

jurisdiction to hear cases in which it was alleged that a lower court 

had abused its powers, was in conAict with the judgment of other 

courts in similar cases, or had made certain technical errors. 

There were two Courts of Appeal, one in Saigon, the other in Hue. 

Each was divided into two chambers, civil and criminal. Appeals 

in civil cases were heard by a panel of three judges who heard mis-
LOCATION OF COURTS 

SOUTH VIETNAM 1966 -1 967 

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VIETNAMESE LECAL SYSTEM 

demeanor cases; twO citizen assessors were added to the panel in 

felony cases. 

The Courts of First Instance, of which there were nine in May 

1967. usually consisted of a presiding judge. a prosecutor, an examining magistrate. and a clerk. 1£ the court was busy, as in Saigon, additional judges and other personnel could be added. These courts had 

jurisdiction to hear all civil, commercial. and criminal cases. They 

could also rehear cases from Courts of Peace With Extended Jurisdiction and from Courts of Peace. 

The Courts of Peace With Extended Jurisdiction, of which there 

were twenty throughout the pra"inces in 1968, had jurisdit:tion over 

civil and commercial cases and all criminal cases except the most 

serious (elonies. They also exercised control over the Courts of 

Peace. These courts consisted of a presiding judge and clerk. There 

was no examining magistrate or prosecutor. In some criminal cases 

two assistant judges might be added, but there was never a prosecutor 

present. 

The Courts of Peace consisted of a single magistrate (justice of 

the peat:e) and clerk. Frequently a district chief acted as magistrate. 

They tried minor civil cases and petty criminal offenses, conciliated 

disputes brought before them by citizens, and conducted investigations into serious criminal offenses. In 1966 approximately ninety of 

these courts had been established at district level and at some of the 

more isolated province capitals. Because of wartime conditions and 

budgetary restrictions, operations of the Courts of Peace were not 

emphasized. Endeavors were made only to provide each province 

with a Coun of First Instance. 

The Council of State was the highest coun o[ administrative 

appeal. It heard appeals from the decisions of the Administrative 

Court and the Appellate Coun of Pensions. When asked to do so it 

could render legal advice to the government and assist in drafting 

laws and decrees. The Administrative Coun heard cases brought by 

ciLizens against the government and disputes between government 

agencies. The Appellate Coun of Pensions and the two Courts of 

Pensions took cognizance of complaints regardi ng allowances to 

disabled veterans. 

The specialized tribunals were the labor courts, which heard 

disputes between employers and employees; the juvenile courts for 

trial of delinquents under the age of eighteen, except in case of 

political offenses and "hOOliganism," which were reserved for trial by 

the military field courts; the agrarian courts to handle litigation arising from agrarian reform laws: and the rent courts to hear landlordtenant disputes. Decisions of the agrarian courts were final. Appeals 

fTom decisions of the others were heard within the judicial court 

system. 
31 LAW AT WAR 

Chapler V of lhe 1967 constitution provided for a Supreme Court 

vested with "independent judida\ power" and empowered to establish and administer regulations for lhe judiciary. It staled that the 

separate responsibilities of judges and prosecutors weTe to be clearly 

delineated and governed by separate regulations, with judges under 

the control of the Ministry of Justice. The Supreme Court was given 

extensive powers of review "to imcrprcl the Constitution, to decide 

on the constitutionality and legality of decrees and adminislrative 

decisions," and to decide on the dissolution of political parties whose 

activities "oppose the republican form of government." Supreme 

Court justices could be removed from offiCI! only for "moral or 

physical incapacity. conviction, or violation of discipline." 

The first step in implementing the changes prescribed in the 

1967 Constitution was taken on 17 October 1968, when the National 

Assembly elected nine justices of the first Vietnamese Supreme Court. 

Although the constitution provided for the appointment of six addi· 

tional justices, none was nominated. Shortly after the Supreme Court 

took office the IWO existing "supreme courts," lhe COUT de Ctwotioll 

and the Council of SL.'lle, were suspended, and their functions were 

assumed by the new Supreme Court. The authority of the Supreme 

Coun was extended beyond that of the COllr de CrusaliO~1 in that the 

Supreme Court could hear and decide exceptional pleas made at 

any sL.'lge of a pending case raising the constitutionality of law, decree, 

or administrative ruling. Supreme Court decisions were binding, and 

a ruling had the effect of stopping implementation of unconstitutional 

or illegal legislative enactments, administrative regulations, or admin· 

istrative decisions from the date of publication of its decision. 

The Military Court.s 

The military courts played a prominent tole in lhe Vietnamese 

legal system. Under wartime mobili7 .. 'llion, a substamial percentage 

of the populaLion acquired military SL.'ltus, and all milit.1.ry olfendcrs 

were tried by military courts, regardless of the nature of the offense 

or the circumstances under which it was committed. Military SL.'llUS 

encompassed not only active members of the regular anned forces 

but also members of auxiliary and quasi.military organizations, and 

even some civilians who worked closely with the military. If a crime 

was committed by a military member with a civilian accomplice, the 

civilian accomplice could be tried by the military Court. Finally, all 

civilian security offenders were tried by military courts, in accordance 

with executive decrees defining security offenses and specifying the 

forum for trial. 

The chief of all legal services for the entire Vietnamese armed 

forces was the Director of Military Justice, an Army colonel who 
VIETNAMESE LEGAL SYSTE!\{ 35 

reponed directly to the Minister of Defense rather than to the Army 

chief of sta ff. (Nguyen Mong Bich, who served as director of the 

Directorate of Military Justice from 1964 LO 1966, was elected one 

of the first nine justices of the Supreme Court.) The director gave 

advice to the Minister of Defense on all legal matters; studied and 

implemented the organization, operation, and administration of the 

military courts; recommended changes to the Vietnamese Code of 

Military Justice, which is modeled on the French Code de Justice 

MiliL1ire; sllldied all problems of national and international law 

concerning the Vietnamese armed forces; and rendered legal assistance. These functions were carried OUt by the personnel of the 

Directorate of Military Justice, the Vi etnamese equivalent o f the 

Judge Advoca te General's Corps. 

There were approximately fifty military justice corps officers, 

ranging in rank from fi rst lieutenant to colonel. Most were la'''' 

school graduates, but not all had completed the probationary period 

required for Cull admission to the bar. These officers could fun ction 

as prosecutors, examining magistrates, or judges. They were assisted 

by ba iliffs, derks, and the judicial police. The directOrate was 

charged with the investigation, preparation, prosecution. and trial of 

cases falling within military jurisdiction for all of the Vi etnamese 

armed forces. The directorate also operated confinement facilities in 

each corps area for the detention of individuals awa it ing trial by the 

military courts, which were located at Da Nang. Nha Trang, Saigon. 

and Can Tho. 

The Regular Military Courts were activated by Ordinance N umber 8 of 14 May 195 1 which promulgated the Code of Military 

Justice. The presiding judge in each COlirt was a civilian. chosen from 

the local Court of Appeals. The alternate presiding judge was a 

fie ld grade officer from the Directorate of Military Justice. The other 

members of the coun were detailed from local military units. The 

prosecutor and his staff were Directorate of Military Justice personnel, but there \ ... as no military defense counsel. An accused could 

hire civilian counsel, or, if he did not have the mea ns, civil ia n co unsel 

would be appointed for him from the local bar. The jurisdiction of 

these courts was extensive. They had jurisdiction over all military 

personnel of Ihe regular armed forces. all paramil itary personnel in 

a miliL1 ry sta lUS, and even some civilians who were granted the 

stalUS of military personnel because of their connection with the 

armed forces. for violations of ll1 ililary law and ordinary criminal 

law. These courts could adjudge any penahy including the d eath 

penalty. Appeals fTom these courts were made to the Supreme Court. 

The military field courts were established by Decree Law 11/62 

of 21 May 1962 to hear expeditiously flagrante delicto cases in which 

the evidence was considered so clear or the offense was so simpl e that 
36 LAW AT WAR 

extensive pretrial investigation was not warranted. Under the Vietnamese concept, flgrantt: delicto included not only cases of individuals actually caught in the act of committing an offense, bUl also 

cases in which individuals were caught having in their possession 

"any object, weapon, material or documem which could lead to the 

belief that he is the author of the crime or an accomplice thereof," 

Decree Law 4/66 assigned the field courts additional jurisdiction during the Slate of war over cases of bribery, influence peddling, 

embezzlement of funds, and illegal speculations, regardless of whether 

the accused was a civilian or a serviceman, and regardless of whether 

the accused was apprehended in flagrante delicto. Decree Law 15/66 

assigned the military field courts jurisdiction over c::iIMS of desertion, 

~ncouraging desertion, and protecting and harboring deserters. Under 

Decr~e Law 11 162 the court included one presiding judge and four 

military jurors. Ther~ was no provision for objection and appeal and 

the judgm~nt was executed immediately aher ~ing proncunc~d , 

provided the death penalty was not included. In 1970, however, the 

Supreme Court, employing the American idea of judicial review, 

decided that much of the jurisdiction, court composition, and procedure of the military field courts was unconstitutional. Under Decree 

Law 06170. 23 June 1970. military field COurts were vested with 

jurisdiction over deserters and accomplices. servicemen and assimilated servic~men apprehended in flagrante delicto, and their civilian 

accomplices and accessories in the case of all felonies and misdemeanors prescribed by the Code of Military Justic~, the Code of 

Criminal Law, and other rules and regulations. The militarv held 

court was revised under the June decree to include one presiding 

judge and four associate judges. If the presiding judge was a ClvUlan 

judge, he had to be a chief judge or an associate judge of the Court 

o( Appeals; if military, he had to be of the rank of major or higher. 

The associate judges of the military field courts had to be professional 

military judges appointed by the Supreme Court. Decree Law 06170 

also provided for an appeal to th~ Suprem~ Court in all cases exc~pt 

d~sertion. 

Tile Law aTld the People 

In th~ory, the Vietnamese COllrt structure appears to extend 

nationwide in a highly sophisticated and comprehensive manner. In 

reality, howev~r, th~ activities of most of the courts and virtually all 

of the civil ian bar were limited to the principal cities. In the countryside, Courts of Peace wer~ the only legal instrumentalities. These 

courts wer~ not staffed by judges or qualified attorneys. The Justices 

of lhe Peace who presided over these courts, were provincial admin· 

istrators, often military officers, lacking legal training and experience. 

Since there were few lawyers or judges at the local level. the average 
VIETNAMESE LEGAL SYSTEM 37 

Vietnamese could not see the administration of the law as being 

substantially different from any other exercise of governmental 

authority. 

Traditionally, the Vietnamese have not relied on the law to settle 

their disputes or affiml their rights because they were not familiar 

with the law, and the legal apparatus was not easily available to 

them. A major factor in the remoteness of the law from the people 

had been the shortage of practicing attorneys in Vietnam. In 1967 

there were only 193 fully qualified attorneys in all of South Vietnam. 

Of this small number. 150 practiced in Saigon, and thirty of the 

forty-four provinces had no lawyers at all. In addition to the practicing attorneys there were approximately 100 judges. a category which 

included prosecutors as wel l as magistrates. Only two schools produced 

lawyers in Vietnam, one at Hue and the other at Saigon. The Law 

School at Saigon had about 4,000 students, but only a fraction were 

studying law as U.S. students would know it. The others studied 

economics, public administration, political science, and international 

affairs. In 1964. for example, only twelve probationers were admitted 

to the bar for the entire country. 

In considering these figures it is well to remember that the demand 

for legal services in Vietnamese society has been vastly different from 

that of Western, or, more particularly, American society. The Viet· 

namese economy is not an industrial or commercial one. There are 

relatively few automobiles, insurance companies, and real estate 

transactions to generate legal business. Average income is low, but 

it takes relatively little to live on. In addition to these and many 

other factors that tended to keep the lawyer population low, lawyers 

in a civil law system are not expected to provide the. same services in 

the same manner as do lawyers in a common law system such as that 

in the United States. Finally. there is much to be said for local, 

nonjudicial, and prompt settlement of petty disputes and minor 

offenses, and this method has worked quite well in many instances 

in Vietnam. In any case, the law as symbolized by the operation of the 

legislature and the courts with the active participation of the citizenry, 

represented by qualified counsel, has not played a significant role in 

the forming or functioning of Vietnamese society. 

The role of law in society is relevant to the conduct of war in 

two respects. First, the law can playa vital part in the effort to control 

the people and resources of a country and to curtail subversive activities. If there are well-written laws, effective co-operation between the 

police and the courts, and an efficient method for processing cases at 

the local level, people soon become familiar with the requirements 

of wartime measures; they realize that the laws are being enforced 

and that those who violate them .ill be punished. This awareness 

promotes increased voluntary compliance by the great majority of 
38 LAW AT WAR 

the population, and it acLS as a positive deterrent to those inclined 

to break the law. Second, and no less important, the law can help 

the war effort by effectively and justly operating within the courts 

at the loca l level. thu.s providing order as well as a highly visible 

symbol of the government's capa.bility and its concern for the needs 

of the people. The need for personal security and a means for settling 

disputes aTe basic to organized society; by administering to those 

needs through the law, a government can engender loyalty and FOSler 

a spirit of participation and c()-()peralion among the people that can 

pay high dividends in a counterinsurgency effort. 

In the Vietnam War, because of the existence of insurgency and 

counterinsurgency and because worldwide scrutiny was applied to 

lhe struggling government of South Vietnam, law assumed even more 

importance than might have been expected. Insurgency characteristically capitalizes on existing law to shield insurgents, exploit weaknesses in the governmental and legal structure, and in general uses 

the mllion's Jaw to aggravate any division between the populace and 

the counterinsurgency forces. On the other hand, the government's 

forces look to the law for new powers and authority in order to control the insurgents. and in doi ng so can very easily further alienate 

the populace from its own government. Failure by the government 

to grasp the intricacies of the equation can easily lead it to increasingly oppressive rule and d~per complications in its effort to extricate 

itself from the insurgency. One of the mOSt subtle but significant 

queslions the government has to answer is how to combine all forces, 

military and civilian, in the solution of insurgency. Sharp or traditional Jines of demarcation as to what is civilian and what is military 

are not apparent in such a siwation. The commander who does not 

see and provide in his coulllcrinsurgency plans fot' the role of such 

civilian agencies as the police, the prosecutors. the courts, the jails. 

and the law generally has likely foredoomed his military efforts. 

Commun ist forces have genera ll y well understood the political 

military inten-elationships, and the war in Vietnam was not in this 

regard an exception. The Free World forces, possibly in part because 

of the number and sovereignty of their components, seemed slower to 

grasp the significance of the role law plays in insurgency. slower to 

create the necessary civilian-military team, and slower to ensure that 

law supported them in their relations and operations involving the 

people of Vietnam instead of eroding or working against their goals. 

The goldfish bowl aspects of the Vietnam War-the constant 

presence. reporting, and commentary of a worldwide press relatively 

h'ee to room about South Vietnam within the protection of the 

Fr~ World forces--comributed heavily to the influence that world 

opinion of law or its absence would have on the war effon of the 

Republic of Vietnam. To fight for ilS life while at the same time 
VIETNAMESE LEGAL SYSTEM 39 

building a rule of law, to create a bench and bar and establish a civil 

service where none has existed is a tough task for any government. 

To do it under {he constant and critical eye of a press {hal compares 

what it sees with what it expects of its own experienced and sophisticated governments further complicated the matter in Vietnam. Not 

only was it important to have a just administration of law; that 

administration had to appear just to the public media or the government would pay a price before world opinion. The enemies of the 

Republic of Vietnam, however, the Viet Cong and the North Vietnamese, were not tested in the same manner and consequently were 

in a position to gain considerable propaganda and political advantage. Recognizing these circumstances, and the opportunities as well 

as the dangers they presented, the MACV Staff Judge Advocate took 

steps early to bring the political-military aspects of law into focus. 
CHAPTER III 

The Judge Advocate Advisory Role 

A unique aspect of MACV judge advocate activities was the 

advisory function. The use of the word advisory. which was the customary U.S. label for other MACV activities, is misleading in that it 

suggests that the American military lawyers were advising their 

Vietnamese counterparts in the application of Vietnam~ law. A 

more accurate tide would be liaison function, since the judge 

advocates and the Vietnamese lawyers exchanged information and 

co-ordinated their activities in the field of military law. It is true that 

the American military lawyers did, on occasion, offer advice to their 

Vielnam~ counterparts. as in the case of applying the Geneva 

Conventions and in the control of desertion. but most of the 

Americans' sexalled advisory efforts were directed toward collecting 

information on the workings of military law and military legal insti· 

tutions; assisting their Vietnamese counterp.1rlS in securing necessary 

funds, people, and material to accomplish their tasks; obtaining 

references and answering inquiries concerning American law; and 

ensuring that American and Vietnamese respective military law 

programs worked in hannony with one another. 

The judge advocate mission of providing effective legal counsel 

for the U.S. command required close: co-ordination with all the legal 

agencies of the government of Vietnam. Beyond functional co-operation, however, the MACV Staff Judge Advocate was also charged 

with assisting the Republic of Vietnam armed forces legal branch, 

the Directorate of Military Justice, to develop in a manner that would 

effe<:tive1y contribute to the prosecution of the war. While advisory 

activities in the strict sense were limited to the Directorate of Military Justice, members of the MACV Judge Advocate·s office also 

established communication with members of the government and 

civilian legal community and assisted them in developing legal 

institutions whenever possible. This association was only natural in 

a country where the bar was small and concentrated mainly in Saigon, 

where military and civilian legal problems were often intertwined, 

and where there was no U.S. civilian legal community to work with 

the local bar. Cases in which mutual professional respect and friend-
JUDGE ADVOCATE ADVISORY ROLE 4 1 

ship among attorneys exerted a positive influence enabli ng clients 

to resolve their differences were coun tless. In Vietnam the cordial 

relationship bet\veen U.S. military attorneys and Vietnamese lawyers 

benefited both governments. 

Beginnings and Droelopment to 196; 

While the Advisory Branch of the MACV Judge Advocate'S office 

was not formall y established until 1965. judge advocates had been 

cultivating friendships with Vietnamese attorneys for some five years. 

The positive results of such voluntary activit)' on the part of judge 

advocates are illustrated in an excerpt from a trip report prepared 

by Colonel Lawrence Fuller. Chief. International Affairs Division. 

Office of The Judge Advocate General. Department of .the Army, 

who toured the Pacific com.mands in late 1962. Speaking or the 

efforts of Colonel George F. Westerman as Staff Judge Advocate 

to the U.S. Military Assistance Advisory Croup. Indochina, the 

report states: 

Colonel Westerman is doing an exceptional job as SJA in Vietnam. 

In addition to a well-run office two things shoul d be mentioned. First, he 

has excellent relations with the embassy where he serves as their lawyer, 

also. Many of the embassy people knew him in Paris, came to rely on him 

there, and continue that reliance here. Second, he devotes his evening 

h OUri to several worthwhile kinds of instruction. Twice a week he t{'aches 

American Jurisprudence to law school students continuing Colonel [Paul] 

Durbin's classes. Twice a week he teaches a class in l\merican Political 

Ideals to undergraduate classes in the university, reaching a group [the 

university undergraduate] that worldwid{' is the natural target for communist propaganda. Finally, twice a week he teaches English to a class 

of judges and officials of the Ministry of Justice and has a morning session 

for the Minister of Justice alone. As a result any question involving the 

United States coming before the Ministry of Justice or the Saigon couTtS 

comes before one of Colonel Westerman's students. This latter activity 

has already paid off as the Ministry of Justice has now indicated that 

Vietnam will have no obj('ction to the convening of U.S. courts-martial 

in Vietnam and will use its processes to make local witnesses availabl('. 

This has been a probl('m to us throughout Indo·Ch ina since 1954 and is 

the first breakthrough we have had. For eight years the Department of 

State insisted that because of local objections we could not convene courts 

in Vietnam, Laos, Cambodia, and T hailand. Colonel Westerman by his 

round·the-dock efforts is making countless friends for himself and for 

the United States. 

The efforts of Colonels Durbin and Westerman were continued 

and expanded by subsequent judge advocates. By 1965 a mu ltifaceted 

advisory program was accounting for a significant portion of the time 

of the MACV judge advocate's office. Special emphasis was placed 

on aiding the Vietnamese to develop legal programs that would 

increase the efficiency of the armed forces. deter subversive aCtivities 

of the Viet Cong. and promote loyalty to the Saigon government. 
42 LAW AT WAR 

One important advisory effort was the collection, translation. and 

interpretation of Vietnamese decrees and regulations relating to the 

resources control program, military discipline, and other subjects 

having a bearing on lhe conduct of the war. The MACV Judge 

Advocate's office was the first agency in the U.S. command 10 undertake this task in a comprehensive way. As the documents were transl:ucd by the Vietnamese attorney working in the Judge Advocate's 

office, copies were forwarded to appropriate U.S. government agencies 

and MACV staff sections so that all U.S. personnel could keep abreast 

of changes in the Vietnamese system and work more effcctively with 

their Vietnamese counterp..1.rts. For example, in January 1965 distribution of Minister of Defense Decree 546 to all U.S. advisers was 

completed. This law was significant to the resources control program 

because it granted broad authority to the Vietnamese military police 

to conduct investigations and make arrests, p.1.rticularly in cases 

concerning offenses against stale security, which included the unlawful acts of the Viet Cong and their accomplices. sympathizers, and 

collaborators. Previously there had been large jurisdictional gaps 

where matters of state security were concerned. This broadened 

jurisdiction was especially important in areas ah'ay from the principal 

cities, where law enforcement officers were thinly spread and it was 

import .. mt to take decisive action quickly in order to prevent offenses 

or to apprehend offenders. The distribution of this decree <.:Otnplemented a comprehensive study on the resources control, arrest, and 

search and seizure laws of the Republic of Vietnam, which had been 

prepared by the MACV Staff Judge Advocatc's office and was also 

distributed to U.S. advisers in January 1965. By March this study 

had been translated into Vietnamese and distributed to U.S. adviSCTs 

for use in conjunction with their Vietnamese counterparts. In May 

the translation into English of all Vietnamcse resource comro\ laws, 

orders, and directives was completed. A special edition of seventy 

mimeographed sets was furnished to the Naval Advisory Group for 

distribution to all U.S. vessels on p.1.troi in Vietnamese territorial 

waters. 

In order to broaden the base of known Vietnamese law, opin ions 

prepared by the Vietnamese civilian attorney in the MACV Staff 

Judge Advocate's office were serialized. stenciled, and distributed 

to all U.S. sen·ice lawyers in Vietnam. The first three published 

opinions were titled "A Study of the Attorney Profession," "Procedures {or Transaction in Real Estate," and "Acquirement of Real 

Estate in Vietnam by Foreigners." The J\'IACV Staff Judge Advocate's office prep.1red an EngliSh-Vietnamese Law Dictionary, copies 

of which were rumished to all U.S. and Vietnamese military and 

civilian lawyers and judges in Vietnam. The office had recommended 

that the MACV AdjuL1.nt General establish a uniform indexing 
JUDeE ADVOCATE ADVISORY ROLE 13 

system and format for translated versions of Vietnamese decrees, 

directives, and other documents. but pending action by the Adjutant 

General the Staff Judge Advocate's oJlice continued to collect, {Tanslate, mimeograph. index, and distribute Vietnamese government 

documents. By July 1965 eighty-five documents had been so prepared. all relating to some aspect o[ Vietnamese law. Summaries and 

reports on Republic of Vietnam armed forces military justice and the 

republic's civil legal system were also prepared by the MACV Staff 

Judge Advocate's office to assist the field advisory effort. 

In addition to collecting and utilizing Vietnamese laws. the Staff 

Judge Advocate's office also furnished appropriate law books, texts. 

and other legal materials to the Vielllamesc. In order to assist the 

Minister of Justice of Vietnam in preparing an eleCtion law', the 

Staff Judge Advocate sent him in April 1965 a copy of the Precinct 

Chairman's Manual: Korean Election Law of 1948. which was prepared when Korea was under U.S. military government. and a report 

by the U.S. Presidential Commission on Registration and Voting 

Participation. During the same month the Minister of Justice and 

Minister of the Interior were also SCnt copies of Law and Population 

Control in Counterinsurgency. prepared by The Judge Advocate 

General's School, U.S. Army. Charlottesville. Virginia. In May fony 

Judge Advocate General's School texts on international law were distributed to various Vietnamese agencies and individuals, including 

the ministries of foreign affairs, interior, and justice. the law school 

in Saigon. and the Vietnamese judge advocate officers. In June similar 

distribution was made of texts on civil law and the law of land 

warfare. The Staff Judge Advocate's office also participated in Law 

Books-USA, a program funded by voluntary contTibutions fTom U.S. 

lawyers to provide foreign lawy<.'1·s with sets of eight American p..1perback lawbooks. In June thirty-five sets or such lawbooks were obtained 

(or distribution to Vietnamese lawyers. judges, military law officers, 

and others who would benefit by them. 

Judge advocates devoted considerable time in 1965 to working 

with Vietnamese ~gencies and the U.S. command to assist the Vietnamese in strengthening their governmental institutions. At that time 

these institutions were under tremendous pressure from several 

sources. Although many Vietnamese leaders were well educated and 

highly sophisticated, the government as a whole did nOt have the 

physical means or administrative experience to cope with the mushrooming demands placed on the bureaucracy by tile war. There were 

far too few trained civil servants, and these were not available at all in 

large areas of the COllntry. The Communists and other dissident factions were relentless in their efforts to thwart government programs, 

both military and civilian, and the rapid turnover of governments 

in Saigon further aggravated the sitttation. The Vietnamese govern-
44 LAW AT WAR 

Olent was under the difficulty of improving its programJ and undertaking new ones to hold the country together, while at the same time 

it was stru ggling for its very existence against 3 determined and 

ruthless enemy. The U.S. command worked vigorously to su-engthen 

and assist the Vietnam government as rapidly as possible. mindful to 

respect Vietnamese sovereignty and keenly aware that American solulions would not always work with Vietnamese problems. Most of the 

Viemamese attorneys with whom MACV judge advocates worked 

were competent. dedicated men who were concerned over the plight 

or their country and who worked to improve their government. They 

needed reinrorcement and encouragement, rather than direction. 

In the MACV Staff Judge Advocate's office. priority was given to 

advising the Vietnamest: military establishments. which traditionall y 

placed little emphasis on legal proceedings as a means of discipline. 

ln January 1965 the Sta ff Judge Advocate. Colonel Prugh. encouraged a stud y designed to promote a higher degree of discipline and 

respect for military justice in the Viemamese Army. Materials relating to military justice training were furnished to the Director of 

Military Justice. and a program was initiated to develop reliable data 

on disciplinary conditions in Vietnamese Army units in the field. In 

March the Staff Judge Advocate of the Vietnamese high command 

presented to the MACV Staff Judge Advocate a plan for the organization of judge advocate offices at the Vietnamest: corps headquarters 

for the purpose of promoting military justice in the field and bringing 

offenders to speedy trial. The plan was later co-ordinated with the 

Director of Military Justice. Proposed tables of organization and 

equipment for the newly established office of the S~ff Judge Adv()o 

cate o[ lhe high command and for the proposed corps judge advocate 

offices were discussed and translated into English. Also in March a 

study was made of the Vietnamese armed forces claims procedures. 

and, after co-ordination with the MACV comptroller. arrangements 

were made to ha ve a representative of the Claims B'dnch participate 

in financial management team surveys and other activities of the 

Military Community Action Program. which was aimed at providing 

more timely and realistic payment of clainu by the Vietnamese armed 

(orces to Viemamese civilians. 

To resolve problems common to Vietnamese and U.S. and other 

Free World Military Assistance Forces in the areas of law. order, and 

dicipline, a proposal was submitted by MACV to the Director of 

Military Justice (or the establishment of a Military Community 

Affairs Council. Liaison was maintained by the MACV Strlff Judge 

Advocate with the judge advocate of the Korean forces. who was furnished information and copies of appropriate MACV directives 

covering legal and disciplinary matters. and other data describing the 

Vietnamese civilian and military legal system. 
JUDGE ADVOCATE ADVISORY ROLE 45 

A chronic problem throughout the war was the desertion rate in 

the Vietnamese armed forces. As early as May 1965 the MACV Staff 

Judge Advocate wrote to the J-l of the Vietnamese high command 

deL'liling some proposed solutions. In conjunction with the letter, 

the Staff Judge Advocate also sent a plan for concrol of desertion in the 

Vietnamese armed forces to the MACV assistant chief of staff, J-1. 

It was not unusual for studies or proposals initiated by the staff J IIdge 

Advocate's office to be submitted to U.S. command staff sections 

as well as to appropriate Vietnamese agencies so that parallel action 

could be taken. In May 1965 also a staff study "to examine the role 

of the Civil Law in the Counterinsurgency in Vietnam and to make 

pertinent recommendations" was prepared and sent to the Commander, U.S. Military Assistance Command, Vietnam, and subsequently to the U.s. Ambassador and the director of the U.S. Overseas 

Mission. (Su Appendix C.) The staff study pointed to the need for 

improving the effectiveness of the Vietnamese civilian legal institutions and recommended that the director of the U.S. Overseas Mission 

study those aspects relative to the civilian advisory effort. A staff 

study calling for the establishment of a civilian advisory effort in law 

was prepared and also submitted to the commander, who approved 

and transmitted it to the director o[ the U.S. Overseas Mission. Among 

various other papers submitted to the commander and to the MACV 

chid of staff were current judge advocate law programs dealing with 

Vietnamese resources control laws; apprehension, trial, and punishment; improvement in effectiveness of current search and seizure 

laws; information and education in the law; and building a popular 

base of respect for the rule of law in Vietnamese society. 

The Gendarmerie 

As.sisting the Vietnamese to create, strengthen, reorganize, or 

replace governmental institutions and agencies was a challenging 

task. The judge advocate advisers had not only to understand the 

theory of the Vietnamese system, but they had to be thoroughly 

familiar with the actual operation of the laws under the Vietnamese 

government and the interaction of law agencies with other government agencies. A high degree of co-ordination was required of all 

Vietnamese agencies and U.S. staff sections involved. Given the basic 

unhamiliarity of most Americans with the Vietnamese legal system, 

the instability of Vietnam's government, the tremendous pressure (or 

effective action generated by the war, and the American penchant for 

innovation, it was inevitable that some of the changes made in Vietnamese institutions would be unsuccessful. An interesting example 

of an advisory breakdown in the legal area was the demise of 

the Gendarmerie. 

The Vietnamese Gendarmerie. patterned on the French force of 
46 LAW AT WAR 

the same name, was a national organization of "judicial police" that 

filled a gap between the military and civilian law enforcement 

agencies. It was a rural police force spread throughout the countryl5ide, and composed of men who were intimately familiar with the 

areas to which they wen! assigned. Known as "The Red Hats," 

because of their distinctive red headgear, these men were a familiar 

and respected symbol of authority. The Gendarmerie played a very 

important invcSligative role. especially away ITom the major cities. 

A5 judicial police they conducted investigations (or lhe courts and 

had the authority to take sworn statements that were admissib le in 

court. In the Vietnamese legal system they played a vital role in 

bringing the rule of Jaw to the people of the countryside. Unfortunately. during the process of reorganizing the various Vietnamese 

law enforcement agencies, a decision was made that the Gendarmerie 

was not worth keeping; funds for Gendarme operations were cut from 

the approved budget, and the organization went out of existence in 

January 1965. A huge backlog of cases piled up in the Vietnamese 

courts because there was no one to investigate or process them. Given 

the conditions existing in Vietnam at the time, it is not difficult to 

see how the mistake of aboliShing the Gendannerie was made. Very 

few Americans understood the place of the Gendannerie, since there 

is no equivalent force anywhere in the U.S. legal system. U.S. mili· 

tary advisers were not concerned with what were considered civilian 

police matters, and the civilian public safety advisers of the U.S. 

Overseas Mission, who were working with the Vietnamese National 

Police. naturally viewed police functions in terms of their own 

organizational experience. Since the Gendarmerie did not fall into 

any familiar category of American law enforcement organization, it 

was abolished. 

The worst aspect of the reorganization was that when the Gendarmerie was disbanded about half the men were transferred to the 

civilian National Police and the other half to the Viemamese military 

police, but no systematic effort was made to transfer Gendarmes and 

their cases together, so that investigations could be completed. Since 

both the National Police and the military police were being developed 

along American lines, there was no law enforcement agency designed 

to carryon effectively the judicial police work of the Gendarmerie. 

As a result, thousands of cases were never completed. As the full 

significance of what had happened came to light, Colonel Nguyen 

Mong Bich, the Vietnamese Director of Military Justice, took steps 

to fill tile void by establishing among the military police a section 

initially called the Military Judicial Police, This 5CClion was later 

named the Criminal Investigators, following the American pattern 

and adding the concept of the judicial policeman with special 

authority as a sworn investigator for the couri. The demise of the 
JUDGE ADVOCATE ADVISORY ROLE 47 

Gendannerie, however. severely disrupted Vietnamese military judicial operations for a considerable period of time. 

Law Society of Free Viel1lam 

One of the more enjoyable advisory activities was the organization 

of the Law Society of Free Vietnam in May 1965. The society initiated 

a cultural program designed [Q enable American military lawyers to 

exchange views and to discuss differences in law systems and doctrines 

with members of the Vietnamese legal profession. It was intended 

that the program would not only establish bener relations between 

American military lawyers and members of the Vietnamese legal profession, but that it would also foster the lise of law as a weapon in 

counterinsurgency. The program, entitled The Role of Law in Contemporary Society, consisted of a series of thirteen seminars, meeting 

every other week. The meetings included panel discussions, mixed 

team debates, individual presentations, critiques, and selet:ted mOlion 

pictures, followed by a social hour. The beginning of the seminar 

series was scheduled to coincide with Law Day, celebrated on the 

first day of May. The Law Society sent to the armed forces radio 

service a list of spot announcements for broadcast from 26 April 

through 2 May; transmitted materials for news articles; reqllested 

area chaplains to note Law Day in their sermons; and suggested 

issuance of appropriate statements by major subordinate commanders. 

The first meeting of the Law Society was held on 5 May 1965 at 

the Vietnamese-American Association in Saigon. Lieutenant Richard 

E. Reider, a U.S. Navy legal officer, spoke on The Citizen's Role in 

Law. Among the prominent persons to attend the first seminar were 

U. Alexis Johnson, Deputy American Ambassador; Barry Zorthian, 

Director, U.s. In(ormation Service in Saigon; Ly Binh Hue, Public 

Prosecutor of Saigon; Huynh Duc Buu, Assistant Public Prosecutor; 

Vu Tiem Tuan, Judge, Saigon Court of Appeals; and Colonel 

Nguyen Mong Bich, Director of Military Justice, later a Justice of 

the Supreme Court. For the second program, Lawyers in Contemporary Society. the speaker was Vuong Van Bac. Treasurer of the Bar 

of Saigon, Secretary General of the Association of Vicmamese uwyers, 

and a member of the faculty of the National Institute of Administration and of the University of Dalat (later a negotiator at the Paris 

peace talks, ambassador to London, and subsequently Foreign Minister). At the third seminar Colonel Nguyen Mong Bich spoke on 

The Function of the Courts. To il1ustrate the fourth program, "Trial 

by Jury," a mock trial written by Colonel John M. Rankin, U.S. Air 

Force, Assistant Staff Judge Advocate, MACV, was presented to the 

audience, which included many distinguished Vietnamese jurists. 

On 14 July 1965, Mrs. Nguyen Phyong Thiep, a promincl1l attorney 

in Saigon, presented a paper on The Juveni le Program; on 28 July 
48 LAW AT WAR 

VIETNAM J USTICES HOLD PANEL DISCUSSION AT MU,TtNO OP LAw SociETY IN SAlOON. U. Alexu j ohnson is in the foreground. Colonel Prugh 

standing, right. 

Lieutenant Colonel Malcolm L. McCain, Staff Judge Advocate. 

First Logistics Command, U.S. Army, Vietnam, discussed Judicial 

Review Procedures. 

The seminars continued to draw large and interested audiences 

from the Vietnamese and American communities. After each seminar 

Vietnamese members of the audience were eager to express meir 

views. Speeches and presentations were generally primed in both 

English and Vietnamese and distributed to the audience; some were 

reprinted in Saigon newspapers. These meetings fostered a democratic exchange of ideas, increased the legal knowledge of the participanlS, and provided a cordial atmosphere for professional contacts. 

Most important, the seminars presented a sampling of American legal 

ideas and attitudes [0 an inAuential segment of Vietnamese society 

in a manner the Vietnamese could accept without resentment. These 

Vietnamese lawyers and judges, who were able scholars in their own 

right, were introduced to new alternatives for dealing with legal 

problems and stimulated to analyze and improve their own legal 

institutions. The Americans, in turn. learned from the Vietnamese. 

While judge advocate staff members spent most of their time in 

Saigon. they made periodic trips to other parts of the country to study 

what effect programs initiated in Sa igon were having in the field. In 

late 1964 and again in early 1965 [he MACV Staff Judge Advocate, 
JUDGE ADVOCATE ADVISORY ROLE 19 

accompanied by his counterpart, the Director of Military Justice, 

made visits to the Vietnamese commanding generals of the four corps 

to discuss discipline procedures, desertion rates, and the handling of 

Viet Cong prisoners. In May 1965 they visited the U.S. Marine legal 

officer at Da Nang to co-ordinate legal activities involving newly 

arrived U.S. marines with Vietnamese authorities in the Da Nang 

area. At the request of the MACV Staff Judge Advocate the Director 

of Military Justice made a special visit to the Vietnamese commanding general of I Corps to ensure that several recently captured terrorists would be dealt with in a military trial. There had been a 

press slory to the effect that the terrorists were to be executed without 

even an attempt at trial, but this did not occur and Vietnamese legal 

processes were fully observed. Convincing the Viernamese commander 

to adhere to legal procedures in dealing with Viet Cong agents was 

of more than theoretica l interest to the U.S. command since the Viet 

Cong had publicly avowed a policy of reprisal against U.S. prisoners 

of war, and did in fact later execute at leaSt three prisoners allegedly 

in reprisal for executions by the Vietnamese of other Vi et Cong 

terrorists. 

The Advisory Division 

It was the opinion of the MACV Staff Judge Advocate that legal 

advisory activities could contribute significantly to the allied mission 

in South Vietnam, and that a legal advisory program deserved official 

recognition and support. A request to use American legal resources 

to establish an advisory branch was submitted by the MACV Staff 

Judge Advocate to the Commander, U.S. Military Assistance Command, Vietnam, in January 1965. The request was approved and 

the Advisory Branch, initially consisting of a chief and two field 

representatives, came into existence in July 1965. While the number 

of people and methods of operation of the Advisory Branch varied 

somewhat in subsequent years, the original plan ca lled for an advisory 

chief to be stationed at the Staff Judge Advocate's office in Saigon, 

and one field adviser to be located in each of the four corps areas. The 

Advisory Division continued to function until the Agreement on 

Ending the War and Restoring Peace in Vietnam became effective 

on 27 January 1973. At that time the incumbent chief of the 

Advisory Division became the legal adviser to the U.S. Delegation to 

the Four Party Joint Military Commission in Saigon during the 

sixty days of that body's operations. 

The chief of the division worked directly with the Directorate of 

Military Justice and other Vietnamese governmental agencies on 

such matters as budgeting, tables of organization and equipment, 

law reform, desertion control. administration of the military courts 

and prisons, and other programs to assist the Vietnamese to improve 
50 LAW AT WAR 

the functioning of their legal system. The advisory chief received and 

analyzed reports and information (rom the judge advocate field 

advisers, assisted them in their work in the corps areas in any way 

po.s.'Iible. and co-ordinated lhe whole judge advocate advisory program. 

The field advisers were the eyes and ears of the MACV Staff 

Judge Advocate in the respective corps areas, monitoring the status 

of law and order away from Saigon-morale and military discipline in 

the field units. the effectiveness of resources control measures, the 

desertion comrol program, and the functioning of the military COUTts 

and prisons. Working in conjunction with other U.S. advisers, they 

assisted their Vietnamese counterparts to improve legal facilities and 

legal programs. When possible. they established contacts in the local 

legal community. and made recommendations to the Staff Judge 

Advocate in Saigon for improving existing programs or establishing 

new ones. Finally. they acted as liaison ~tween lhe U.S. command 

and Viemamese legal officials in their own corps areas. providing 

limited lega l services to the U.s. advisory headquarters to which they 

were assigned. 

The status of the field advisers varied from corps to corps and 

from time to lime throughout the war. 1 Corps. the nonhermost 

and most distant corps area from Saigon. had a resident judge 

advocate adviser from August 1965 until March 1973. Originally 

stationed in Hue, where the university, the civilian and military 

courts, and the prison were located, the judge advocate adviser moved 

to Da Na ng after Tel of 1968. when the military courts and prison 

also moved to DOl Nang. II Corps, comprised of the C'...entral Highlands provinces, and by rar the largest corps area in terms of geography, had a resident judge advocate adviser from 1965 until 1973. 

The III Corps judge advocate adviser was stationed at the MACV 

Staff Judge Advocate·s office in Saigon, where he assisted the advisory 

chief and taught courses at the Saigon University Law School, performing corps advisory functions as well. The IV Corps judge advocate adviser was located in Can Tho in the Mekong Delta. Originally all field advisers were assigned to the MACV Staff Judge 

Advocate's office. with duty stations in their respective corps areas. 

Later, the judge advocate advisers for I. II. and IV Corps were assigned 

to the Regional Assistance Command headquarters in those corps 

areas. This assignment made lhe countrywide judge advocate 

advisory program less cohesive, but lines of communication were 

maintained. The extent to which judge advocate field advisers were 

actually able to devote their efforu to advisory work varied considerably from time to time and place to place. depending to a great 

extent on the relationShip between the judge advocate adviser and 

the U.S. commander for whom he worked, and on the legal needs 

of the local U.S. command at the lime. 
JUDGE ADVOCATE ADVISORY ROLE 51 

Over the years there was a marked contrast between the advisory 

work in Saigon and the activities of the field advisers in the outlying 

areas. In Saigon. advisory efforts were focused on such areas as the 

organization, staffing. and budgeting of Viemamese legal institutions. 

particularly the Directorate of Military Justice; the collection. trans· 

lation, and indexing of Vietnamese legal materials; educational 

programs for the Vietnamese legal community; monitoring the 

military courts and prisons; and trying to obtain materials to up' 

grade Viemamese legal facilities and the military prison in Saigon. 

The judge advocate advisory work in Saigon included collecting 

and disseminating Vietnamese legal materials. answering specific 

questions pertaining to Vietnamese and American law, preparing 

staff studies, and participating as members of various MACV and 

joint MACV- Vietnamese committees. One example of the last category was the MACV judge advocate adviser's participation as a member of a joint committee which developed a national mobilization 

study for the Vietnamese armed forces in the fall of 1972. 

Educational Program 

One of the most vigorously pursued and successful long-range 

advisory efforts was the educational program, which was developed 

during the lOurs of Colonels Durbin and Westerman. From the early 

sixties until March 1973 members of the MACV Staff Judge 

Advocate's office continued to teach courses in government and law 

at Saigon University and to tutor in English Vietnamese lawyers who 

were then. or later became. Supreme CoUrt justices, Minister of 

Justice. Minister of Interior, or key Directorate of Military Justice 

personnel. 

The Staff Judge Advoc.:lte was successful in obtaining authoriza. 

tion for members of the Directorate of Military Justice and other 

government officials to receive assignments and grants for study in 

the United States. For example, in 1965, the Prosecutor and Assistant 

Prosecutor of the Saigon Court visited the United States as part of the 

Foreign Leader and Specialist Program of the Department of State. 

Such visits were highly successful and were continued over the years 

to allow a representative cross section o( the Viemamese legal com· 

munity to observe American legal institutions. Annual orientation 

tours were also programed for key personnel of the Directorate of 

Military Justice to visit U.S. military and civilian courts, schools, 

and prisons. 

A program was also initiated whereby selected officers of the Directorate of Military Justice were sem to The Judge Advocate General's School in Ch:ulouesville, Virginia. as members of one of 

the school's eight-week basic courses or nine·month advanced cOllT!':es 

in military law. An average of two language-qualified officers a year 
52 LAW AT WAR 

were.sent to Charlottesville; the highest point was reached in January 

1970 when four officers qualified for attendance. Also in 1970, an 

officer of the Directorate of Military Justice was accepted by Tulane 

University to attend a one-year program in comprative jurisprudence 

leading to an LL.M. degree. This :usignment was the culmination 

of efforts by the Judge Advocate Advisory Division to send a deserving mem~r of the Directorate of Military Justice to America for 

advanced legal studies. 

Educational programs were not limited to sending Vietnamese 

attorneys to the States. Efforts were also made to increase tllC awareness 

of the Vietnamese to the importance of law within their own mili· 

tary system. As part of the continuing efforts to make American legal 

publications available to the Vietnamese, the Directorate of Military 

Justice was placed on the subscription lin for The Army Lawyer, the 

Military Law Review, and the Judge Aduocale Legal Service periodicals. The U.S. Supreme Court Reporter was made available to the 

Vietnamese Supreme Court. In early 1970 the Ministry of Defense 

authorized the Directorate of Military Justice to start publication of 

a semiannual Military Law Review. This publication had been recommended by the Advisory Division to fill the need for dissemination 

of information on changes and progress in the VieUlamese legal system. The MACV judge advocate staff regularly contributed articles 

on American military law to this publication. 

A major step fonvard was taken in mid·1969 with the initiation 

of a law curriculum for cadets at the Vietnamese Military Academy 

at Dalat and the assignment of one membeT of the VieUlamese Mili· 

tary Justice Corps to the academy as professor of law. Previously 

there had been only occasional legal lectures and no regular legal 

instruction at the academy, which is the VieUlamese equivalent of 

West Point. In November 1971 the Directorate of Military Justice 

opened iu own school (or training military lawyers, administrative 

personnel, and court clerks. The school was located in Saigon and 

was staffed by two Directorate of Military Justice officers-Major 

Tran Lai Mien, who had attended the advanced course of The Judge 

Advocate General's School at Charlottesville, and Major Tran Hua 

Dinh, who had recently returned from comparative law studies at 

Tulane University. 

Judge advocate advisers also remained active in legal society and 

educational programs in Saigon, particularly the educational seminars 

sponsored by the Vietnamese-American Association. A Saigon chapter o( the Federal Bar Association was formed, and held periodic 

meetings to which all U,S. attorneys in the country were invited. The 

observance of May 1st as Law Day grew from its simple beginning in 

1965 to an annual tradition where all U.S. and VieUlamese attorneys 

who could make the trip came to Saigon for appropriate legal pr~ 
JUDGE ADVOCATE ADVISORY ROLE :)3 

grams and festivities. The 1972 Law Day reception, held at the U.S. 

Embassy, was hosted by Ambassador Ellsworth Bunker and General 

Creighton W. Abrams, and was attended by U.S. and Vietnamese 

attorneys from all parts of Vietnam. 

The Fidd Advisers 

The work of the judge advocate field advisers was quite different 

(rom the legal advisory activities carried on in Saigon. The field ad· 

viser was the only person in his corps area doing legal advisory work 

with the Vietnamese. Field advisers did nOt have a staff to assist them, 

and available library facilities were apt to be minimal. The U.S. 

and Vietnamese officers with whom the field advisers dealt were usu· 

ally considerably older and ranked above the judge advocate ad· 

visers. Keeping informed of developments in the corps area which 

were of interest to the Staff Judge Advocate, as well as establishing 

contactS in U.S. and Vietnamese military units and civilian agencies, 

usually required considerable traveling by the field MACV adviser. 

The language difference was a problem: however, many Vietnamese 

judge advocates sJX>ke French or sorne English, and interpreters were 

usually available. 

Living and working conditions and daily activities of the field 

advisers varied widely. Some advisers were able to work with their 

Vietnamese counterparts on a daily basis and devoted most of their 

time to advisory activities; others, of necessity, functioned primarily 

as command judge advocates for the U.S. advisory headquarters to 

which they were assigned. The success o[ a field adviser's tour o[ duty 

depended on many factors-his own drive, personality, and ingenuity; 

the personality of his counterpart and the adviser's ability to establish 

rapport with him; the supJX>rt given the adviser by the local U.s. 

command: and the legal needs of the area at that particular time. The 

work of the field advisers was innovative in a very real sense in that 

each adviser was required to discover and act on problem areas in 

which he could most effectively render assistance. Seldom was there 

a book solution for the problems he encountered. 

Advisory activities involved such diverse legal areas as Vietnamese 

military justice procedures, questions arising from the Penta lateral 

Agreement, operation of the re-education centers, provincial jails 

and military prisons, the Vietnamese claims program, the National 

Police, the military police, desertion control, resources control, security program.s, and various aspects of the pacification program. Often 

the most pressing advisory problems were more practical than legal 

in nature, such as arranging transJX>rtation for Vietnamese legal of· 

ficers, providing storage for records of trial, or obtaining material and 

equipment to improve the military courts and prison facilities. 

It was not unusual for incidents with potential legal implications 
54 l..AW AT WAR 

to occur in Vietnam, involving business enterprises, government agencies, and individuals from several difIerelll nations. Questions of any 

complexity, or with potentially serious legal consequences, were referred to the MACV Staff judge Advocate in Saigon, but the field 

adviser was sometimes the initial legal point of contact and the investigator of fact for such incidents. 

A feeling for the wide range of activities which fell within the 

work or the judge advocate field advisers can be gained (rom an 

account of some of the experiences or C'lptain john T. Sherwood, 

who was the first judge advocate adviser for II Corps from August 

1965 until May 1966. Shortly after Captain Sherwood assumed his 

duties, a U.S. B-57 bomber crashed in the commercial section of 

downtown Nha Trang, causing several casualties and extensive damage to houses and shops in the area. While the legal authority of the 

U.s. command to pay claims for such "combat" damage was in doubt, 

the MACV Staff judge Advocate nevertheless moved swiftly to assess 

the damage and to assist those who had suffered physical and financial 

injury to submit requests for compensation. As part of this effort, the 

judge advocate field adviser spent two days working with a committee 

of Vielilamesc citizens to inspect damage in order to determine an 

equitable amollnt for settlement in accordance with applicable Vietnamese standards. The adviser also confen'ed with the Nha Trang 

Provost Marshal concerning the conduct of some National Police, 

who allegedly were ineffective in preventing looting after the crash. 

The judge advocate adviser took part in negotiations between the 

French-owned electric company that serviced Nha Trang (the Eastern Construction Company) and a representative of the U.S. 5th 

Special Forces Group concerning liability (or property damage caused 

by a Filipino national employed by the company who drove a Civilian 

Irregular De£ense Group vehicle into an electric company transformer. (The U.S. Special Forces trained and financed the Civilian 

Irregular Defense Group.) 

Captain Sherwood's activities were not confined to Nha Trang. 

Indeed, in August and September of 1965 he traveled extensively: 

to Qui Nhon to visit the province jail and observe the StaLUS of the 

Vietnamese military police and military justice instructions in units 

of the Regional Forces and Popular Forces; to Dalat to visit the Military Academy, the Command and General Staff School, and the U.S. 

Overseas Mission province representative; and to Ban Me Thuot to 

meet the sector adviser, the U.S. 2M Division staff, and the U.S. 

Overseas Mission representative. At Ban Me Thuot Captain Sherwood attended an oath of allegiance ceremony whereby 300 dissident 

Montagnards returned to the government side. On 17 September he 

Rew to Saigon to confer with the Director of Military justice and 

tlie Vietnamese] udge Advocate staff. He spent 23 to 25 September 
JUDGE ADVOCATE ADVISORY ROLE 55 

inspecting Regional Forces and Popular Forces training at Tuy Hoa 

and observing the pacification program in Phu Yen Province. At the 

end of Septemher Captain Sherwood visited Vietnamese II Corps 

headquarters at Pleiku, where he met the corps legal staff and arranged for the shipmenl of records between the corps headquarters 

in Pleiku and the Military Court in Nha Trang. While at Pleiku, 

Captain Sherwood also conferred with U.S. commanders on military 

justice problems, redrafted a pro"ost marshal directive concerning 

the confiscation of military paymenl certificates from Vietnamese 

employees of U.S. installations, discussed the desertion problem of 

the Regional Forces and Popular Forces with U.S. advisers, and visited a Vietnamese refugee camp. 

Although such a great amOUnl of travel was not required of CaJ> 

ta in Sherwood every month, he was constanlly provided with new 

and interesting experiences. He reviewed a treatise on Vietnamese 

law written in English by a Vietnamese judge advocate officer. He 

represented two U.S. soldiers charged with rape, atlempted rape, 

robbery, and assault at a pretrial investigation. He visited the Khanh 

Hoa Military Prison, the Duc My Nationa l Training Center for 

Vietnamese army recruits, and the Song Mao National Regional 

Force Training Center. He conferred in Bangkok with the staff judge 

advocate of the Joinl U.S. Military Advisory Group. Thailand. on 

the legal Status of U.S. military personnel visiting in Thailand. and 

on the feasibi lity of an advisory effort for military lawyers in Thailand. He made three parachute jumps with the first Montagnards 

ever to be airborne-trained. He participated in a political warfare 

exercise in which leaflets were dropped from the air over territory 

cOnlTolled by the North Vietnamese. He made a visit to the Khanh 

Hoa Province jail. He made a detailed study of the methods lIsed 

by U.S. uniu in II Corps for handling captured enemy pcrsonnel. 

(To gather facts for this study. he made a visit to the 1st Air Cavalry 

Division (Airmobile) at An Khe. to the 3d Brigade, 25th InfantTY 

Division. at Ban Me Thuot and Pleiku, and to the 1st Brigade, lOlst 

Airborne Division, at Phan Rang and Tuy Hoa. He made an effort 

to determine to what extent cards on treatment of prisoners of war 

were being disseminated by the Vietnamese Anny and to what extent 

the contents of the cards were understood by the Vietnamese troops. 

many of whom were illiterate.) 

As can be seen from the great diversity of the activities detailed 

above. it is difficult to characterize the work of the judge advocate 

field advisers. Each adviser determined his own pTOgram through 

analysis of the legal needs and the opportunities existing at his duty 

station at the time of his lour. Early advisers, like Captain Sherwood, 

spent a great deal of time ascertaining conditions in their respective 

corps areas and building an identity for themselves while working for 
56 LAW AT WAR 

acceptance of the legal advisory program. As the number of U.S. advisers and troops throughout Vietnam increased and the legal advisory program became established. later judge advocate advisers were 

able to devote their efforts to other matters. But each field adviser 

had to gain anew the confidence of his Vietmimese counterpart and 

of the U.S. forces with whom he dealt, and each had to rely on his 

own tact, resourcefulness. and legal ability in order to accomplish 

his mission successfully. 

The Prison Advisory Program 

One facet of the advisory program for which neither civilian nor 

military legal training had prepared the judge advocate advisers of 

the Military Assistance Command was \!Jorking with the Viemamese 

military prison system. In the American Army, military confinement 

facilities were administered by the Military Police Corps. In the Viet· 

namese system, as in the Chin~ and some other systems, the mili· 

tary prisons were administered by the Military Justice Corps. Since 

MACV judge advocates were advisers to the Directorate of Military 

Justice, they also became advisers to the military prisons. One such 

prison was located in each of the four corps areas, in conjunction with 

the military court serving that area. The term military prison did not 

include the prison on Con Son Island, which was considered a civilian 

prison, even though it contained political prisoners who could have 

been tried by military courts. 

The Vietnamese military prisons were pretrial detention centers 

only. The great majority of prisoners were charged ,~ith desertion. 

The average deserter spent about three months in confinement await· 

ing his trial; one charged with more complicated and serious offenses 

might spend a year or more in pretrial confinement. Time spent in 

pretrial confinement was credited toward service of sentence, and 

deserters and petty criminals sentenced to confinement upon convic· 

tion were usually remanded to an army labor battalion to serve the 

remainder of their terms. Those convicted of more serious crimes 

were sent to civilian prisons to serve their sentences. Each of the mili· 

tary prisons was under the supervision of the chid prosecutor of the 

military court for the corps area. The Directorate of Military Justice 

officials who operated the prisons were not attorneys: neither, for the 

most part, were they trained prison specialists. Prison conditions 

tended to be inferior in comparison to standards one would expect in 

American military prisons, but life in Vietnamese military prisons 

was not appreciably more spartan than that of many civilians or of 

soldiers in the field. 

Judge advocate advisory efforts for the military prisons fell into 

two general categories: obtaining sorely needed building materials 
JUDGE ADVOCATE ADVISORY ROLE ,,7 

and supplies, and attempting to provide a certain degree of adminis· 

tnuive guidance and technical expertise. 

The material needs that existed for the prison system are illus· 

trated by the advisory experience with the Oa Nang military prison 

in 1972. Prior to 1970 the prison had been located in Hue. During 

Tel of 1968 the prison, along with many other U.S. and Vietnamese 

facilities in and around the city, came under siege by the Commu· 

nisu. The prison was not overrun, but after the Tel offensive a de· 

cision was made to move it to Da Nang, which was considered more 

secure. The move to Oa Nang would also bring about a considerable 

increase in administrative efficiency, since both the military court and 

the military field court had been moved to Oa Nang. Several sites 

near Oa Nang were considered, and rejected as being insufficiently 

secure from enemy attack. Finally, an abandoned engineer compound 

in east Oa Nang was selected as an acceptable site. 

The move was begun in 1970, and the facility was officially 

opened on 1 July 1971. The new prison consisted of eight stucco 

buildings surrounded by barbed wire. There was no from gate for 

the outer compound; there were no defensive fortifications, no sleeping facilities for cadre or prisoners, no messing facilities, no potable 

water, and no electricity. Slowly, prison officials and the judge advocate adviser began making improvements, mOSt of which were wiped 

out by a typhoon in October 1971. As U.S. units in 1 Corps began to 

move out of the line and return to the United States, however, sur· 

plus and scrap supplies and materials became available through 

advisory channels. 

From January until June 1972 approximately seventy.five 

truckloads of building materials, steel cargo (CONEX) containers, 

furniture, and items of military clothing and equipment were ob· 

tained for the prison. The great bulk of the material acquired was 

considered not reusable by the American forces, but Vietnamese in· 

genuity found practical uses for even the most unlikely pieces. For 

example, a front gate was fashioned by welding together discarded 

pieces of pipe and a huge aluminum sliding warehouse door. The 

materials acquired were used to construct fourteen defensive bunk· 

ers, sleeping platforms for 1,200 prisoners, a stage, a guardhouse, and 

a handicraft office, and to furnish lhe mess hall, a visiting hall, a con· 

ference hall, a dispensary and doctor's office, a canteen, a cadre lounge 

and cadre barracks, and the prison administrative offices. Acquisition 

of a water trailer and waler tank enabled potable water to be: transported and stored for use in the kitchen. Guards were furnished with 

helmets, flak jackets, web gear, and rain gear. 

Encouraged by the success of the self.help projects, prison officials 

were able to secure from a construction company a donation of 400 
58 LAW AT WAR 

CHAPEL O F THE 

J..fILlTARY PRISON AT DANANo. 

Judge advocates helped 

II} proc ure building materials. 

bags of cement, which were used to conStruct a chapel and a pagoda 

for use by the prisoners and cadre. Ingenuity on the part of the 

prison commandant and marketing assistance from the judge advocate adviser enabled the prison to increase the assets of the prison 

general purpose fund by 65 percent in a three-month period through 

the sale of woven straw lobsters. Other handicraft projects wefe tried 

on an experimental basis, and a vegetable garden was started. The 

persistent efforts o[ the prison commandant and the judge advocate 

adviser to work through Vietnamese logistical channels were rewarded 

when a doctor was assigned to work at the prison on a regular basis, 

and when a generator was sent to the prison, which previously had 

been without eltttric power. An allocation of funds from Saigon 

made possible the start of construction of two administration build· 

ings, several latrines, and "a kitchen in August 1972, by which time 

the Da Nang prison was well on its way to becoming a model insti· 

tution in the Vietnamese military penal system. 

While the day·tooay work with the prisons was carried on by the 

field advisers, the MACV Staff Judge Advocate in Saigon was also 

active in obtaining materials for the prisons and in devising ways to 

improve the administration of the prison system. Over the years, large 

quantities of construction materials were obtained, enabling the 

Vietnamese to complete such major projects as an evidence building 

at the Saigon Military Prison and an annex to the Saigon Military 

Prison, both completed in 1970, and an evidence building at the 

Nhah Trang Military Prison in 1971. Smaller projects, such as the 

construction of sleeping platforms, were carried on continuously as 

material became available. Some major projects, such as the construe· 

tion of the fourth and newest military prison at Can Tho in the 

spring of 1970 and an additional cell block at the Saigon Military 
JUOGJ:: ADVOCATE ADVISORY ROLE 59 

Prison in 1971, were funded through government channels. 

Although the Directorate o( Military Justice was responsible for 

the operation of the military prisons. few of its officials had any formal training or previous experience in penal administration. Because 

or the high wartime desertion rates. the military prisons were often 

overcrowded. and prison populations were subject to fluctualions of 

as much as 50 percent over a short period. depending on the time of 

the year, tactical conditions in the field. and periodic amnesty programs instituted by the Vietnamese government to relieve overcrowding in the prisons and to return troops to the field. It was not unusual 

for as few as fifty guards and administrative cadre (a total of all shifts, 

including officers) to control over 1.200 prisoners. Prisoners were 

essentially self-regulating within the compounds. Escape attempts 

were surprisingly few, and discipline was generally excellent. The 

average allocation for prisoner support in 1972 was lOt (U.S.) per 

prisoner per day. Given these conditions, problems of prison administration were inevitable. 

Officers from the MACV Staff Judge Advocate's office in Saigon 

periodically visited the military prison in each corps area, monitoring progress and co-ordinating advisory programs with the field advisers.Recognizing the need for more professional help in the prison 

advisory program. Colonel Robert K. Weaver, the MACV Staff Judge 

Advocate, in 1970 was able to augment the Advisory Division staff 

by having a U.S. Military Police Corps officer assigned as a special 

adviser to the pretrial confinement facilities under the Vietnamese 

Directorate of l\mitary Justice. Following an inspection of four 

prisons in November 1970 the American military police adviser prepared an administrative checklist for the entire functioning of the 

confinement facilities, covering custody, control. and confillemem 

practices pertaining to health, comfort, and sanitation. The checklist 

was translated into Vietnamese and delivered to the Directorate of 

Military Justice for use in a three-month sampling which would indicate areas of needed improvement and facilitate the development 

of standard operating procedures. 

('.alonel Weaver arranged visits to Vietnamese military prisons by 

U.S. staff members with expertise in the operation of confinement 

facilities, such as the MACV J-I, the MACV Command Surgeon, and 

the chief of the Provost Marshal Prisoner of War Division. Arter 

these visits the observations and recommendations of the members 

were compiled, analyzed. and forwarded to the Director of Military 

Justice and the Minister of National Defense. 1n 1971 a group of 

twelve Vietnamese prison officials and noncommissioned officers was 

conducted on a detailed tour of both the old and new U.S. Army 

confinement facilities at Long Binh post. In June 1972 plans were 

made for formal school rraining and subsequent on-the-job training 
60 LAW AT WAR 

at the Military Police School at Fort Gordon, Georgia, [or several 

Directorate of Military Justice prison officials in fiscal year 1974. 

When the Paris Agreement on Ending the War and Restoring 

Peace in Vietnam entered into force the judge advocate advisory role 

came to an end. Legal advisory activities in Vietnam had ranged fcom 

conferring with government ministers in Saigon to inspecting troop 

training in Tuy Hoa and obtaining lumber for a prison in Da Nang. 

Advisory "subjects" are not found in any law school curriculum, and 

coping with the diversity of advisory activities challenged the legal 

talents of the U.S. military attorneys who participated in this fascinating work. Each undertaking was important in assisting the Vietnamese to improve and strengthen their legal system. 
CHAPTER IV 

Prisoners of War and War Crimes 

As the war in Vietnam intensified, the issue of prisoners of war 

and war crimes gained in significance, both in Vietnam and worldwide. The MACV Staff Judge Advocate became deeply involved in 

this issue, developing legal policy and implementing rules based on 

the Geneva Conventions. United States policy, and Free World 

forces interests. 

Application of Geneva Conventions to Prisoners of War 

The application of the Geneva Conventions of 12 August 1949 

to captives in the Viemam War was complicated by the pt:rplexing 

lega l nature of that conRiel. In the classic sense, the conventions presume a declared state of war between two or more sovereign states, 

each fielding a regular army fighting on a readily identifiable battlefront. Virtually none of these classic conditions existed in the Vietnam conflict. 

The United States re<:ognized the sovereignty of South Vietnam, 

as did some eighty-seven other nations. Indeed. South Vietnam is a 

member of several special committees of the United Nations. and 

would have been a member of the United Nations itself had it not 

been for a Soviet veto in 1957. 

The United States has not accorded full diplomatic ro::ognition to 

North Vietnam, as have some twenty·seven other states. However, the 

United States has acknowledged North Vietnam's agreement to the 

Geneva Conventions of 1949, and it has treated North Vietnam as a 

separate state in the context of Article 12 of the Geneva Prisoner of 

War Conventions. 

Throughout the course of the war the government of North Vietnam was most reluctant to admit to any involvement in South Vietnam, constantly maintaining all of Vietnam to be one country and 

the Saigon government a puppet regime, beleaguered by indigenous 

patriots who wished to restore the country to the people. The Republic of Vietnam, while asserting its separation from North Vietnam 

and its existence as a sovereign state, steadfastly refused to accord to 
62 LAW AT WAR 

the Viet Cong any degree of legitimacy, either as a separate political 

entity or as an agent of Hanoi. 

Neither the United States nor North Vietnam issued a declaration of war. South Vietnam declared a state of emergency in 1964 

and a state of war in 1965, actions taken primarily to increase its internal powers. 

The types of combat forces in the war ranged the full spectrum 

from the regular divisions of the United States, South Vietnam, and 

North Viemam to the Regional Forces and Popular Forces of the 

government of South Vietnam, the Main Force and Local Force battalions of the Viet Cong, the Civilian Irregular Defense Group of 

South Vietnam, and the secret self-defense groups of the Viet Cong. 

The battlefield was nowhere and everywhere, with no identifiable 

front lines, and no safe rear areas. Fighting occurred over the length 

and breadth of South Vietnam, on the seas, into Laos and Cambodia, 

and in the air over North Vietnam. It involved combatants and civilians from a dozen different nations. POlitically, militarily, and in 

terms of international law, the Vietnam conAict posed problems of 

decp complexity. The inherent difficulty of attempting to apply traditional principles of international law to such a legally confusing 

conflict is well illustrated by the issue of prisoners of war. 

As combat units of the United States became heavily engaged in 

the war in 1965, the question arose as to the proper disposition for 

battlefield captives and others detained by U.S. units during military 

operations. In 1965 the United States determined to tum over to the 

Vietnamese anned forces all individuals captured by U.S. forces. Such 

an arrangement is permissible under the Geneva Prisoner of War 

Conventions, which provide for the capturing power to release prisoners to a detaining power as long as both the capturing and the 

detaining powers fulfill certain obligations concerning the welfare 

of the prisoners. 

While the legal basis for a transfer of prisoners was sound. carry· 

ing Out the transfer was beset by serious legal and practical difficulties. The Republic of Vietnam regarded the Viet Cong as criminals 

who violated the security laws of South Vietnam and who consequently were subject to trial for their crimes. As indigenous offenders, the Viet Cong did not technically merit prisoner of war status, 

although Lhey were entitled to humane treatment under Article 3, 

Geneva Prisoner of War Conventions. Under Article 12, the United 

States retained responsibility for treatment of its captives in accordance with the Geneva Conventions even aber transfer of the captives to the South Vietnamese. At the same time, the United States 

was concemed that Americans held captive in North and South Vietnam receive humane treatment and be accorded the full benefits and 

protection of prisoners of war. In the south, where the government of 
PRISONERS OF WAR AND WAR CRIMES 63 

South Vietnam had tried and publicly executed some Viet Cong 

agents, there had been retributory executions of Americans by the 

Viet Cong. In the north, the Hanoi government stated that it would 

treat captured American flyers humanely. but it wou ld not accord 

them prisoner of war status as they were "pirates" engaged in unprovoked attacks on North Vietnam. Hanoi repeatedly threatened to try 

United States pilots in accordance with Vietnamese laws, but never 

carried out this threat. U.S. policy was for the United States to do all 

in its power to alleviate the plight of American prisoners. It was expected that efforts by the United States to ensure humane treatmem 

for Viet Cong and North Vietnamese Army captives would bring 

reciprocal benefits for American captives. 

Early in the war there had been some question in the United 

States command as to whether the struggle aga inst the Viet Cong 

constituted an armed international conRict as comemplated in Article 2, Ceneva Prisoner of War Conventions, or a conRict not of 

international nature, to which Article 3 would be applicable. With 

the infusion of large numbers of United States and North Vietnamese combat units and the coming of the Korean. Australian, Thai, 

and New Zealand contingents of the Free World Military Assistance 

Forces, any practical doubts as to the imernational nature of the conRict were resolved. Although North Vietnam made a strong argument that the conflict in Vietnam was essemially an internal domestic 

struggle, the official position of the United States. stated as early as 

1965, and repeated consistently thereafter. was that lhe hostilities 

constituted an armed imernational conflict, that North Vietnam was 

a belligerent, that me Viet Cong were agents of the government of 

North Vietnam, and that the Ceneva Conventions applied in full. 

This view was urged uJX>n the government of South Vietnam. which 

acceded reluctantly, but subsequently came out in full suppon of 

the con\'entions. 

A major practical difficulty in implementing a prisoner of war 

program was that the Vietnamese government had no facilities suitable for the confinement and care of prisoners of war. In December 

1964. the Vietnamese Director of Military Justice took the MACV 

Staff Judge Advocate on a tour of courts and confinement facilities 

throughout South Vietnam. As a result of his observations during 

that tOllT the Staff Judge Advocate prepared a study pointing out 

some of the seriolls problems that existed in handling Viet Cong 

suspects and prisoners. These problems were quickly becoming joint 

U.S.-Vietnamese problems, because combat captives and Viet Gong 

suspects picked up by U.S. forces, Free World Military Assistance 

Forces, and Vietnamese forces were all delivered to Vietnamese 

authorities for interrogation. processing, and possible confinement. 

During 1965 the number of political prisoners in confinement 
64 LAW AT WAR 

rose almost 100 percent, from 9.895 in January 10 18,786 in De<:em· 

ber. These were primarily members of the Viet Cong. but also 

included some Viet Cong sympathizers, supporters, or collaborators, 

A tot.ll of 24.878 of these political prisoners were confined during lhe 

year (compared with 14.029 in 1964). while 15,987 such prisoners 

wefe released during the same period. The total rated cap.lcilY of all 

South Vietnam civilian jails and prisons was about 21,400. Few 

political prisoners. terrorists, or prisoners of war were customarily 

held in Vietnamese military prisons, which were used primarily as 

pretrial detention centers for Army deserters and other military 

offenders. After June 1965 the prison population steadily rose until 

by early 1966 there was no space for more prisoners in the existing 

jails and prisons. The practical effect of this was that as new prisoners 

were confined others had to be discharged. Average time of confinement for all prisoners, including Viet Cong, was about six months. 

Thus a few months after apprehension a Viet Cong member could 

be, and usually was, back in operation, while had he been a prisoner 

of war he would have been restrained "for the duration." 

Lack of physical space was but one of many serious problems. An 

important factor in the operations of the jails and prisons was simply 

the cost of feeding the prisoners. At an average allowance of H 

piasters (lOt) per prisoner per day. the monthly cost by early 1966 

ran to about ten and a half million piasters a month. Confinement 

authorities complained of chronic difficulty in feeding the large 

number of prisoners they were required to care for, and the jailer in 

one province was underst.1ndably reluctant to accept and feed prisoners [Tom other provinces. Again, the result was that many prisoners 

were released after a short time simply because they could not be fed. 

Confinement facilities were also handicapped by a severe shortage 

of qualified administrative and security officers. As an illustration, in 

1965 at the Tam Hiep prison there were 30 guards for all shifts and 

50 other personnel to control and train almost 1.000 prisoners. In 

1966 at Nha Trang Province jail there were 26 guards and 1 instructor for about 440 prisoners. The situation was further aggravated by 

the fTequent loss of guards, jailers, wardens, and instructors who were 

drafted into the military. This manpower shortage not only thwarted 

any meaningful classification and rehabilitation program for the 

prisoners, but also seriously threatened the security or jails and prisons. 

which were prime Viet Cong targets as long as they held Viet Cong 

prisoners. 

In tenns of the war effort, probably the most serious shortcoming 

of the prisons was the fact that common criminals, Viet Cong sus· 

pects, prisoners of war, and even juvenile delinquents were all mixed 

together. This enabled Viet Cong agents to foment resentment against 

the government of the Republic of Vietnam and to proselitize their 
PRISONERS OF WAR AND WAR CRIMES 65 

fellow prisoners; it also increased a Viet Cong's chance for early 

release as pan of the normal inflow-QUlRow of the prison population. 

The following figures show the population of Vietnamese jails and 

prisons that housed political prisoners as of the end of 1965. The 

figures do not include military prisons, which at that time also held 

some Viet Cong who were taken in combat and more closely 

resembled the classical prisoners of war. 

Prisons TO/ill prisoners 

Con Son National Prison.. ... . 3,551 

Chi Hoa National Prison .......... 4,179 

Tam Hicp National Prison.. . 946 

Thu Due National Prison. . . . . . . . . . 673 

42 Province Jails ................ 14,035 

23,384 

Viet Con, 

2,934 

1,513 

809 

296 

12,069 

17,621 

Prisoners 0/ wjlr 

41 

o 

137 

o 

B86 

1,064 

Three possible ways of alleviating the overcrowded conditions in 

the prisons, brought on by the escalation of the war, were suggested: 

a prisoner of war camp construction program; a broadening or the 

prisoner o[ war concept beyond the terms of Article 4 of the Geneva 

Prisoner of War Conventions so as to include more Viet Gong in 

the prisoner of war category; and the establishment by the Vietnamese 

government of re·education centers to separate and rehabilitate suspects who either did not qualify for prisoner of war status or were to 

be brought before a criminal coun as civilian defendants. 

In August 1965 the U.S. government and the Vietnamese govern· 

ment notified the International Committee of the Red Cross that 

th~ir armed forces were abiding by and would continue to abide by 

the Geneva Conventions. In September a Vietnamese·U.S. joint 

military committee was appointed to work Out details on the applica· 

(ion of the Geneva Prisoner of War Conventions in Vietnam. By 

October the committee had issued three-by-five-inch cards and other 

training aids for the trOOPS, explaining prisoner of war treatment 

under the Genevll Conventions. A program of instruction for all 

U.S. and Vietnamese military units was established to teach the basic 

rules to be applied in the handling of prisoners. U.S. units and 

advisers were instructed to identify and record all captives turned 

over to the Vietnamese, specifying to whom the captives were transferred. Vietnamese military legal advisers were briefed by the MACV 

Staff Judge Advocate on the legal aspects of applying the conventions. 

The Commander. U.S. Military Assistance Command, Vietnam. 

established a policy that all suspected Viet Cong captives taken by 

U.S. forces were to be treated initially as prisoners of war by the 

capturing unit. Capturing units were responsible for all of the enemy 

taken prisoner during the course of operations, from the time of their 

capture to the time the prisoners were released to Vietnamese authorities. Captives were to be interrogated and detained by U.S. forces 
6G LAW AT WAR 

only long enough to obtain from them any legitimate tactical intelligence they possessed. Captives were then to be sent to a combined 

U.S.-Vietnamese Army interrogation center for classification and further processing. Prisoners of waT were sent to prisoner of war camps; 

innocent civilians were released and returned to the place of capture, 

if possible; civilian defendants were turned o\'cr to Vietnamese civil 

authorities or tbe province security committee; fermeT Viet Cong 

seeking amnesty under the Chicu Hoi (Open Arms) program were 

sent to the Chicu Hoi center. Chien Hoi was an amnesty program 

established by the Vietnamese government to encourage Viet Cong 

to return to government control. 

The classification of Viet Cong combatants and Viet Cong sus· 

pects posed an interesting legal problem. Because it believed the Viet 

Cong were traitors and criminals, the Vietnam government was reo 

luctant to accord prisoner of war status to Viet Cong captives. Furthennore it was certainly arguable that many Viet Cong did not meet 

the criteria of guclTillas entitled to prisoner of war status under Ar· 

ticle 4, Geneva Prisoner of War Conventions. However, civil incarceration and criminal trial of the great number of Viet Cong was too 

much for the civil resources at hand. In addition, Article 22 prohibited the mingling of civi l defendants with prisoners of war. By 

broadly construing Article 4, so as to accord full prisoner of war 

status to Viet Cong Main Force and Local Force troops, as well as 

regular North Vietnamese Army troops. any Viet Cong taken in com-

~at would be detained for a prisoner of war camp rather than a cililian jail. The MACV policy was that all combatants captured 

luring military operations were to be accorded prisoner of war status, 

irrespective of the type of unit to which they belonged. Terrorists, 

spies, and saboteurs were excluded from consideration as prisoners of 

war. Suspected Viet Cong captured under circumstances not warranting their treatment as prisoners of war were handled as civilian defendants. MACV policy concerning the classification and treatment 

of prisoners or war was first codified in MACV Dircctive 381-11. 

dated 5 March 1966. (See Appendix D.) 

The delegate of the International Committee of the Red Cross 

speaking in Saigon had the following to say about the MACV policy 

concerning treatment of Viet Cong as prisoners of \var: 

The !\IACV instruction ... is a brilliant expression of a liberal and 

realistic attitude . . .. This text could very well be a most important one 

in the history of the humanitarian law, for it is the first lime ... that a 

government goes far beyond the requirements of the Geneva Convention 

in an official instruction to its anncd forces. The dreams of today are the 

realities of tomorrow, and the day those definitions or similar ones will 

become embodied in an intemational treaty . . . will be a great one for 

man concerned about the protection of men who cannot protect themselves. 
PRISONERS OF WAR AND WAR CRIMES r,7 

... May it then be remembered that this light first shone in the darkness 

of Ihis tragic war or Vietnam. 

Establishing a Prisoner 01 War Program 

On 27 November 1965 the Joint Military Committee proposed 

a workable plan for application of the Geneva Prisoner of War Conv~ntions by the U.S., Vietnamese, and Fr~e World forces. The plan 

called for th~ construction of fiv~ prisoner of war camps, one in each 

corps tactical zone and one in the Capital Military Region (Saigon). 

each having an initial capacity of 1,000 prisoners. Each camp would 

be staffed by VieLnam~se military police. with U.S. military police 

prisoner of war advisers also assigned to ~ach stockade. Th~ plan was 

approved in Dec~mber 1965-a temporary prisoner of war camp was 

to be established at Bien Hoa in early January 1966. with permanent 

prisoner of war camps to follow. Prisoner of war camp construction 

continued to receive priority command attention in 1966. The Bien 

Hoa camp in III Corps was opened in May. the Pleiku camp in II 

Corps was completed in August, and the Da Nang camp in I Corps 

was opened in November. Late in the year work was begun on' the 

Can Tho camp in IV Corps. 

The objectives for the prisoner of war program for 1967 were ambitious: to identify and transfer prisoners of war in civilian jails and 

prisons to Vietnamese Army prisoner of war camps; to establish a 

program of repatriation of prisoners of war; to promulgate the: provisions of the Geneva Conventions of 1949; to establish effective prisoner of war accountability procedures and maintain records for the 

identification and handling of prisoners of war; to construct additional prisoner of war camps as required; to establish prisoner of war 

labor and educational programs; to adhere to the Geneva Prisoner of 

War Conventions as closely as possible with respect to mail, medical 

attention. Red Cross visits. visiting privileges, and health and welfare. 

By the end of 1967 the prisoner of war camp capacity had in· 

creased from 3,000 to 13.000. In March 1968 a camp for female prisoners of war was established at Qui Nhon. and in April steps were 

taken to concentrate all Viet Cong prisoners of war under age eighteen 

at the Bien Hoa camp. where they received special rehabilit:llion, 

education, and vocational training. A central prisoner of war camp 

was constructed at Phu Quae Island. off the coast of Cambodia, and 

by the end of 1968 the prisoner of war camps could house a popula· 

tion of 21.000 normally, and a total of 32.000 on an emergency or 

short·range basis. All gradually expanded until by II December 1971 

the Vietnamese government held 35,665 prisoners of war III SIX 

camps. Of these, 13,365 had been captured by U.S. forces. 
68 LAW AT WAR 

Inspections by the InlulIatio'lal Committee of tIlt! Red Cross 

Construction of the prisoner camps was a major feat in itself, but 

the U.S. and Vietnamese governments worked hard in many other 

areas to fulfill thciT responsibilities under the Geneva Conventions. 

At first the Vietnam government was reluctant to c(H)perate with the 

International Committee of the Red Cross with respect to inspections 

and furnishing lislS of prisoners. Furthermore, the Democratic Republic of North Vietnam refused to allow the Red Cross any access to 

theiT prisoners and the South Vietname.o;e felt there should be rec· 

iprocity. In South Vietnam confinement facilities were the responsibility of the Minister of the Interior, and at the urging of the 

United States he agreed to allow more visits by Red Cross represenr.ativ~s to Vietnamese civil prisons and re-~ducation centers where prisoners of war were being detained until the completion of the camps. 

In early 1966, as a result of U.S. efforts. r~presentatives of the International Committee of the Red Cross visited prisons at Tam Hiep. 

Con Son. and Da Nang, and the prisoner of war camp under construction at Bien Hoa. AFter it was completed. the Bien Hoa camp 

was again visited by Red Cross representatives in August 1966. The 

representatives were favorably impressed with the camp and agreed 

to provide health and welfare items on their next visit. In October 

1966 th~ committee's representatives visited detention facilities in Da 

Nang and Pleiku, and again they were favorably impressed. Another 

Red Cross representative, accompanied by a Saigon delegation. made 

an exteosive tour ITom 29 Nov~mber until 8 December 1966 of South 

Vietnamese, Free World, and U.S. prisoner of war facilities throughout the Republic of Vietnam. The representative visited Vietnamese 

prisoner of war camps in I, II. and III Corps Tactical Zones; two 

Vietnamese Army hospitals; the Australian prisoner of war collecting 

point and field hospital; the Republic of Korea CapitOl Division collecting point and hospital; the four U.S. collecting points and six 

U.S. hospitals; the 111 Marine Amphibious Force special detention 

facility at Da Nang; and the Philippine hospital at Tay Ninh. In 

1967 members of the international press accompanied the representatives on their visits to two camps. 

Despite the many problems they encountered, the record is clear 

that the United States and Vietnam made a vigorous effort to adhere 

to the exacting standards of the Geneva Prisoner of War Conventions. 

Within the Military Assistance Command, Vietnam. the provost marshal was responsible for advising the Vietnamese prisoner of war 

camps, ensuring that they were operated in conformity with Geneva 

requirements. and acting as the point of contact for represent.1tives of 

the International Committee of the Red Cross. MACV policy and 

procedures pertaining to Red Cross inspections of prisoner of war 
PRISONERS OF WAR AND WAR CRIMES 

INTERNATIONAL CoMMl'M'EE OP THE REO CROSS VISITS VU:TNAMESB ARM'J 

PRISONER OP WAR CM.IP AT LoNO BINH 

camps were set forth in MACV Directive 190·6. (See Appendix E.) 

In August 1966 a committee began to screen prisoners who had 

been placed in dvilian jails before the construction of the prisoner 

of war camps. The committee, which was comjX>SCd of representatives 

from MACV directorates of personnel, intelligence, and logistics and 

their Vietnamese counterparts, screened all four national prisons and 

37 provincial jails. The committee identified 1,202 men as prisoners 

of war; all but 27 of these had been transferred to prisoner of war 

camps by the end of 1967, as the screening process continued. 

Several programs to improve the living standards of prisoners of 

war were approved in 1967, among them a pilot educational program 

to teach reading and writing. Mailing privileges were granted the 

prisoners and visitation rightS given the families of Viet Cong prison. 

ers of war. Health and comfort items were issued free, and a dispen· 

sary with a medical doctor and staff was established at each camp. In 

August 1967 the MACV directorate of personnel established a Prisoner of War Work Advisory Detachment to encourage and assist 

work programs at the prisoner of war camps. In December 1967, the 

Vietnamest government approved a labor program whereby prisoners 

of war would work and be paid 8 piasters per day. This program, 

which was in accordance with recommendations of the Geneva Prisoner of War Conventions, became effective I April 1968. 
70 LAW AT WAR 

Repatriation EUorts 

Throughout the cour$C of the war the allies maintained a major 

and sustained effort to promote a reciprocal program of prisoner repatriation. On 3 February 1967. twenty-eight North Vietnamese prisoners of war were released at the Ben Hai River to return to North 

VielOam through the demilitarized zone. On II March 1967, two 

Viet Cong prisoners of war captured by U.S. forces were released in 

response to the release of two U.S. prisoners of war. On 20 March 

two North Vietnamese PT boat crewmen were repatriated through 

Cambodia; on 22 March the South Vietnamese released twenty-two 

Viet Cong prisoners of war and on 23 June 1967 three Viet Cong 

captured by U.S. forces were released at a jungle rendezvous in exchange rOT the release of tWO U.S. prisoners and one Filipino captured 

by the Viet Cong. In April 1967 a screening program was begun to 

identify prisoners of war who, because of illness, were qualified for 

release under Articles 109 and 110 of the Geneva Conventions. The 

.screening team included two Swiss physicians under contract to the 

International Committee of the Red Cross (ICRC). Of the 286 prisoners screened, 135 qualified medically for repatriation. Of those 

qualified for repatriation, only 39 wished to return to North Vietnam. 

To this group was added a remale prisoner of war who had given 

birth in a South Vietnamese hospital. The 40 prisoners and the infant 

were repatriated to North Vietnam through the demilitarized zone 

on 12 June 1967; on the same day rour Vict Cong-U.S. prisonerswere released in South Vietnam. During 1967 a total of 139 prisoners 

of war were released in South Vietnam or repatriated to North 

Vietnam. 

In 1968 the government of South Vietnam, with U.S. support, 

sought to repatriate 40 sick and wounded prisoners of war to North 

Vietnam under Articles 109 and 110 of the Geneva Conventions. The 

prisoners were examined by a Red Cross physician and had expressed a desire to return to the north. The Vietnamese made the 

repatriation offer through the Red Cross, which sent a telegram to the 

North Vietnamese Minister of Foreign Affairs, proposing repatriation 

in late January or early February. \Vhen no reply was received, the 

South Vietnamese asked the International Committee of the Red 

Cross to renew its efforts in May, but there was still no reply by the 

end of the year. Efforts by the Somh Vietnamese and the Red Cross 

to repatriate these 40 prisoners of war, and 24 civilians as well, con· 

tinued through 1969, but to no avail. At lhe Paris Peace Talks of 13 

November 1969 the South Vietnamese proposed returning 62 sick 

and wounded prisoners of war to North Vietnam. The offer was de. 

clined. It was the position of the South Vietnamese that if Geneva 

Prisoner of War Articles 109 and 110 required the capturing state to 
PRISONERS OF WAR AND WAR CRIMES 71 

repatriate the sick and wounded, these articles also required the home 

state of the prisoners of war to accept those prisoners who wished 

repatriation. The South Vietnamese even proposed transporting sick 

and wounded prisoners of war by sea to any port or point on the coaSt 

of North Vietnam, but received no response to this offer. 

During 1969 the Republic of Vietnam did release 191 Viet Gong 

prisoners of war in South Vietnam for reasons of youth, age, or pregnancy under Article 21 of the Geneva Prisoner of War Conventions. 

Also, some prisoners of war who were not deemed to be " hard-core" 

Viet Cong were transferred to the fa\'ored Hoi Chanh Status, under 

the Chieu Hoi amnesty program. These transfers particularly applied 

to youths seventeen and under. Efforts to repatriate prisoners of war 

to North Vietnam and to secure the release of U.s. and South Vit:tnamese prisoners of war continued through 1970, bUl met with little 

success. In J anuary 1971 the Republ ic of Vietnam offered to repatriate all sick and wou nded prisoners to North Vietnam. This offer 

was ignored. On 29 April 197 1 the Vietnam government requested 

North Vietnam to conclude a bilateral agreement for the repatriation 

or internment in a neutral country of those prisoners of war who had 

been held captive for a long period o( time. This offer was ignored, 

but in May 197 1 North Vietnam finally agreed to accept 570 sick 

and wounded prisoners. The International Committcc of the Red 

Cross interviewed 660 sick and wounded prisoners. o( whom only 

13 wished to he repatriated. As arranged, these thirteen were taken 

by sea to a point off the coast of Nonh Vietnam; but before they 

were released North Vietnam canceled the agreement to accept 

the prisoners and they were returned to Da Nang. This r.nded repatriations for the remainder of 1971. 

Throughout the war the United States had urged the South Vietnamese to release qualified prisoners of war, seeking possible reciprocal action by North Vietnam. The South Vietnamese had been 

understandably reluctant to release unilaterally large numbers of 

able·bodied prisoners of war, but after the national election of Oc-

[Cber 1970, the Republic of Vietnam transferred 2,300 Viet Cong 

prisoners who pledged loyalty to the government to Chieu Hoi cen· 

ters and released 623 outright. Through 1 March 1972, SOUlh Vietnam released a total of 5,960 prisoners of war. Of this total 188 were 

repatriated to North Vietnam, 900 were released in South Vietnam. 

1,784 were reclassified, and 3,084 were accepted into the Chieu Hoi 

program. In contrast, by the end of 197 1 the Communists hat.! released 53 Al1lcri~n prisoners of war; they had allowed no visits by 

the International Commillee of the Red Cross to Communist prisoner 

of war camps in North Vietnam or Soum Viem3m; and they had 

made no effort to repatriate sick and wounded prisoners. Mailing 

privileges ror U.S. prisoners held in North Vietnam had been al-
72 LAW AT WAR 

lowed sporadically and in an arbitrary manner. Finally. the Communists had refused to furnish a comprehensive and accurate list of 

the prisoners lhey held. Allhough both the Viet Cong and North 

Vietnamese consistently maintained thal their prisoners received humane treatment, their efforts to comply with the provisions of the 

Geneva Prisoner of War Conventions were negligible. 

MACV Policy 011 PreventiOIl and Investigation of War Crimes 

The first MACV directive dealing specifically with war crimes 

was Directive 20-4, dated 20 April 1965. Its purpose was to designate 

the agencies responsible for conducting investigations of alleged or 

apparent violations of the Geneva Conventions innicted by hostile 

forces upon U.s. military or civilian personnel assigned to Vietnam. 

The directive defined war crimes as violations of the law of war, and 

stated that "grave breaches" of the Geneva Conventions. such as will· 

ful killing. tonure, or inhuman treaunent of persons protected by 

the conventions constituted war crimes. The directive also addressed 

itself to "proh ibited acts" under common Article 3 of the Geneva 

Conventions, defining them as those acts which "would be war crimes 

but for the fact the existing conflict is not yet deemed to be interna· 

tional in character." In retrospect. this early directive is interesting in 

two respects. The directive concerned itself only with [hose violations inflicted by hostile forces upon U.S. citizens. and it stated that 

the fighting in Vietnam was not yet an armed international conflict 

in the legal sense. 

The reasons for drafting the directive in this manner were im· 

mediate and practical. Prior to the introduction of ground combat 

units in Vietnam in March 1965, U.S. troops in Vietnam sen'ed in an 

advisory capacity; U.S. units had not planned or executed combat 

operations or taken prisoners. and there were no indications that U.S. 

advisers were violating the Geneva Conventions. To the contrary. 

the only atrocities known to the U.S. command at the time were those 

committed against U.S. advisers by the Communists. MACV Direc· 

tive 20-4 was prc;.lllulgated to ensure appropriate investigation of sllch 

atrocities. (See AppePidix F.) As to the international nature of the 

conflict, the principal enemy of the Republic of Vietnam at the time 

was the Viet Cong. whose members the republic regarded as domestic 

criminals. The government of North Vietnam did not admit that its 

troops were in the south. or that it was in any way sponsoring the 

Viet Cong, whom it considered local patriots struggli ng against a 

dictatorial regime. 

MACV Directive 20-4 was updated on 25 March 1966 with several significant changes. The scope of the directive was broadened 

to include war crimes committed by U.S. personnel as well as those 

against U.S. personnel. In consonance with the official U.S. position 
PRISONERS OF WAR AND WAR CRIMES 73 

that the struggle in Vietnam by then constituted an armed international conflict, 110 mention was made of a lesser category of "prohibited acts," as defined in the earlier directive, and eighteen examples 

of acts which constilliled war crimes were given. 

The directive clearly staled that the wil1£ul killing, torture, or 

inhuman treatment of, or willfully causing great suffering or serious 

injury to the body or health of persons taking no active part in the 

hostilities, including members of the armed forces who had laid 

down their arms or who were nOt combatants because of sickness, 

wounds, or any other cause, was a war crime. Other acts specified as 

war crimes were maltreatment of dead bodies, firing on localities 

which were undefended and without military significance. pillage or 

purposeless destruction, killing without trial of spies or other persons 

who committed hostile acts, and compelling prisoners of war or 

civilians to perform labor prohibited by the Ceneva Conventions. 

The directive went on to fix responsibility on every member of 

the U.S. armed forces (or reporting incidents which could constitute 

war crimes. It stated that "It is the responsibility of all military personnel having knowledge or receiving a report of an incident or of 

an act thought to be a war crime to make such incident known to 

his commanding officer as soon as practicable. Personnel performing 

investigative, intelligence, police, photographic. grave registration or 

medical functions, as well as those in contact with the enemy will, in 

the normal course of their duties, make every effort to detect the 

commission of war crimes and will report the essential facts to their 

commanding officer." 

ru was the -practice for all MACV directives, MACV Directive 

20-4 was updated periodically. It was also supplemented by a number 

of other directives pertaining to the Geneva Conventions, war crimes, 

and prisoners of war. MACV Directive 27-5. Legal Services: War 

Crimes, and Other Prohibited Acts, dated 2 November 1967, listed 

acts which constituted war crimes and stated, "Commission of any 

act, enumerated in paragraph 4, above, or constituting a war crime 

is prohibited. Violation of this directive will be punishable in accordance with the provisions of the Uniform ('.ode of Military Justice." Other regulations pertinent to war crimes and prisoners of war 

were MACV Directive 190-3, Military Police: Enemy Prisoners of 

War, 6 April 1967; MACV Directive 20-5, Inspections and Investigations: Prisoners of War-Determination of Eligibility, 17 May 1966; 

MACV Directive 38146, Military Intelligence: Combined Screening of Detainees, 27 December 1967; MACV Directive 335·1, Reports of Serious Crimes or Other Incidents, 5 January 1966; and 

Geneva Conventions Checksheet sent to all judge advocates in Vietnam. (See App~'ldix G.) 

Throughout 1965, 1966, and 1967 the most grievous breaches of 
74 LAW AT WAR 

the Geneva Conventions continued to be those committed by the 

Communists, and there were several cases where U.S. troops were 

murdered and their bodies mutilated by the Viet Cong or North 

Vietnamese. The Viet Cong policy of kidnapping civilians. assassinating public officials, and terrorizing enlire populations continued. 

Communist tactics against lhe Montagnards. indigenous mOllntain 

tribes, were particularly vicious. 

On the American side, the sudden massive U.S. troop buildup in 

Vietnam that began in 1965 created many problems for the U.S. 

command. and incidents of war crimes by U.s. troops began to be 

reported. For example. during the period between 1 January 1965 

and ~ I August 1973, there were 241 cases (excluding My Lai) which 

involved allegations of war c:-imcs against Uniled States Army troops. 

One hundred and sixty of these cases. upon investigation. were determined to be unsubstallliated. Substantiated allegations of war crimes 

violations committed in Vietnam by personnel subject to the Uniform 

Code of Military Justice were prosecuted under the provisions of the 

code. From January 1965 through August 1973, 36 cases involving 

war crimes allegations against Army personnel were tried by courtmartial. Sixteen cases involving thirty men resulted in acquittal or 

dismiMaI "fter arraignment. Twenty case$ involving thirty-one Army 

servicemen rcsulted in conviction. By the lime Ille U.S. tTOOP buildup 

was in full l'iwing, various :MACV directives contained a sufficiellt 

body of law clearly to define, prohibit, and PTQvide for the investigation of war crimes. The constant rotation of troops created a continllal necrl to get l.\l(' information to the troops. 

Troop Educatio" 

Long before U.S. troop units were engaged in combat in Vietnam, 

the Army had included in its training programs material designed to 

inculcate in the troops a knowledge of their rights and obligations 

under the Geneva Conventions of 1949. Army Regulation 350-216. 

dated 19 December 1965, placed upon the Commanding General, 

Continent.11 Army Command, the responsibility of incorporating 

within appropriate training programs periods of instruction designed 

to insure tlmt all members of the Army were familiar with the 1949 

Geneva f'..onventions. Tht: soldier's first introduction to the Geneva 

Conventiom was during basic training, where he received two hours 

of formal instruction, followed by a lest, the resulu of which were 

noted on his record. During advanced individual tril.ining, instruction 

in lhe Geneva Conventions was integrated with other subjects and 

principles were applied during field exercises. Annex B of Cominental Army Command Regulation 350-1, dated 15 June 1965, required 

commanders to take continuing action to in('oq)()rate instruction on 
PRISONERS OF WAR AND WAR CRIMES 75 

the Ct:ncva C.onventions in their training programs. Training programs pc!rlaining to the Geneva Conventions were the subject of a 

comprebem:iv~ r('view, and several steps were taken to increase and 

improve instruction by the use of training films and combined 

judg:r advocate<ombat arms officer training teams. 

In Vit'lnam, Geneva Conventions training was intensified and became more formalized as troop strength increased. As early as August 

1965, the Commander, U.S.Military Assistance Command, Vietnam, 

directerl that the educational program for aIL U.S. military personnel 

in South Vietnam include the i.ssuance of a three-by-five-inch card 

conL1.ining tht' basic requirements of the Geneva Conventions pertaining to the treatment of prisoners of war. By October 1965 cards had 

been prepared in English for U.S. personnel and in Vietnamese for 

Vietnamese armed forces personnel. U.S. units were instructed in 

the basic mil'S of handling prisoners and MACV judge advocate personnel hriefed Vietnamese military legal personnel on the application of the convemions. Troops arriving in Vietnam received Geneva 

Conventions orientation during their initial in-processing period, 

where they 31so received a copy of the card, '"The Enemy in Your 

Hands." (St~ App~lIdix H.) 

The Commander, U.S. Military Assistance Command, Vietnam, 

continuously :md emphatically stressed the importance of all troops 

acting in accordance with the laws of war. In November 1965, he 

disc ussc:d wi:h the chief of staff of the Vietnamese Joint General Staff 

the importance of adhering to the Geneva Conventions pertaining to 

the trc=atment of prisoners of war. The commander conferred periodically with Vietnamese officials on this subject and on the imparlance of proper deportment by all troops in genera!. The results 

of this concern became noticeable in several areas, one noteworthy 

example being the promulgation in March 1967 by the Vietnamese 

government of a National Decree Stating the provisions of the four 

Geneva Conventions of 12 August 1949. Iff August 1966 the Commander, U.s. Military Assistance Command, Vietnam, personally 

wrote separate letters to all of his major commanders on this same 

theme, stating in part, "Active command interest in this program, in 

coordination with Republic of Vietnam Armed Forces authorities, 

which assures that prisoners of war and combat captives are properly 

processed and handled in accordance with International Law is 

vila!." 

This theme was repeated over and over again. A MACV command 

information bulletin, titled Application of the Geneva Prisoner of 

War Conventions in Vietnam, dated October 1966, instructed the 

U.S. troops that the Geneva Prisoner o[ War Conventions applied 

to .Vietnam even though there was no formal declaration of war 

by the United States. Moreover, the United States was applying not 
76 LAW A:r WAR 

only the letter of the Jaw, but also the spirit of the Geneva Conventions, which were designed to protect the individual who could 

no longer protect himself. Prisoner of war treatment was to be 

extended to all Viet Cong and to all members of regular North 

Vietnamese uniLS, whether captured in combat or not, as long as 

they were not criminals. spies, saboteurs, or terrorists. Criminals, 

spics, saboteurs. and terrorists werc to ~ given humane treatment 

and turned over to the Vietnamese government for trial. 

The bulletin explained the steps to be taken immediately upon 

capture of enemy personnel, and su-essed that prisoners must be 

protected from torture, humiliation, degrading treatment, reprisals. 

or any act of violence. The categories of detained J>l!rsoflS (innocent 

civilians, prisoners of war, returnees, and civil de£endants) were 

listed, with a reference to the MACV directive which outlined 

processing procedures for each type of detainee. The bulletin went 

on to explain the importance of observing humanitarian principles 

in waging war, giving specific reasons why it was in the interest of 

the U.S. for American troops to treat prisoners humanely. In conclusion, the bulletin urged the troops to follow the TUles on the 

card, "The Enemy in Your Hands." In addition, through U.S. 

judge advocate resources in Vietnam the MACV Staff Judge Advocate's office monitored the troop education program and disciplinary 

aspects of Geneva Conventions violations. 

The~ efforts on the part of the U.S. command were commended 

by the Red Cross in a letter of 5 January 1968 to W. Averell Harriman. U.S. Ambassador at Large. Samuel A. Gonard, President of 

the International Committee of the Red Cross, wrote: "We are 

convinced that in the context of the war in Vietnam the U.S. Forces 

are devoting a major effort [Q the spread of knowledge of the Geneva 

Conventions." 

War Crimt!$ Invt!stigation 

For the most part, war crimes committed by U.S. forces in Viet· 

nam fell into tWO principal categories: willful murder or assault of 

noncombatants; and mutilation and maltreatment of dead bodies. 

Serious incidents involving assault. rape. and murder that were not 

directly connected with military operations in the field were not 

dlaraCterized as war crimes but were reponed through military 

police channels as violations of the Uniform Code of Military JuStice. 

Acts constituting war crimes were also offenses against the Uniform Code of Military Justice. and as such were investigated by 

agents of the Criminal Investigation Division. Pertinent MACV 

directives required a concurrent investigation of war crimes by an 

investigating officer who was concerned nOt only with the details 
PRISONERS OF WAR AND WAR CRIMES 77 

of the crime, such as the persons involved and where, when, and 

what occurred, but also with the broader question of how and why 

the incident took place. The scope of this investigation included 

an examination of the established rules of engagement and com· 

mand and control procedures that were in effect at the time, and 

how these procedures were implemented. The question to be 

determined was whether there was any failure of command 

responsibility. 

""hen an investigation was completed, the report was delivered 

to the general court-martial convening authority. who had appointed 

the investigating officer. The appointing authority reviewed the 

report and approved or disapproved it. If approved. the report of the 

investigation with the appointing authority·s indorsement was for· 

warded through channels to the Commander. U.S. Military Assis. 

lance Command. Vietnam. At MACV headquarters it was circulated 

to appropriate staff offices, including the Staff Judge Advocate, for 

review. The report could be returned for further action or approved 

by the MACV commander or chief of staff. After final review, a war 

crimes investigation report concerning any person was forwarded to 

The Judge Advocate General, Department of the Army. 

The Commander, U.S. Military Assistance Command. Vietnam, 

had considered establishing special war crimes teams and having 

the Army maintain centralized files on war crimes for all services, 

but this was not done because the laws prohibiting war crimes and 

the administrative and judicial machinery for investigating and 

punishing such offenses were judged adequate. Murder. rape. assault, 

arson. pillage, and larceny were all punishable as offenses against 

various sections of the Uniform Code of Military Justice, and there 

were many directives from Military Assistance Command, U.S. 

Army, Vietnam, and units specifying and prohibiting various acts 

in the war crimes category. Representatives of the military police. 

Criminal Investigation Division, Inspector General, and Judge Advocate had experience in conducting investigations; they. as well as the 

commanders, and. indeed, all military personnel, had the resJXInsi· 

biUty for reporting possible violations of the laws of war so that 

an appropriate investigation could be conducted as specified by 

regulation. 

Despite laws and preventive education, war crimes were com· 

mitted. Most were isolated incidents. offenses committed by individual U.s. soldiers or small groups. Investigations were conducted. 

and the records of courts-martial proceedings contain the cases of 

individuals who were tried and punished. My Lai, the most notori· 

ous offense committed by U.S. troops in combat in Vietnam. was 

not the result of inadequate laws or lack of command emphasis on 

those laws; it was the failure of unit leaders to enforce the clear 
78 LAW AT WAR 

and well-known procedures set forth in applicable regulations. It is 

tragically true that troops on both sides commiued atrocities; but 

had it not been for the genuine concern of commanders at the 

highest levels that U.S., VicUlamese, and allied (orees conduct themselves humanel y and in accordance with the laws of war, the Vietnam 

War probably would have been far more brutal. 

It was evident that international law was inadequate to protect 

victims in wars of insurgency and counterinsurgency, civil war, and 

undeclared war. Tile efforts o£ the international community to 

codify the humanitarian law of war in 1949 drew U(XI1l examples 

from World War II which simply did not fit in Vietnam. The law 

left mudl room for expediency, political manipulation, and propaganda. The hazy line between civilian and combatant became even 

vaguer in Vietnam. 

There was an absence of effective power to insure compliance 

by both sides with the Geneva Conventions or to give reassurance of 

at least minimum protection for victims of the armed conflict. The 

inability of the International Committee of the Red Cross to function 

effectively on behalf of U.S., South Vietnamese, or other Free World 

forces was particularly tragic. The law of war was not completely 

ineffective; c.ert.ainl y many comootanls and noncombatants survived 

the war because of the application of the law of war. The U.s. military 

lawyers' role in applyi ng the known and developed humanitarian 

rules for armed conRict brought credit to lhe legal profession and 

to the U.S. Armed Forces. 
CHAPTER V 

Claims Administration 

The arrival in South Vietnam of massil'e amounts of materiel 

and large nllmbers of troops in the mid- 1960s dearly established 

the need for an effective claims program to cope with incidents that 

would involve claims for compensation against the United States. 

It was also apparent that a well-organized and well-administered 

indemnification program would be an invaluable asset to the Republic of Vietnam and its allies. Not only would such a program 

deny the insurgents a propaganda weajXln, but it would create a 

climate favorable to respect for law and order. 

There was special need for an effective claims program in a 

country beset by insurgency, where a ponion of the population was 

hostile to the government, and another substantial portion was 

apathetic. The apathy was engendered by a temIX>rary lack of relationship with the government, by a historical dissociation al1d a 

reluctance to resort to a court of law to seule contentions, or by a 

loss of faith in the benefits of government. 

It was clear that before the insurgency could be overcome tht: 

Republic of Vietnam had to win over a large section of the I>opulation that was neither rriendly nor hostile to the government. One 

method to offset hostility to a degree. and to give assurance to the 

apalhetical IX>rtion of the population, was to provide fair indemni. 

fication for losses attributable to governmental activity. Fair, timely 

restitution would show the concern of the government for justice 

and the welfare of its citizens. assist in spreading the government's 

influence, and serve to neutral ize the enemy's propaganda. It would 

present the insurgent with a governmental activity he could neither 

match in service to the populace nor overcome by {ear or violence. 

OPerations Before I966 

The U.S. claims operations in South Vietnam immediately before 

the major troop influx in 1965 and 1966 were conducted within 

the Claims and Tort Law Section of the Office of the Staff Judge 

Advocate, Military Assistance Command, Vietnam. The pace of 

claims operations was fairly steady. Although each increase in mili-
80 

tary activity brought an increase in foreign c1aims--claims filed by 

inhahitants of South Vietnam against the United States-most cases 

at this lime were military claims arising from the loss or destruction 

of personal p::>SScssions of MACV advisers or U.S. Special Forces 

troops. 

The MACV Staff Judge Advocate's office soon gained a reputation 

for getting into the field to provide fast claims service for such I~s. 

Three incidenu will serve to illuStrate the methods of the claims 

teams in dealing with military claims. 

The bombing of the large Brinks Hotel in downtown Saigon. 

where a number of officers were billeted. during Christmas of 1964 

was onc of the first Viet Cong attacks directed solely against Americans. The smoke had hardly lifted when the MACV Staff Judge 

Advocate's representatives weTC on the scene, photographing and 

recording the evidence. By the following morning notices were 

posted informing the survivors of the location of nearby oHices for 

filing their military claims. Bea.use of the diligent efforts of the 

MACV Staff Judge Advocate Claims Branch, substantially all claims 

of U.s. personnel were paid within several days of the explosion. 

A second incident, a Viet Cong attack in Pleiku in early February 

1965, promptly brought two members of the Saigon claims team to 

the site to receive Army claims generated by the incident. An enlisted 

claims clerk remained for a week to assist in accurate investigation 

and preparation of the many claims, and in less than tWO weeks money 

was on the way to the last of those American soldiers who had been 

affected by the attack. 

The Pleiku claims processing procedures were used successfully 

again in the hotel bombing of 10 February 1965 at Qui Nhon in 

which twenty-two Americans were killed and twentr·one wounded. 

Most of the residents of the destroyed quarters lost all their possessions, equipment. and clothing. At the suggestion of the MACV judge 

advocate involved in the claims efforts, the survivors were flown to 

Saigon, where they received their claims money and were able to 

obta in necessary clothing and personal items at the Saigon exchange 

outlets before returning to their section stations that same day. 

The achievements of the claims teams are all the more noteworthy when some of the hardships associated with claims operations 

are taken into account. 

The Claims and Tort Law Section o( the Staff Judge Advocate, 

MACV, coruisted in 1965 of one officer, several enlisted men, and 

four or five Vietnamese. The office was primarily administered by 

a young Vietnamese national of Chinese origin who alone controlled 

and could locate claims in process. Files and index cards were 

arranged in Ch inese fashion. from back to front and from bottom 

to tOp. There was a lack of qualified interpreters, and generally each 
CLAIMS ADMINISTRATION 81 

JUOGl:: ADVOCATE CLAIMS OFFICeR EXAMINES VieT Coso BoMB DAMAOF, 

TO BILLRT IN SAlOON 

claim form was completed for the claimant by one experienced but 

painfully slow Vietnamese national. 

Payment o[ claims also presented major difficulties. The normal 

method of payment was by check, but it was discovered that it was 

almost impossible for a Vietnamese national outside Saigon to cash 

a check without incurring a discount o[ 50 percent or more. This 

problem was solved by the appointment of Class A agenu, who were 

sent into the field to find the claimant, secure his acceptance of the 

amount, and d isburse payment in cash by actuall y negotiating 

t he check. 

In early 1965 the number of military and fore ign claims mounted 

by staggering multiples and descended upon rhe relalively small 

staff, driving the claims operation of the MACV Staff Judge Advocate's office lOward a crisis that was averted only by the hard work 

and initiative of the Americans and Vietnamese working together. 

The first step in coping with the rise in the number of claims 

was to obtain qualified enlisted claims clerks and interpreters. To 

keep the work load under control, the U.S. claims personnel worked 

late each n ight, identifying, indexing, and processing prompdy each 

cla im filed. A full y cross-indexed cud system was set up. As new U.S. 

un its arrived in Vietnam, members of the MACV Staff J udge Advo--
82 LAW AT WAR 

cale Claims Section visited them to explain claims processing procedures, basic Vietnam government structure, and sources of aid for 

those injured by combat action. Claims regulations were completely 

rewritten to adjust procedures to the realities and to educate further 

the claims personnel of incoming unitS. Trilingual (English, Vietnamese, and Chinese) claims forms were prepared and primed. 

In addition to handling these routine malters, the chief of the 

Claims Section participated in the negotiations with the Korean 

govemment concerning the payment of foreign claims generated by 

(Toops of the Army of the Republic of Korea who were active in 

Soum VieUlam. In faCt. the MACV Staff Judge Advocate's office was 

to piai' a vital role in the negotiation and implementation of certain 

claims agreements with the Vietnamese government and the Free 

World allies which came to be known as "knock-for-knock" agreements. These compacts contained provisions whereby the government 

of one nation waived the claims against the government of the second 

nation for damage to government property. The agreements did not, 

however. waive the personal right of an individual to claim damages 

in the case of negligence of a member of the force of another allied 

nation. The arrangements nevertheless removed a potential irritant 

to the relationships among the Free World forces. 

Claims Developments 

A significant problem that had arisen by late 1965 was the 

proper handling of claims arising out of the operations of U.S. forces. 

The Foreign Claims Act specifica ll y excluded from payment any 

claim resulting directly or indirectly from combat. Thus, if an aircraft took off on a combat mission, compensation for any damage 

done by its armament or by a crash of the aircraft itself was barred 

from payment by the so-called combat exclusion provision. It was 

not legally possible to plead a change in the nature of the flight by 

abandoning the mission or even the aircraft. 

In August 1965 a military aircraft was disabled by a mechanical 

failure while on a combat mission. The crew, before bailing out. set 

the controls of the aircraft so that if everything went according to 

plan the aircraft would crash at sea. But, for some unknown reason, 

the aircraft circled and crashed in a village, causing personal injury 

and deaths and a great deal of property damage. Use of contingency 

funds was necessary to pay the claims since combat exclusion barred 

payment under the Foreign Claims Act. A trio dispatched from the 

MACV Staff Judge Advocate Claims Section spent two weeks precessing claims on the spot with the Vietnamese villagers. In order 

to gain the good will of the people. the United States was as liberal 

in the disposition of these claims as the law would allow. 
CLAIMS ADMINISTRATION 83 

The case illustrated also the kind of incidents, growing in 

number, that led to claims in the gray area between combat and 

noncombat claims. Finally, in 1968, at the suggestion of MACV, 

the Foreign Claims ACl was amended by Congress to allow payment 

of certain claims indirectly related to combat activities of the 

U.S. forces. 

Claims Rt:spo~uibi/ily 

The responsibilities and organiz.alion of the claims supervisory 

authority in South Vietnam underwent a change in 1966 and again 

in 1968. The Secretary of Defense assigned the U.S. Army primary 

responsibility for the processing of all claims arising in the Republic 

of Vietnam under the Foreign Claims Act and the Military Claims 

Act. This action served to remove the problem of disparity between 

processing procedures and jurisdiction among the several SCTvices. 

In 1966 The Judge Advocate General of the Army assigned 

claims supervisory authority to the Commanding General. U.S. 

Army, Ryukyu Islands (Okinawa), with authority to appoint necessary foreign claims commissions in South Vietnam upon the request 

of the Staff Judge Advocate of Headquarters, U.S. Army, Vietnam. 

Finally, in 1968, the Commanding General, U.S. Army. Vietnam, 

was assigned claims sUpt"rvisory authority with respect to claims 

matters. including the authority to appoint foreign claims commissions in Vietnam. 

During the period 1965-73, the highest total of claims offices 

operating at anyone time was Cony, in 1970. Of this total, fourtet:11 

were foreign claims commissions. Two of the foreign claims commissions were three-member commissions located in the Saigon foreign 

claims office and had approval authority on amounlS up to $15,000. 

The remaining twelve were one-man commissions having authority 

to settle claims not exceeding $1.000. These one-man commissions 

were located throughout South Vielllam. usually at either division 

or area command headquarters. Paymf'nts to foreign nationals were 

made directly to them at each foreign claims office by check and 

were negotiable in piasters only. 

Claims Obligations 

It is illuminating to compare the expenditures under the claims 

program in South Vietnam during the early years under MACV 

and later during the years of peak U.S. troop strength. During riscal 

year 1965 total claims obligations amounted to only $10,000. The 

following fiscal year, payments rose tenfold to $102,000. During 

fiscal year 1967. $650,181 was obligated for the settlement of foreign 

claims and $ 127, 184 [or personnel claims. Fiscal year 1968 produced 
84 LAW AT WAR 

total ex~ndilures exceeding one million dollars in Vietnam for 

the first time when $53 1,000 was obligated for personnel claims and 

$1,098,000 for foreign claims. Fisca l year 1969 produced further 

increases when U.S. troop strength reached its highest le\'el. A lotal 

of $1.993,000 was obliga ted: $757.000 for personnel claims and 

$ 1,236,000 for foreign claims payments. In fisc11 year 1970. foreign 

claims obligations rose to $ 1,534.000 and (Q[a l claims Obligations 

werc $2.555,000. 

Solatium Payments 

In Somh Vietnam it was the custom for a representative of the 

United States to pay a visit of condolence to a Vietnamese injured 

by military activities or to the surVi\'OTS of a deceased victim, and 

fOT a small amount of money or goods such as rice, COOking oils. or 

rood stuffs to be given. The visit and payment Look place when U.S. 

personnel were involved in the incident that caused injury, regardless 

of who was at fault, and even if the incident was techni cally caused 

by combat. The donation was not an admission of fauh , but was 

intended to show compassion. By caring for the victims, the United 

StaleS could assist the civic action program in Vietnam, The recipient 

of the solati um payment would also be ad\·iscd of the procedures 

requ ired 10 present a claim al,'3 iml the U.s. government, if appro.. 

priate. and tJlC location of the nearest U.S. foreign claims commission office, 

The condolence visit was successful in tha t the personal expression of compassion by a representati\'e of the United States made a 

favorable impression on Vietnamese victims who had previously 

regarded the American claims system as efficient, honest, fair, and 

generous-but cold. At the Military Assistance Command, Vietnam, 

a member of the Staff .Judge Advocate's office was designated to 

make condolence !l.lymcnts in incidents in voh'ing MACV personnel 

in the Saigon-Cholon area. 

Vit:hwmest: COVermllt:rlt Claims Programs 

The joilll efforts of the United States and the Republic of Vietnam to establish a Vietnamese claims program had to take imo 

account several aspens of the Vietnamese legal s)'stem. 

As Vietnam moved into the I 960s, the judicial organil..ltion, 

although rather ela borate and comprehensive on paper, functioned in 

practice only in the major cities. Courts at the lowest levels of governmem throughout the countryside were admi nistered by justices who 

were in most cases no! lega ll y trained and whose powers were dependem upon such fa ctors as the military situation, the strength of loca l 

milit.lry personalities, and the National Police effort in the area. 

Although civil disputes such as cla ims could come before these 
CLAIMS ADMINISTRATION 85 

courlS, there was a fundamental reluctance by the Vietnamese to 

Tesort to the legal system. The result was that the courts themselves 

played a rather insignificant role in Vietnamese society. The inclina· 

tion to settle disputes informally with one's neighbor, added to the 

paucity of lawyers in Vietnam and the inability of most pea.sanu to 

afford counsel when available. easily explains the vitality in the old 

Vietnamese adage that it is better to go to hell than go to court. 

It was in the interests of the United States to develop its own 

effcctive claims service as a part of American legal responsibilities 

to the Vietnamese people in time of war; but the service also pointed 

a way to the officials of the Vietnamese government that .they, as 

representatives of the government. could gain the confidence of the 

people by acknowledging their legal righu and by showing an interest 

in the problems and losses caused by Vietnamese military units. 

Three types of claims services were set up and administered by 

different agencies within the central Vietnamese government: combat claims. administered by the Directorate of Psychological War; 

noncombat claims, by the Directorate of Finance and Budget; and 

defoliation claims. by the Ministry of Interior. 

By agreement, the government of Vietnam had responsibility 

for the processing and payment of all combat claims generated by 

the military units of the Republic of Vietnam, the United States. 

and the Free World forces. These were administered by the Psychological War Directorate through the Military Civic Action Program, 

commonly referred to as MILCAP. The program had iu own regulations. procedures. and forms. and its activities and budget were 

monitored and approved by U.S. authorities. The MACV Political 

,"Var Directorate was the U.S. counterpart office for the operations of 

the Military Civic Action Program, Once the determination was 

made that the claim was combat-generated, the claimant was required 

to complete the Vietnamese form, add proof of ownership and loss. 

and submit it through Vietnamese channels. 

In cases where U.S. forces had httn involved with the combat 

loss. U.S. claims officers were encouraged to assist the Vietnamese 

local authorities in processing the claims as rapidly as possible. If the 

claim was under 200,000 piasters, a committee at province level 

acted on the matter. This committee included the senior U.s. Army 

adviser and Vietnamese province chie£. Although the amount of 

compensation that could be recovered under the Military Civic 

Action Program was limited-death cases. for example, ranged from 

$50 to $.500-the program did represent a visible. viable recourse to 

the Vietnamese people at province le\·els. 

The government of Vietnam accepted full responsibility for the 

defoliation program and indemnification for damage to domestic 

crops. Although few defoliation indemnifications were made through 
86 LAW AT WAR 

1966, the existence of lhe program and the publicity given its availability added to the joint efforts of the governments of the United 

States and South Vietnam to rally rural support. 

The noncombat claims against the armed forces of Vietnam 

were handled by the Ministry of National Defense through the 

Directorate of Finance and Audit. Money for these claims was programed annually by the Vietnamese in the budget. which required 

the approval of the U.S. Military Assistance Command, Vietnam, 

and the U.S. Embassy. 

The sal utary effect of all these programs together cannot be 

measured. One inescapable conclusion, however, is that the cooperative administration and U.S. monitoring of the government of 

Vietnam claims programs set the central government along the Toad 

toward fostering a popular respect for the law. 
CHAPTER VI 

The Legal Status of Forces in Vietnam 

In accordance with lhe Mutual Defense Assistance Act of 1949, 

the United States first sent military adviSCTS to Vietnam to assist the 

French Union forces. The basic intemational agreement-Mutual 

Defense .\ssistance in lndochina-governing the leg-.lI status, rights, 

and obligations of U.S. personnel in Indochina was signed in Saigon 

on 23 December 1950 by the United States, France, Cambodia, Laos, 

and Vietnam. This agreement. known as the Penta lateral Agreement, was similar to other standard mutual defense assiuance 

agreements that the United States had concluded with its allies. 

The agreement was short and its tcrms were broad and general. 

(See Appendix 1.) 

Under Article III of lhe agreement each government undertook. 

to enter into necessary arrangements with the United States concerning all matters relative 10 the furnishing of materials, and to consult 

with the United States in establishing means for utilizing the assistance furnished. Under Article IV the governments agreed that all 

products, material, or equipment furnished by the United SLues in 

connection with the agreement would receive duty-free rreaunent, 

and would be exempt from taxation upon importation, exportation. 

or movement within Indochina. Clause 2 of Article IV stipulated 

that the states of Indochina were to receive within their territory 

those U.S. citizens who were necessary to carry out the agreement. 

and that the receiving states would accord to U.S. citizens thus 

engaged all facilities needed to carry OUI their responsibilities. 

U.S. citizens sent to Indochina to impleme11l the agreement were to 

operate as part of the diplomatic mission of the United States. 

Annex B to the basic agreement affirmed that U.S. citizens 

entering Indochina under the terms of the agreement were to operate 

as members oE the diplomatic mission. and stated that such citizens 

were to be accorded the same legal status vis-a.-vis Ihe host country 

as were members of the diplomatic mission of corresponding rank. 

Annex B then divided U.S. personnel imo three categories. and 

defined the legal status of each category. The first category consisted 

of the senior military members o[ the U.S. mission. and these were 

accorded full diplomatic status. Personnel in the second category. 
88 LAW AT WAR 

which was not defined. were to enjoy certain diplomatic privileges 

and such immunities as being outside lhe civil and criminal jurisdiction of the hon country. having the right of free egress, and being 

exempt from customs duties and rest.rictions. and various taxes. 

Personnel in the third category, a:so undefined. were to receive the 

same legal status as the clerical personnel of the diplomatic mission. 

In conclusion, Annex B staled that "it is understood among the five 

governments that the number of personnel in the three categories 

above will be kept as low as possible." 

In 1958 the United Stales informed the government of Vietnam 

that it would consider top U.S. military commanders in the firSl 

category, having full diplomatic status, officer~ and warrant officers 

in the second, or exempt category, and enlisted men in the third 

category, a status equivalent to that of clerical employees of the 

diplomatic mission. 

U.S. Troop Buildup 

When the Pentalateral Agreement was signed in 1950, the 

signatory parties obviously meant the agreement to apply to the 

activities of the small U.S. Military Advisory Assistance Group staffs 

operating at the time in Cambodia, u..os, and Vietnam. During the 

early 1950s, there were 200 to 300 of these military advisers in 

Vietnam, and by the end of 1960 there were Still only 685. As the 

tempo of Communist military activity increased, so did the size of 

the U.S. force in Vietnam. By the end of 1961 there were 3,000 

U.S. troops in Vietnam. The U.S. Military Assistance Command, 

Vietnam, was activated in February 1962, and by the end of 1962 

there were 11,000 U.S. troops in Vietnam. In 1965, when the first 

U.S. ground combat units were introduced, U.S. troop strength 

leaped from 23,000 early in the year to 184,000 by the end of the 

year. At the peak of the buildup, in 1969, there were 540,000 U.S. 

troops; 1,100 U.S. civilians hired directly by the Department of 

Defense; and 9,000 U.S. civilian employees of U.S. contraclOrs in the 

Republic of Vietnam. 

It is unlikely that the diplomats who signed the Pentalateral 

Agreement in 1950 ever imagined that its simple provisions would 

govern the legal status and activities of almost 600,000 Americans 

in Vietnam. Yet despite the size of the American force in Vietnam, 

the range of its activities, and the vast number of its facilities and 

installations, no more detailed agreement was ever negotiated, and 

the Pentalateral Agreement remained in effect as the governing 

document pertaining to the legal status of all U.S. material and 

personnel in Vietnam. 

Initially. the U.S. military force in Vietnam consisted of a relatively small number of advisers engaged in essentially noncombatant 
LEGAL STATUS OF FORCES IN VIETNAM 89 

acuvtUes. These advisers were not organized in standard military 

units but were considered the military arm of the U,S. diplomatic 

mission. It was to this situation that the Pentalatera l Agreement 

was meant to apply. As the war intensifi ed. the U.S. military force 

increased enormously. Had the larger number of U.S. troops remai ned in a noncombatant role. a more detailed treaty. in the n ature 

of a status of forces agreement such as those negotiated between 

the United States and the North Atlantic Treaty Organization allies, 

might have been appropriate. nUl since the regular Marine and Army 

units introduced from March 1965 on were soon engaged in major 

combat operations aga inst main force Viet Cong and North Vietnamese Anny units, a status of forces agreement, which is essentially 

a peacetime document, never became necessary. 

The United States has never relinquished jurisdiction over its 

armed forces during combat ; to do so in Vietnam would have been 

as unprecedented as it would have been impractical. During \'\forld 

War II, for example. the United States kept jurisdiction over U.S. 

troops in the U nited Kingdom. There were approximately one 

million U,S, servicemen in Great Britain prep.1.ratory to the 

Normandy invasion. The English legal system is quite similar to 

that of the United States; the British courts functioned effiCiently; 

there were innumerable contacts between the U.S. and British 

governments and between U.S. troops and British citizens; and 

U.S. trOOps were not engaged in combat operations in Britain. The 

United States nevertheless reta ined exclusive jurisdiction over its 

armed forces, as it has in every other case where U,S, troops have 

been sent in a combat status. 

When American combat units were gradually phased out of 

Vietnam, advisory duties once again became paramount. But Viet· 

nam was still a combat zone, and U.S. troops were directly engaged 

in the hostilities until the end of U.S. participation in the war. 

By the time of the major U.S. troop withdrawals in 1970·71 , solutions for most of the problems with which a status of forces type of 

agreemelll is designed to cope had already been worked out by the 

Republic of Vietnam and its allies. to their mutual satisfaction. 

In addition to the political reasons for keeping the Pentalatera l 

Agreement in effe<:t, there were also practical factors operating 

aga inst the negotiation of a more detailed treaty. The negotiation 

of a status of forces type of agreement requires a major effort on 

the part of the participating governments. Hugh investments of 

man-hours are usually involved; volumes have been filled with the 

minutes of working meetings alone. The more detailed the treaty, 

the more prolonged the negotiations; yet, regardless of how detailed 

and specific the agreement may be, problems of interpretation and 

administration are unavoidable. The bul k of U.S. and allied forces 
90 l.AW AT WAR 

were Sc!nt to Vietnam on short notice during a period when the 

Vietnamese government was undergoing a grave military crisis, 

accompanied by political wrbulence that rendered uncertain the 

performance of many governmental services. The Vietnamese government did not seek. to enter into a major, and probably protracted, 

series of diplomatic negotiations, and the U.S. diplomatic mission 

and other allied military and diplomatic missions determined that 

their own energies were bener ex.pended in the prosecution of 

the war. 

It was consiSlently the position of the U.s. command that U.S. 

interests would not be served by the negotiation of a status of forces 

type of treaty during hostilities. 'The Pemalaleral Agreement provided a llIininJ,tI but adequate framework for the job at hand, and 

the very paucity of its provisions allowed a lIexible 'lpproach to 

solving problems, an advantage of considerable value in coping with 

the myriad complications that arose. 

Given the size of the American force in Vietnam. it was inevitable that problems involving relationships between the U.S. commaud .md the Vietnamese government and citizenry would develop. 

The pracli<:al effect o[ working with the agreement as the basic 

controlling document was that difficulties had to be dealt with on 

a case-by-cast! basis a5 they arose. The emphasis, at least 011 the U.S. 

side. was on practical conciliation to keep things going Tather than 

on detailed, legalistic agreements to resolve every poim of fTiction 

between the U.S. cumIlland and Vietnamese government agencies. 

N; a result o[ th is pr-dgtll3tit.. .lpproach. many differences of opinion 

were not St:ttled in a clear-cut. binding fashion , but neither were 

they allowed to become stumbling blocks in the war dfort. 

A prompt. liberal. and efficient foreign claims program by 

the U.S. forces. as well as the other Free World forces, dealt with 

many of the (.<tsCs that might otherwise have led to demands for 

some form of statuS of forces agreement by the host government. 

The SllCCess of this program kept friction between the U.S. and other 

Free World forces and the Vietnamese at a minimum, 

Application of the Pentalateral Agreement 

to U.S. Personnel 

United Slates policy concerning the immunity from Vietnamese 

legal processes granted the U.S. military force under the terlllS of the 

PentalatC1<t1 Agreement w.u set forth in a MACV directive. Legal 

Services and Legal Obligations in Vietnam. dated l(j June 1965. 

and W<l) inteuded to mininti zc legal proulems in the command. 

This diretti\e informed the U.S. troops that Lhey were under the 

jurisdiction of the U.S. Uniform Code of Military Justice and that 
LEGAL STATUS OF FORCE~ IN VIFT'I,Ii/\f 91 

the Code of Conduct applied to all military personnel. It explained 

to the troops that although tht' Vietnamese police and courts did 

not exercise civil or criminal jurisdiction over U.S. milital")' per. 

sonnd and D('partmclll of Dcfcn~ civilians. Amerkam; were to 

comply with Vietnamese laws, including lrafflc laws and laws pertaining to curfew. off-limits areas. and currency. If Vietnamese 

authorities apprehended U.S. citizens {or suspected (lffcnses, the 

SIl$.PCCt~ wen' to comply and CIXlper.ttC. and were to notify U.S. 

military police or thell' own unit COlllmanrlcl's as soon as possible. 

A U.S. ~Clldicr who rcceivc'd a Vielllamese traffi. citalion, a summons 

to a Vietnamese court, or other Viemamese notic.e of legal process 

was to report the fact to his unit commander and seek advice from 

the staff judge advOC'.tte serving hi. .. command. Soldiers involved in 

traffic accidents were to furnish identifi cation to U.S. and Vietnamese 

authorities :lnd to injured p.,,\rties. ir requested. Unless their military 

duties required them to proceed elsewhere immedi:Hely. U.S. troops 

were to remain at the scene of an accirlent or. if requested, ;;.ccompany 

ViemamCS<' politf'mcn to'" police station. If rr.strained bv Vietname5C 

polke. U.S. troops were to inform their unit rommand, provost 

marshal 0]' staff j\]dge advocate as soon as possible. Under no circum· 

st.lnccs were U.S. troops to resist by force Vietnamese policemen 

acting in the performance of their duty. 

The direnive also cited. and inslrucred military personnel to 

study, othf'T MACV directives pertaining 10 motor vehicles, weapons, 

personal conduct. the purchasing and disposition or tax free items. 

and the importation and di~position of pe~nal property. While all 

MACV dircctives were updated pcriooir.ally, MACV policy in regard 

to Vietnamese legal authorities remained the same-U.S. troops 

were to comply wilh Victnamese laws. he f'Ol1r1eotls and co-operative 

toward Vietnamese (lfficial~ , report all incidents to U.S. authoritieli. 

and seek advicc' rrom the unit judge iI<iwx.ue. (Su Ap/It!ndix }.) 

Legal relations between U.S. Iroop5 and Vielllamese authorities 

did not prove to be a major irritant to U.S.-Vietnamcsc rel.Hions 

because U.s. troops were subject to military discipline. Many offenses 

against Vietnamese law. such as larceny and crimes against persons, 

were also offenses under the Unirorm Code of Military .Justice. 

Other acts det.rimental to VieLnamesc society, such as black market 

activities and currency manipulation. were proscribed hy various 

MACV directives and other milit."\ry general regulations. and thus 

were also punishable under the Uniform Code of Milit;try Jmtice. 

U.S. soldiers who committed illegal acts detrimental to Vietnamese 

society were tried and convicred by courts-martial. and this enrorce· 

ment of the law by the U.S. command had an understandably 

beneficial effect on U.S.-Vietnamese relations. 

The legal status of U.S. civ'lians in Vietnam was not as dear. 
92 LAW AT WAR 

Members of the diplomatic mission and direct hire employees of the 

Department of De£ense and other U.S. agencies were immune from 

Vietnamese civil and criminal legal process. Other U.S, civilians. 

such as contractor employees, merchant seamen, newsmen, independent businessmen, and tourists did not fall under the terms 

of the Pentalateral Agreement and were subject to Vietnamese jurisdiction, The Vietnamese. however, were not eager to try U.s. 

civilians in cases where no serious bodily harm was inflicted on 

Vietnamese citizens, or where legal proof might be difficult to obtain 

as in black market activities or currency manipulation cases, or 

where the major harm caused by the offense was to the United States, 

as in cases of theft of U.S. property. Efforts to subject U.S. civilians 

to military discipline were generally not effective. As a result, the 

illegal activities of U.S. civilians became a cause for major concern 

to the U.S. command. 

Application of the Penlaiaterai Agreement 

to U.s. At ateriel 

According to the U.S. interpretation of the Pentalateral Agreement, all products, supplies, and equipment brought into Vietnam 

under the Military Assistance Program were to receive tariff and tax 

free treatment. This included all materiel brought in by the U.S. 

armed forces, their agencies and instrumentalities, including items 

brought in by contractors in furtherance of U.S. government contracts, and items brought in by the military exchange synem and 

its concessionaires. While there were problems concerning Vietnamese attempts to exercise authority over mau riel that was clearly 

military in nature, most friction between the U.S. command and 

Vietnamese administrative agencies arose over materiel imported by 

the exchanges and exchange concessionaires, the commissary. officer 

and enlined men's club, messes, military banking facilities, and 

contractors. 

Customs 

When the massive U.S. buildup began 10 1965. it soon became 

apparent that the Vietnamese port facilities were not capable of 

dealing in a satisfactory manner with the quantity of U.S. materiel 

being poured into the country. Hampered by inadequate docking 

and warehouse facilities, the unloading, transporting, and storage 

of freight was in itself a task of staggering proportions. The situation 

was further aggravated by the attitude of some customs officials who 

functioned in a business as usual manner, even to the extent of 

attempting to require the registration of all U.S. military vehicles 

in accordance with Vietnamese law. The upshot was that the United 
LEGAL STATUS OF FORCES IN VIETNAM 93 

States operated its own pon facilities, using land and other real and 

personal properties provided by the government of Vietnam through 

an interministerial real estate commission (pan of the Vietnamese 

Joint General Staff), and utilizing U.S. troops and civilians to carry 

out operation and control procedures. Vietnamese customs officials 

made sporadic attempts to re·establish authority over pon operations, 

but jurisdiction remained in the U.S. command and no import 

duties were paid. 

As might be expected, a point of considerable sensitivity was 

the importation of nonmilitary goods by the military eXChange 

system and the exchange concessionaires. The military exchange 

system began operations in Vietnam under the control of the Navy 

in 1956. The small number of military men and their dependents 

were served by eight exchanges, most of them in the Saigon area. 

With the introduction of ground combat units in 1965, exchange 

operations were assumed by the Army and Air Force exchange 

system. By the end of 1966 there were 146 U.S. retail exchange 

outlets in Vietnam, with a net income of $160 million. By the end 

of 1967 there were 304 retail outlets with gross sales of $333 million. 

]n addition to such basic items as soap. toothpaste. shoe polish, 

stationery, and cigarettes, the exchanges also sold liquor. radios, 

television sets, expensive stereo equipment, diamonds, and fUTS. 

Exchange concessionaires who sold diamonds, furs, silks, watches, 

leather goods, and other luxury items had vinually unlimited duty 

rree impon privileges. 

'In 1967 the Vietnamese Minister of Economy and Finance complained to the U.S. command of widespread misuse of exchange 

goods. It was the Vietnamese position that goods imJX>rted without tax 

under the tenns of the Penta lateral Agreement were being sold in 

illegitimate private business deals, and that many eXChange items 

were diverted into the black market. Such abuses violated Vietnamese customs and commerce laws, fueled inflation in the 

Vietnamese economy, and injured Vietnamese businessmen, 

]n order to verify the validity of Vietnamese charges and ascertain 

appropriate corrective action, the Military Assistance Command 

established the Irregular Practices Committee to investigate abuses 

in the exchange system, and allied problems of black market activities 

and currency offenses. The committee was composed of representatives 

of the U.S. Overseas Mission and officers from MACV staff sections, 

including the Staff Judge Advocate. The committee verified that 

there were indeed serious problems in the handling of such a 

volume of imJX>rted goods in the exchange system. The theft loss 

for the Mekong Delta region, which had the fewest U.S. troops in 

the country, was $240,000 for the first eight months of 1967. The 

Military Assistance Command, Vietnam, also investigated an 
LAW A'I WAR 

appareut 1000s of $8 milliun whi<.:h OCl,;urred belween December 1965 

and January 1967. 

After studying the situation, the commiuee's chief recommendation was that existing laws and regulations be vigorously enforced, 

and that new mntrob be imposed on the importation, distribution, 

and sale of exdlange merchandise. The committee also noted that 

there was a lack of (.()o()peralion by Vietnamese police in returning 

Slolen merrhJ.udise, and there was evidence to indicate that some 

Vietnamese police officials were involved in the black market. The 

committee recummended that the Vietnamese govemment crack 

down on black market wholesalers and eliminate corruption in the 

police department. 

Basing his decision on the committee's recommendations, the 

U.S. Ambassador ordered an across·the-board tightening up of 

eXLhange policies and procedures. The Irregular Practices Com. 

mittee was made permanent and ordered to report to the U.S. 

Deputy Chid of Mission at frequent, regular intervals. Effons to 

Cllrb abuses in the exchange system and to curtail black market 

activity (Ontinueci through 1969 and 1970, by which time the MACV 

Staff Judge Advocate was meeting weekly with the Vietn:tmt.'Se 

Minister of Finance, the Director of Customs, the Minister of 

Economy, and representatives of the U.S. Agency for International 

Development and the U.S. Embassy. In order to give emphasis 

and l.:ontinuity to this work a new MACV staff position, Assistant 

Chief of Staff for Economic Affairs, was created; it was to be filled 

by a general officer. Additional controls placed on exchange procedures were somewhat successful in curbing abuses, but U.S. policy 

regarding the dUlY free importation of luxUl'y exchange items remained unchanged. 

Taxl!s 

It was consistently the JXlSition of the United States that goods 

brought into Vietnam that qualified under the terms of the Penta· 

lateral Agreement were to be duty fTee at port of entry and were 

to be exempt from payment of all taxes within VieUlam. U.s. citizens 

and those U.S. activities conducted in furtherance of lhe Agreement, 

were al5<.1 exempt from payment of all taxes. The U.S. position was 

simply stated, and allowed no exceptions. Unfortunately, the tax 

structure of Vietnam was not centralized nor organized in a fashion 

easy to comprehend. In Vietnam the power to tax was ill-defined 

and often regarded as a prerogative of office holders. As a result there 

were taxes imposed by local authorities, mUllicipal taxes, taxes levied 

by autonomous governmental emities such as the port of Da Nang, 

and national taxes. There were excise taxes, surtaxes, use taxes, 
LEGAL STATUS OF FORCES IN VIETNAM 95 

transIX>nation taxes, and taxes paid for practicing a profession or 

trade. Even at the national level there was confusion, since cabinet 

ministers exercised a considerable degree of independence and there 

was little co-ordination between ministries. 

The continual effort to uphold the rights of the United States 

and to secure compliance with the terms of the Penta lateral Agreement from the many Vietnamese taxing authorities was a source of 

frustration to U.S. military attorneys. By 1968 the MACV Staff Judge 

Advocate's Office had discovered fifty taxes known to be imposed by 

the government of Vietnam. All were applicable to the Viemamese, 

and there had been attempts to levy some on the United States, its 

agencies, or instrumentalities. 

Vietnamese taxes fell into five categories. First, there were import 

and eXIX>Tl taxes imposed by custom.s officials. Under the terms of 

the Pentalateral Agreement, the United States was clearly exempt 

from such taxes. Second, there were pon taxes imposed on ships 

using the pan facilities of Dil Nang and Cam Ranh Bay. The port 

of Da Nang imposed loading, unlo.lding, and circulation taxes, a 

surtax, commercial office taxes, port labor taxes, mooring anchorage, 

and pier taxes, merchandise taxes, and warehouse fees. At Cam Ranh 

Bay ships were subject to a customs tax. The third type of tax was a 

consumption lax levit'd on consumable products, primarily meat and 

ice. The Viel1lanlcsc government imposed the tax 011 the VieUlamese 

vendor, who in turn raised the price of goods he sold to r,he United 

States. The Milirary Assistance Commanrl, Vietnam, viewed this as 

a direct tax" on the United Sr:Hes and therefore a violation o{ the 

Penta lateral Agreement. Thf're were other excise taxes, but they 

were not levied on goods imported from the United States. The 

fourth type of tax was an annual licensing fee for exercising 3 trade 

or carrying on an industry, or business in Vietnam. The fee varied 

depending on the size and imIX>rtance of the firm. The U.S. position 

was that such fees could not be imposed on businesses that were 

contractors or agents for the United States because the payment of 

such fees would increase the price of the services rendered to the 

United States and thus be a VlX on the United States. The final category was the laX on imported products, designed to equalize the 

market price of all similar prorlur.'~ sold in Vietnam. The United 

States was not concpmed with the imposition o[ such taxe's on goods 

intended for sale to Vietnamese nationah ror tilt" goods would enter 

the Vietnamese market in competition with Vietnamese goods. The 

United States did ohjlXt to the imposition of such taxes nn discarded 

or surplus U.S. military property whirh wa\ "sold" in Vietnam in 

the sense that title passed there, hut which was intended for export 

out o[ Vietnam, and thus would not be competing on the Vietnamese 

market. Tax on such sales would lower the price the United States 
96 LAW AT WAR 

could get for iu property and would therefore be a tax on the United 

StatOi-in effect, an export tax. 

The problem of dealing with the many and varied Vietnamese 

tax laws was greatly alleviated in 1968 when the MACV Staff Judge 

Advocate's office published an English language. cross-indexed. 

annotated compendium of Vietnam~ tax laws. This work was fully 

co-ordinated with the V.S. Embassy and the U.S. Agency for Inter· 

national Development, and the official U.S. position as to the applicability of each tax was published in the compendium. Publication 

of the compendium did not eliminate tax problems, but it did make 

them considerable easier to deal with. 

ContTlJctor Activities 

Pursuant to Department of Defense policy, many support funetiam which might have been perfonned by the military in Vietnam 

were delegated to U.S. civilians and Vietnamese and other nationals 

employed by U.S. contractors. One of the results of this policy was 

to make the contractor a major economic force in Vietnam, both in 

terms of the dollar value of work performed and the number of 

people employed. Some of the larger contractors took it upon them· 

selve$ to approach the Vietnamese government directly in order to 

secure tax concessions and other business advantages. A number of 

the concessions gained by the contractors and some of the obligations 

they agreed to incur were in conflict with the terms of the Penta· 

lateral Agreement as interpreted by the U.S. government. This inde· 

pendent action on the part of the contractors resulted in considerable 

confwion. 

In 1967 the Vietnamese government promulgated a law to 

establish "Fiscal Measures in Favor of U.S. Contractor." The title 

of this document is misleading. The measures prescribed were not 

favorable to the United States. and the document attempted to 

define the rights and obligations of departments of the U.S. Agency 

[or International Development and the U.S. military. in addition 

to those of private contractors. Some of the measures proposed were 

severe, with potentially far·reaching consequences. For example. 

Vietnamese officials took the position that since U.S. servicemen 

conld obtain their basic living needs from the exchanges. they had 

no need for personal importations, and none would be allowed 

unless duty was paid on the goods brought into the country. Similarly. 

the Viemamese government attempted to bar entry of all club and 

mess supplies. reasoning that the dubs and messes could also fill 

their needs through the exchange system. When the United States 

pointed out that these measures violated the (enns of the Penta lateral 

Agreement, some Vietnamese officials responded that the fiscal 
LEGAL STATUS OF FORCES IN VIETNAM 97 

measures Jaw superseded the agreement. The U.S. representatives 

declined to accept this unilateral abrogation of the treaty by the 

Vietnamese government, and the goods continued to be imported 

through U.S. facilities as before. The fiscal measures law remained 

in effect but was not enforced. The United States agreed to furnish 

Vietnamese authorities with documents describing incoming cargo, 

for information purposes only. The legal situation remained clouded, 

but the supply system continued to function. 

The utilization of the sparse provisions of the Penta lateral Agreement as a means for managing U.S. forces in Vietnam entailed a 

demanding and sometimes exasperating effort on the part of the 

lawyers involved. This is not to imply, however, that the interests 

of the United States would have been better served by the conclusion 

of a more detailed agreement. ]n Viemam the United States was 

engaged in large-scale combat operations and a massive political, 

economic, and social effort to support a government and save a 

nation. Conditions in Vietnam were complex, confusing, and constantly changing. Detailed, long-range plans of any kind were subject 

to almost instant obsolescence. The Pentalateral Agreement left 

many legal questions to be settled on a case-by-case basis, but, on 

balance, the terms of the agreement were favorable to prosecuting 

the war and accomplishing the mission of the Free World forces 

in Vietnam. 
CHAPTER VII 

Discipline and Criminal Law 

Criminal offenses in the Army were nOl a serious problem in 

the early years of U.S. involvement in Vietnam. At the beginning 

of 1965 the monthly Army court-martial ralC in Vietnam was 1.17 

per 1.000; at the end of 1965 it was 2.03 per 1,000. The Army-wide 

courl-manial rale for 1965 was 3.55 per 1,000. 

Prior to the massive LfOOP buildup that began in 1965, the U,S. 

military force was relatively small and consisted largely of individually screened volunteers and selected unils with a high percent.1ge 

of c.:areer officers and noncommissioned officers. Most American 

civilians in the country at that time were dedicated career government 

employees. A few courts-martial were held in Vietnam; all serious 

Army cases were sent to Okinawa for trial, and the Navy and Air 

Force senl their serious cases to the Philippines. Serious crime in the 

small U.S. ci vilian community wa. .. virtually nonexistent. There was 

no drug problem, and black market dealings and culTency mani pulal ion were insignificant compareri to the levels reached in later years. 

After 19fi5, a<; trOOp levels rose rapidly and major U.S. contractors 

began operations on II countrywide sca le, the picture hegan to cha ngC'. 

Not only did the tlumber of foreigners in Vietnam multiply many 

times. hut the nature of the foreign population changed. As the war 

progresst'd and the American Army expanded, the Army was forced 

to rely heavily on relatively inexperienced officers and noncommissioned officers, young draftees, and volunteers. While the overwhelming majority of these men performed exceptionall y well in the seHice 

of their country. there were those whose immaturity and lack of 

motivation made them susceptible to misconduct. On the civilian 

side. many of the comractor employees who flooded the coumry were 

drawn hy the prospect of easy money and an exciting, unrcsttictcd 

life. The presence of Free WorM Military Assistance Forces from 

Korea, Australia, New 7,ealand, Thailand. and the Philippines hUlher 

com~lic:atcd lhe legal scene, 

It did lIot lake long £01 the less respectable elcments of the wardisrnplcd, conglomerate St1Ciety to devise schemes to exploit the 

situation, often in conjunCtion with U.S. or allied troops or civilians. 

Most illegal activity ror profit fed on (hc m~ssivc influx of U.S. goods 
DISCIPLINE AND CRIMINAL LAW 99 

and money, which could nOt be absorbed into the local economy. As 

commander of all Free World forces in Vietnam, the Commander, 

U.s. Military Assistance Command, Vietnam, was concerned with the 

state of discipline within the entire allied community. The Republic 

of Vietnam military establishment and the various Free World military forces each had its own sy.stem of military justice and could 

maintain discipline and punish offenders within its ranks. 

The concern of the Commander, Military Assistance Command, 

at the allied level, therC£ore, centered primarily on the prevention of 

flagrant, widespread corruption, or violations of the Geneva Conven. 

ventions and mutual assistance agreements which could hinder the 

war effort by causing dissension among the allies or by drawing the 

censure of world opinion. Allied commanders recognized the need 

for maintaining high standards of behavior. and co-ordin3ted with 

the Commander, U.S. Military Assistance Command, in establishing 

policies and settling problems. The commander himself was not only 

concerned with discipline among U.S. troops. but he was also 

responsible for adminiSlering military justice within the entire allied 

command. 

Military Jwtict: in Viehla1/l 

The evolution of a military justice organization for Vietnam was 

determined by the fact that MACV was a unified suocommand under 

the Pacific Command. This me;tnt that the Commander, U.S. Military Assistance Command, Vietnam, commanded all Army, Air 

Force, Navy, and Marine Corpll unilll in Vietnam, and command 

headquarters was comprised of members of each of the services. 

Within each service, the rules prescribillg the authority to convene 

general courts·martial were contained in service directives promul. 

gated at the department level of the service. Rules for convening 

special and summary courts·martial were issued by MACV. In Viet· 

nam the comm:mdels of the Army, Navy, Air Force, and Marine 

elements exercised jurisdiction over their respective services. Within 

MACV headquarters, an officer from each service was designated 

commanding officer for all headquarters personnel of his service. 

Few serious crimes were committed by tToops in Vi etnam prior 

to 1965, and the Military Assistance Command was not staffed to 

administer a heavy volume of military justice C'ctSCS. There were few 

U.S. lawyers in Vietnam. military judges were 110wn in from Okinawa 

as needed, and there was no military confinement facility for U.S. 

troops in Vielnam. Before March 1965 only summary and special 

courts·manial were tried in Vil'lllam, and these were restricted to 

cases in which only U.S. milit.uy personnel were p.uties and no 

Vietnamese witnesses were required. On 10 March 1965 the Secretary 

of the Anny aUlhorized the Commanding Officer, U.S. Army Support 
100 LAW AT WAR 

Command. Vietnam, to convene general COUTu-mania I. The major 

U.S. Army units which began arriving in mid·1965 brought with 

them their own courts-martial juri.sdiction and their own judge 

advocate officers to administer the military justice and other legal 

programs of the command. 

Headquarters. U.S. Army Vietnam, was activated at Long Binh 

in 1966. and took OVeT [rom the Military Assistance Command direcl 

r~pon5ibility for co-ordinating and administering the military justice program in Vietnam for the Army. General Westmoreland, Commander, Military Assistance Command, was also Commanding 

General, U.S. Army, Vietnam. The daj'·to-day operations of U.S. 

Army. Vietnam, were directed by Brigadier General John Norton, 

Deputy Commanding General ,who wa.s appointed by General Westmoreland. U.S. Army, Vietnam, W3.5 responsible for providing can· 

trol, service, and support for all U.S. Anny forces that comprised the 

Army component of the Military Assistance Command. As new Army 

units arrived in Viemam. they were assigned to U.S. Army, Vietnam. 

Army judge advocate replacements arriving in Vietnam were assigned 

directly to MACV or to U.S. Army, Vietnam, with the oVeT\\lhelming 

majority going to U.S. Army, Vietnam, where they were reassigned 

to specific units. At the ~k of the buildup in 1969 there were 135 

Army judge advocate officers in Vietnam. Of these, 128 were providing legal suppon for units of U.S. Army, Vietnam, and only 7 were 

assigned to U.S. Military Assistance Command, Vietnam. The Air 

Force, Navy, and Marine Corps continued to administer their resP"L 

tive military justice programs with their own attorneys. 

With lhe rapid troop buildup, the military attomeys trying 

courts·martial in Viemam labored under a Slaggering case load. 

(See Appe"dix K.) Time imposed unrelenting pressure on all who 

were involved with a case. Given the twelve·month tour of duty in 

Vietnam, it was an unusual case that did not involve at lea5t a few 

key persons who were due to rotate back to the United States in a 

shan time. Because the Army was reluctant to hold people in Vietnam 

beyond their rotation dates, or to have them returned from the 

States for any but the most serious cases, justice in Vietnam had to be 

swift if there was to ~ justice at all. Under the ~st of conditions 

the preparation of a case for trial requires a formidable amount of 

work and a reasonable amount of time. In the Vietnam war zone, 

there were aggravations enough to frustrate the most placid attorney, 

and the simplest cases sometimes required more work and time than 

had been anticipated. Judge advocates were not immune to the 

turmoil caused by the twelve-month rotation cycle, and this, coupled 

with transfers within Vietnam from one unit to another, meant that 

the offices of the judge advocates often suffered from a high turnover 

rate of legal and clerical personnel. 
DISCIPLINE AND CRIMINAL LAW JOJ 

Clerical personnel generally had little or no preparatory legal 

training; essential office equipment was apt to be in short supply 

from time to time; and it was not unusual for an attorney or clerk 

to spend hours on the telephone trying to get through to a base in 

another part of Vietnam in order to obtain needed information. The 

search for the location of participants in trials was often frustrating. 

and the c<>-ordination necessary to bring all e1emenu together at the 

right time and place was difficult and sometimes impossible to 

achieve. 

Of course, not all crimes were committed at the major base camps. 

If an offense occurred in the field or at an artillery fire support base 

in a remote jungle clearing. judge advocates went to the scene to 

interview witnesses or examine evidence. Security conditions seldom 

permitted surface travel. and air transportation was at a premium, 

with the highest priorities naturally given to tactical, logistical, and 

command requirements. 

Interviewing witnesses posed some special problems. If the wit· 

nesses were all from one unit and that unit was in the field, commanders were understandably reluctant to relieve the men from an 

operation and return them to base camp for an interview. The 

alternative solution of bringing the trial and defense counsel. and 

sometimes the accused, an investigating officer, and a stenographer 

out to the field to interview the witnesses often was not feasible. If 

the witnesses were from several different units. as sometimes hap-

~ned if the offense: occurred at a major base or rest and recreation 

center, C<>-ordination with each of the units was necessary to obtain 

interviews. Securing physical evidence which required laboratory 

analysis was also difficult. If a case required ·analysis of ballistics or 

drug samples, material usually had to be sent to Saigon or Japan, and 

sometimes weeks passed before the test results were returned. 

Transmitting the required paperwork up and down the chain of 

command could be a frustrating and lengthy process where units 

were spread all over an entire corps area and commanders changed 

locations frequently. Transcribing the volumes of testimony from 

investigations and trials was a tedious, time-consuming job for the 

hastily trained court-reporters who prepared the records of trial. 

Trials inVOlving Vietnamese witnesses added another dimension. 

In many cases it was difficult to locate civilian witnesses, even with 

the assistance or the National Police. \Vhen Vietnamese witnesses 

were available. there was frequently a communication problem 

because of the difference in language and culture. Sometimes an 

offense did not come to light until long after the incident had 

occurred. Investigation then became extremely difficult, since there 

was a high probability that essential evidence or witnesses were no 
102 LAW AT WAR 

long~r available, or that some of the principal suspects had been discharged and were no longer subject to military jurisdiction. 

Most cases involving Vietnamese victims wtte investigated and 

tried as common law crimes because larceny. assault, rape, and 

murder are offenses against the U.S. Uniform Code of Military 

Justice regardless of the nationality or the victim. 

My Lai was popularly regarded as a "war crime" in the sense 

that unarmed Viemamese civilians were murdered by U.S. troops 

during a combat operation. Technically. of course, the killing of 

these South Vietnamese people was not a war crime. The victims 

were citizens of an allied nation, not enemies protected under the 

Geneva Conventions, but citizens prot«ted by the law of Vietnam, 

and the perpetrators weTe U.S. soldiers, governed by the U.s. Uni. 

form Code of Military Justice. Within the scope of the Uniform 

Code of Military Justice, the My Lai murders were not legally dis. 

tinguishabJe from other homicides-the My Lai cases required the 

same investigation, the same administrative processing, the same type 

of evidence, and the same standards of proof as any other homicide 

case tried under the cOOt:. The My Lai case first came to light in the 

United States, and the initial investigation was condut1ed by agents 

of the Inspector General j\nd the Army Criminal Investigation Divi· 

sion. When investigators, counsel, and accused began arriving in 

Vietnam to obtain statements of witnesses and other evidence. the 

MACV Staff Judge Advocate was asked to provide co-ordination 

and support for those having legitimate interest in the cue. In addition to being the initial point of contact for visiting groups concerned 

with My Lai, the MACV Staff Judge Advocate also maintainer! 

liaison with the Vietname5C colonel, who was himself an attorney, 

from the Joint General Staff, whose authorization was required 

before any Americans could interview any Vietnamese concerning 

the case. 

Headquarters. ·Military Assistance Command, Vietnam, was not 

a courts-martial convening authority and its judge advocates were 

seldom involved in the trial of courts·martial. The MACV Staff 

Judge Advocate assisted the Commander, Military Assistance Command, in establishing legal policies applicable to the entire U.S. 

command, in devising jurisdiction organization for the administration of military justice within the command, and in monitoring the 

justice program to promote equal application of law throughout the 

command. The MACV Staff Judge Advocate also co-ordinated with 

appropriate Viemamese officials on criminal problems of interest to 

both governments, such as black market activities, currency manipulation. and drug violations. 
I)ISCIPLINE AND CRIMINAL LAW 103 

Black Market Activities 

Vietnamese port and storage facilities were not adequate to 

process the huge volume of U.s. goods that came ashore to suppon 

the sudden troop buildup which began in March 1965. As a result, 

there was considerable confusion in off-loading, transporting, storing, 

and distributing cargo. Under the circumstances it is hardly surpris· 

ing that some goods never arrived at their destination. While there 

were 'losses of machinery. vehicles. construction material, and virtually 

every other type of commodity, military eXChange merchandise was 

in especially great demand on the black market bct:ause exchange 

goods were generally small in bulk, high in value, easily disposed 

of. and not available on the civilian market. 

During the early months of the troop buildup there were no 

proper storage facilities for exchange goods, which had to be kept in 

thineen different locations in the Saigon area alone. Goods had to be 

moved from the port in open, of(('n unguarded, vehic.1es to storage 

compound, where there was little security. As a result, Ic»s and 

pilferage were constant. Exchange losses for 1965 were $2.25 million 

from total sales of $50 million for a loss rate of 4.5 percent. 

Black market operations were harmful in several ways, the most 

ohvious being the dollar 10M to the exchanges from slolen merchan· 

dise, and the added expense of increased security measures. The most 

seriolls effects of this illegal activity, however, were horne by the 

Vietnamese. The ea~y money (0 be made in the black market went 

into the hands of a very small percentage of the population, and even 

fewer Vietnam~se achieved suhstantial wealth through the black market. But the profits generated by the sale of black market goods aggravated the already inflated economy. driving up prices for all Vietnamese. Moreover, the obvious disparity in the economic condition 

of those Vietnamese dealing in the black market and other shady 

enterprises and those who struggled to eke out an honest Jiving in 

the wartime economy fostered a spirit of cynicism detrimental to the 

government's cause. 

General Westmoreland realized the seriousness of the situation 

and sought to bring it under control. In 1966 items in great demand, 

such as cigarettes. cameras, electric fans, record players. tuneramplifiers, movie and slide projectors, radios, tape recorders, type· 

writers, television sets, watches, and beer were rationed. Premier 

Ngyen Cao Ky warned the Saigon street vendors that illegal sales 

would no longer be tolerated, and when his warnings were ignored. 

the Vietnamese police moved in on 17 November 1966, smashing 

street stalls and confiscating merchandise. Some of the stalls were 

back in operation by the end of the year, but few of the luxury items 

which previously had been prominently displayed were openly 

vended. 
104 LAW AT WAR 

]n 1967 the Irregular Practices Committee, consisting of three 

U.S. Embassy representatives and the MACV Staff Judge Advocate. 

was fonned to find ways to curb black market activity. In October 

of that year, following the initial report of the committee. the ambassador took. action to implement the recommendations of the com· 

mittee. An automated system for recording dollar conversions and 

purchases of dollars was instituted. A method of identifying civilians 

who abused military privileges and of revoking their privilege cards 

was devised. There was better inspection of exchange concessionaire 

goods and military direclivr.s against illegal activities were revised and 

made morc stringent. 

Curre1U:y Violations 

Illegal currency transactions were often tied to black. market 

commodity sales, and produced many of the same harmful effects. 

The war had brought rampant inflation to VieUlam, with the result 

that the VieUlamese national currency, the piaster, had constantly 

shrunk in value in terms of the U.S. dollar. Even though the piaster 

was devalued ~eral times during the war, the going rate for U.S. 

currency in terms of piasters in the Viemamese market place was 

considerably higher than was the official rate of exchange agreed 

upon by the twO governments. Thus, someone with access to both 

U.S. and VieUlamese currency who had currency eXChange privileges 

could take X number of piasters and purchase $1.00 U.S. currency 

(X being the official rate of exchange at a U.S. installation). He 

could then take the U.S. dollar, go into the Vietnamese market, 

and purchase X + Y piasters for his dollar-Y being the difference 

between the official rate and the black. market exchange rate. The Y 

number of piasters was the profit on each transaction. Because this 

kind of manipulation allowed an individual to recirculate his money 

constantly, a relatively small initial capital investment could quickly 

be turned into a sizable fortune. 

Until 1 September 1965, U.S. dollars were used as an authorized 

medium of exchange in Vietnam. After that date, U.S. troops were 

paid only in Military Payment Certificates, and generally all U.S. 

civilian firms dealt only in certificates or piasters. The certificates 

were scrip money, printed by the United States and freely negotiable 

as money at all U.S. facilities. The only use for which certificates 

were not negotiable was conversion into U.S. green dollars, which 

were withdrawn from the economy. Soldiers and U.S. civilian 

employees who received pay in VieUlam were paid in military cer· 

tificates. If they wished to send money home, they could take out an 

allotment payable to an individual or a bank account, or buy money 

orders, or open a checking account at a military banking facility 

in VieUlam. Checks or money orders cashed within Vietnam were 
DISCIPLINE AND CRIMINAL LAW 105 

payable only in certificates. U.S. personnel who needed piasters for 

authorized purchases of Vietnamese goocl5 or 5eTvices could exchange 

certificates for piasters at official exchange facilities. 

The purpose of withdrawing all U.5. dollars from circulation in 

Vietnam was to keep separate the U.S. and Vietnamese monetary 

sySlenu, thus deterring black market operations and currency manipu. 

lation, and removing some of the inflationary pressure on the Viet· 

namese economy. The issue of Military Pay Certificates in the 

American community made illegal currency transactions more diffi· 

cult but did not eradicate them, since cenificates soon began to pass 

for dollars in lhe black market as well as in U.S. facilities. This 

was possible because, while certificates could not be negotiated for 

dollars in Vietnam, they could be used to purchase money orders 

or to write checks that could be sent outside of Vietnam and then 

cashed in dollars or other currency. In order to counter such activi· 

ties, the U.S. command in 1966 put controls on the use of U.S. 

postal money orders. No individual was allowed to purchase a money 

order for any amount in excess of the pay drawn by him that month 

(pay vouchers had to be shown); the names and addresses of pur· 

chasers and payees were recorded, and purchases which were can· 

sidered to be excessive were reported to the U.S. Internal Revenue 

Service for investigation. 

The court·manial statistics reRcet the growth of black market 

activity in Vietnam. In 1967 there were 64 courts-martial for currency 

and commodity violations on the black market. while in 1968 there 

were 232 commodity violaters (including 12 civilians) and 239 

currency violaters (of whom 105 were civilians). Because of the 

growing number of currency violations, a change of Military Payment 

Certificates, called a conversion, was called for. The first series of 

certificates. issued in 1965. was still in use in 1968. by which time 

it was re£ognized that a substantial amount in certificates had fallen 

into the hands of unauthorized persons, sllch as black market money 

changers. 

On conversion day, ""hich was predetermined and held a close 

secret (28 October 1968). all individuals authorized to possess cer· 

tificates were required to turn over all certificates in their possession 

to specially appointed finance agent:s stationed at each military instal· 

lation. No one was allowed to leave the installation until he had 

turned in his certificates. and certificates were accepted only from 

individuals who held the required identification authorizing p0sses.-

sion of certificates. A record was kept of the amount turned in by each 

individual. and an equal amount of money printed in the new cer· 

tificate .series was returned to each individual. Once the conversion 

was complete, no certificates fTom the old series were accepted for 

conversion, nor were old certificates any longer negotiable as cash. 
106 LAW ATWA'R 

Thus, the old series of Military Payment Certificates became worthless, and anyone holding such notes suffered loss directly proportional 

to the value of the nOles he held. On this first conversion date. 

$276.9S1,802.50 in certificates were converted. The amount of 

$6.228,597.50 in old certificates was not accollnted for, and presumed 

to be in the hands o[ unaUlhorized persons. 

As troop strength peaked in 1969, further steps were taken to combat black market commodity and currency violations. A second CUTrency conversion was accomplished on II August 1969. On 2 November 1969 the Military Assistance Command promulgated new 

regulations specifying activities prOhibited for U.S. military personnel; U.S. nationals employed by. 5erving with, or accompanying the 

armed forces; other nationals employed by the United States; contractors invited by the United States and doing business in Vietnam; 

all nonappropriated fund activities and their concessionaires; and all 

persons authorized to use exchanges, clubs, post offices, and other 

U.S. military facilities. The regulations specifically prOhibited more 

than two dozen activities. mOSt of them involving the unauthorized 

possession, acquisition, or transfer of exchange merchandise. Military 

Payment Certificates, dollars, identification cards. or ration cards. 

The Drug ProMem 

The U.S. command found the problem of drug abuse particularly 

hard to deal with in Vietnam. In September 1966 the U.S. Military 

Assistance Command made a survey of the availability of drugs in 

the greater Saigon area-Saigon, Cholon, and Tan Son Nhut. The 

survey showed that there were twemy-nine fixed outlets in this area, 

and lhat drugs were readily available ITom cycle and pedicab drivers, 

bar girls, shopkeepers, hotel clerks, and others who dealt with the 

public. The Vietnamese drug laws were ill-dcfined. No central Vietnamese narcolil.: enforcement agency existed, and enforcement or 

existing law5 was lax. There was no government control 0' er marihuana and only a lillie over opium. The U.s. Embassy was informed 

of the results or the survey. and on 12 November 1966 General Westmoreland asked the embassy for action on the matter; none had been 

taken by the year's end. Of the 100 drug ca~ investigated in the 

U.S. command in Vietnam [Tom J July 1965 to 30 June 1966, 96 

involved marilluana. 

By 1967 marihuana cigarettcs werc selling for 20; each in Saigon 

and $1.00 each in Da Nang. Opium was $1.00 per injection, and 

morphine $5.00 per vial. Heroin had not appeared on the market. 

There were 1,~91 U.S. military investigations, involving 1,688 persons, for use of marihuana in 1967. This monthly rate of .25 per 

1,000 troops was still lower than the Army-wide average of .30 per 

1,000 troops. There were 29 hard narcotics investigations, involving 
J)lSCIPLINE AND CRIMINAL LAW 107 

25 persons, for illegal possession, use. or sale of opium and morphine. 

There were 427 courts· martial for marihuana and hard narcotics 

abuse in Vietnam in 1967. 

In October 1968 the Vietnamese government publicly condemned 

the usc of or trafficking in marihuana and opium, and issued instructions to province chiefs to forbid the growing of marihuana. The 

recently established Vietnamese Narcotics Bureau was expanded, and 

the U.s. government sent an agent from the Bureau of Narcotics and 

Dangerous Drugs to Saigon to provide professional assistance to the 

Vietnamese. A program of using aircrart to discover marihuana crops 

and sending in Vietnamese troops to destroy lhe crops was instituted. 

In June 1968 the marihuana use rate among U.S. troops. based on 

reported incidentS. was 1.3 per 1,000 (194 cases): by December it 

had climbed to 4.5 per 1.000 (523 cases). The opium rate rose from 

.003 per 1,000 in June to .068 by December. There was a continued 

rise in the drug use rate in 1969, with 8,440 apprehensions. During 

1970 there were 11,058 arrests of which 1,146 involved hard narcotics. 

In August 1970 the Drug Abuse Task Force was formed to seek 

new solutions to the drug problem and make recommendations to 

General Westmoreland. The task force included representatives from 

most of the U.S. staff agencies, major subordinate commands of 

MACV. the embassy, the U.S. Agency for International Development, customs, and the Bureau of Narcotics and Dangerous Drugs. 

The task force worked through September to complete a report, the 

conclusions of which were embodied in MACV Directive 1904 of 

December 1970. The objectives of this directive were to eradicate the 

sources of drugs, to strengthen customs and postal procedures, to 

improve detection facilities, to co-ordinate the various drug abuse 

programs, to integrate law enforcement programs. to improve statistical reporting. and to rehabilitate drug abusers. 

The c.1mpaign against drug abuse was waged on many fronts. 

Commanders incorporated drug abuse talks as part of the command 

infonnation program; drug abuse councils were established in commands throughout Vietnam; chaplains, physicians, and judge advocate officers worked to impress on the troops the dangers of drug 

abuse; amnesty programs were established and detoxification centers 

were opened: law enforcement agencies intensified their efforts: and 

in 1971 individual and unit urinalysis tests to detect the presence of 

narcotics in the bloodstream were instituted. 

Despite the concerted efforts of the command. there was an alann· 

ing increase in the use of hard narcotics in 1971, when the number 

of offenders involved with hard drugs, mostly heroin, increased seven· 

fold, to 7,026. This trend was particularly disturbing in view of the 

continually decreasing troop strength in Vietnam. On 18 June 1971 

the Secretary of Defense sent a message to the U.S. services informing 
108 LAW AT WAR 

them of the presidclllial direction that the drug problem be given 

urgent and immediate attention and announcing a program to identify military personnel leaving Vietnam who were on narcotics and 

to give them the opportunity for drug treatment at facilities in the 

United Statcs. 

The U.S. command made a tremendous effon to curb drug abuse 

in Vietnam, and some progress was made. but drugs were to remain 

a significant problem until late 1972. when troop strength figures 

began to drop to the level of 1964 and earlier years. As the drug problem intensified from 1966 to 1972, the lega l emphasis for dealing with 

drug offenders grad uall y shifted from prosecution to administrative 

action. 

It became increasingly clear that trial by court-martial W3.5 an 

awkward, ineffective, and expensive means of attempting to cope 

with a large·scale problem. Moreover, the public attitude toward in· 

dividual drug users, particularly young soldiers, was changing; the 

public began to see these men not as criminals deserving punishment, 

but as suffering individuals requiring treatment. This attitude was 

reflected by the government and the armed services. Soldiers on drugs 

were encouraged to take advantage of the amneSty programs, detoxi. 

fication centers, and drug counseling programs, which became in· 

creasingly available in Vietnam in 1970 and 1971. Soldiers whose 

behavior indicated that they lacked the desire or ability to rehabili. 

tate themselves were eliminated through administrative channels. 

Soldiers who had unresolved court·martial charges pending against 

them for drug offenses and who did not wish to remain in the service 

ohen were allowed to resign for the good of the service rather than 

face trial by court·martial, unless the facts pertaining to the charges 

indicated they were active, commercial pushers of drugs, in which 

case trial was sought. 

Crim;,wi Jurisdiction Over Civilians 

Prior to 1965 most U.S. civilians in Vielllam were career govern· 

ment employees and serious criminal acts in the civilian community 

were a rarity. ru the number of civilians, primarily employees of U.S. 

contractors, in Vietnam increased, so did the incidence of crime at· 

tributable to them. Offenses committed by U.S. civilians were of 

three genera l types: rowdyism, abuse of military privileges, and black 

market activities and currency manipulation. 

The U.S. Ambass.1dor requested the MACV Staff Judge Advocate 

to prepare a staff stud y on the limits of the ambassador's existing 

authority over U.S. civilians in Vietnam. The study, completed in 

April 1966, looked to the United St.1tes Code, executive orders, the 

Penta la teral Agreement, and economic and other agreements between 

the United St.1tes and Vietnam for authority. The staff study con· 
DISCI PLI NE AND CRIMINAL LAW 109 

eluded that the ambassador could issue police regulations for all U.S. 

citizens in Vietnam if the regulations were not in violation of U.S. or 

Vietnamese laws, and that the armed forces police could enforce such 

regulations. The authority of the armed forces police to deal with 

civilians was based on the Vietnamese citizen's arrest law, which was 

similar to citizen's arrest laws in many U,S. states: on the need for 

military security: and on the authority of the ambassador as the 

senior U.S. official in Vietnam. 

The embassy assumed the responsibility for furnishing each U.S. 

civilian with an identification card, and for ensuring that all U.S. 

civilians were aware of the agreement authorizing the armed forces 

police to exercise certain police powers over them. Discretion and 

minimum force were to be used by armed forces policemen in dealing with civilians, and U.S. civilians who were apprehended were 

to be released on their own recognizance, released to their employers 

or supervisors, or released to the U.S. Consulate or Embassy, as 

applicable. 

The year 1967 brought an increase in serious crimes committed 

by U.S. civilians in Vietnam, and intensified discussion between the 

U.S. command in Saigon and the Slate Department in Washington 

over the policy of trying U.S. civilians by military courts. or special 

edncern to U.S. officials in Saigon were Americans involved in black 

market activities and currency manipulation. The State Department, 

however, considered administrative measures, such as withdrawing 

military privileges and loss of employment, to be sufficient for dealing 

with most offenses, and believed that only the most serious and exceptional cases should be tried by court-martial. 

The difference of opinion between the U.S. command in Saigon 

and the State Department concerning the exercise of criminal jurisdiction by the military over U.S. civilians in Vietnam arose over a 

total of sixteen cases which the U.S. Military Assistance Command 

desired to try during the period from November 1966 to August 1968. 

In six of these cases the command requested and received State Department approval to seek a waiver of jurisdiction from the Vietnamese. Two of the cases were dropped by the U.S. command because 

of problems that arose between the time charges were preferred and 

the time the command obta ined State Department permission to seek 

a waiver of jurisdiction from the Vietnamese government. In the 

remaining four cases, a waiver of jurisdiction was sought and was 

granted by the Vietnamese, and the cases were tried. 

One of the four cases which was tried with the consent of the 

State Department was that of William Averette, charged with conspiracy to commit larceny and attempted larceny of 36,000 U.S. go\'-

ernment-owned batteries. Averette was tried by general court-martial, 

convicted, and ultimately sentenced to confinement at hard labor for 
110 LAW AT WAR 

one year and fined $500. On 30 April 1970, the U.S. Coun of Mili· 

tary Appeals, the highest coun in the military system. reversed Aver· 

cue's conviction and ruled that the military had no jurisdiction over 

civilians in Vietnam because Article 2 (10) of the Uniform Code of 

Military Justice was applicable only in lime of a declared war. Thus. 

the question of whether, as a matter of policy, the military should try 

civilians in Vietnam was made moot. AJ a matter of law, the services 

could not exercise criminal jurisdiction over civilians in Vietnam, 

and no further cases were tried. 

Adminislrative Measures 

Because judicial action was ineffective in curtailing the illegal 

activities of U.S. civilians in Vietnam, the MACV command came 

to rely increasingly on the adminiStrative sanctions which had been 

proposed in 1966. Military privileges were withdrawn from offend· 

ing civilians, particularly U.S. contractor employees, throughout 

1966, 1967, and 1968, but it was not until 1969 and 1970 that the 

administrative "debarment" program reached its most unifonn and 

widespread application. (Debannent was the tenn used to denote 

withdrawal of military privileges and a detennination of unfitness for 

employment in Vietnam.) 

In addition to MACV Memorandum 190·1, which assigned reo 

sponsibilities for investigation and proceedings pertaining to debarment actions, the debarment policy was rurther rormalized in ~J> 

tember 1969 when Defense Procurement Circular n was made a 

part of all contracts for employment of civilians in Vietnam. This 

eli'mse notified all civilian employees planning to work in Vietnam 

under U.S. government-sponsored contracts that they were to abide 

by the regulations and rules of conduct established by MACV, and 

that if they engaged in illegal activities they would lose their military 

privileges and be barred from employment in Vietnam. The employing contractor agreed that he would tenninate the employment of an 

employee barred by MACV. 

In January 1970 the U.S. Embassy announced that, as a maller 

of U.S. policy, COntractor employees whose privileges were suspended 

or withdrawn ror cause by MACV would be considered unacceptable 

for continued employment under U.S. government contracts. In 

February MACV determined that this policy would be applied retrOactively; that is, individuals whose military privileges had been revoked in the past were also unacceptable for continued employment. 

As of January 1968 there were seventy-five individuals on the 

MACV Provost Marshal's debarment roster. By February 1970 the 

number had grown to 613; by April 1971 there were 943 U.s. civilians and nationals of other countries from whom military privileges 

had been withdrawn and who were unacceptable for employment in 
DISCIPLINE AND CRIMINAL LAW III 

Vietnam under U.S. financed contracts or as U.S. government direct 

hire employees on nonappropriated funds. Mast debarment cases, per. 

haps over 90 percent, involved currency manipulation, smuggling, 

or postal and black market violations. There were also debarments 

for firearms violations, larceny of government property, and serious 

driving offenses. Once their employment was terminated and their 

access to U.S. military facilities was cut off, many debarred civilians 

left Vietnam. Others, however, remained in Vietnam working at 

jobs unrelated to the U.S. government and living on the Vietnam 

economy. 
CHAPTER VIII 

Summing Up 

Winston Churchill once wrote: 

Civilization means a society based upon the opInion of civilians. It 

means that violence, the rule of warriors and despotic chiefs, the conditions 

of camps and warfare, of riot and tyranny. give place to parliamenu where 

la ..... ' are made, and independent courn of justice in which over long 

periods those laws are maintained. 

The American forces brought with them to South Vietnam an 

elaborate system of legal code and procedure, administered by their 

own lawyers and judges. All these composed well-defined. precise 

parts of the institution of American law and were for the United 

States military attorney famil iar tools. Probably no other modern 

fighting force in the world today has a legal system surpassing that 

of the armed services of the United States; this system accompanied 

and generally served well the U.S. forces overseas in combat. 

In order to render effective counsel to the Vietnamese legal community, it was first necessary for the MACV judge advocates to move 

away from their comfortably familiar American military law system. 

Any attempt to solve any of the command's legal problems in Vietnam by using only American methods would have guaranteed failure. 

Th is circumstance led to a new educational experience for the 

MACV judge advocates. who were obliged to exert a tremendous 

effon to find. assemble. and digest Vietnamese laws and procedures. 

It was also necessary for the judge advoca tes to understand the ground. 

ings of Vietnamese law-its roots in familial. religious. ethnic, and 

other disciplines of the South Vietnamese people-before any attempt 

could be made at constructive assistance in the development of the 

Vietnamese legal system. This coll ection, digest, and dissemination 

of materials on South Vietnamese law continued throughout MACV 

judge advocate operations in Vietnam and was a significant contribu· 

tion in itself to comparati ve law literature. 

In some areas, the legal system and legal philosophy of the United 

States did give the judge advocates acceptable solutions for problems 

confronting the U.S. advisers' Vietnamese counterparts. The discussion of claims, for example, illustrates the concern of the United 

St.tles and the allied forces even during tense combat situations to 
SUMMING UP 113 

provide recom~nse for injuries caused to the persons and properly 

of the innocent victims of war. A claims responsibility has been a longstanding tenet of the United Stales armed services. Discharge of that 

responsibility by the United States and the assumption of certain 

claims responsibilities by the South Vietnamese government served 

to develop a salutary identification in the claimant's mind between 

his personal plight and the concern of a compassionate government. 

The efforts of the U.S. Military Assistance Command to control, and 

to eliminate when possible, such pernicious activities as black market 

profiteering and currency manipulation were also examples of unilateral initiatives which later melded with the efforts of the South 

Vietnam~ authorities to control these illicit operations. 

One rather brief international agreement served as a link between 

the application of American and Somh Vietnamese legal systems in 

the country. This was the Pemalateral Agreement of 1950, which 

remained viable and which governed throughout the war years in 

significant areas such as jurisdiction and status. Noteworthy is the 

fact that neither the Unitecl Stales nor Vietnam found it imperative 

to renegotiate this agreement, even though conditions changed rad· 

ically and rapidly in the second decade following its signing. It was 

evidence of governmental pragmatism adminiSlered well through 

mutual respect, good will, and C<Hlperation. 

The application of the Geneva Conventions to prisoners of war 

and war crimes was complicated by the legal nature of the Vietnam 

conAict. The 1965 agreement under which the United States turned 

over its prisoners to the Vietnamese armed forces required great effort 

by many MACV advisers to assure accordance with the Geneva Con· 

ventions. The success of that effort earned the admiration of the 

international community. 

For the United States one additional complication of the Vietnam 

\Var was that it related to no other combat experience of the young 

American soldier. He found himself in the jungles of a Southeast 

Alian land, with no definable enemy or enemy lines. This lack of 

certainties in itself was his foe. The combat situations in which circumstances placed the young soldier were scarcely in the minds of 

the drafters of the 1949 Geneva Conventions, yet he performed his 

mission well. Part of the credit for his record is due to the diligent 

planning by the Commander, U.S. Military Assistance Command, 

Vietnam, for an effective policy on war crimes prevention and inves· 

tigation, and a program aimed at troop information and education. 

The rare blemishes, such as the occurence at My Lai, must nOl be 

allowed to obscure the lifesaving accomplishments achieved by the 

vaS( majority of our combat troops when they were dealing with the 

victims of the war. 

My Lai, which came in the period immediately following the 
J J 4 LAW AT WAR 

bloody but abortive Tel offensive of 1968, revealed that there is a 

need to keep an eye on legal planning over the course of time to be 

sure it retains its vir.alilY. relevance, accuracy. and worth. The dilutions of time and continual rotation of troops and officers on an an· 

nual basis are bound to weaken the legal struCture unless it is regularly strengthened with special care and anemion. Even so, no absolute insurance can be obtained that there will never be gross criminal 

abberations such as My Lai. 

Could the risks have been minimized had the legal effort been 

greater at that critical time? [ cannot now S:ly. but onc could suspect 

so. To what extent is part of the failure due to deficiencies in earlier 

law planning? This can only be speculation, but I am quite willing 

to recognize that there is a relationship. Had I to do the job over 

again, with all the resources of law manpower which were always 

afforded my office by the Commander, Military Assistance Command, 

Vietnam, 1 would assign full-time planning duties to an experienced 

senior military lawyer in my office. We did not do this in 1965-66 

because it seemed we could plan sufficiently within the operating 

divisions of the office, but it is apparent to me now that in a buildup, 

even one as measured and paced as in those days of early 1965 in 

Vietnam, planning for future legal services required just as much 

attention as any other aspect of military preparations. Planning is too 

demanding to be performed well by a military lawyer already completely encumbered with day-to-day work he regards as essential. 

1t must be accomplished by one who can stand off to the side and 

visualize the direction o[ change and the resulting requirements; 

yet he must be familiar with the scene and the developing situation. 

This certainly is not to say that change was unforeseen. Many 

changes and requirements were visualized early on. The plans for 

providing adequate numbers of military lawyers, with an appreciation for needed specialties and equipment for the several .service 

components, were on the whole adequate and satisfactory. But these 

were traditional requirements, predictable wherever in the world 

large forces are assigned. They did not take into account the special 

role law plays in wars of insurgency and counterinsurgency. 

The judge advocate field advisers added an important dimension 

to the law effort of the Military Assistance Command, Vietnam. They 

provided a U.S. military lawyer to the senior American military adviser in each of the four corps areas of South Vietnam; they observed 

the actual functioning of the American foreign claims operations, so 

important to good relations between a visiting force and the people 

of the host country; they saw the way refugees and prisoners were 

actually handled and processed; they established rapport with the 

key law and military figures in their zone of responsibility; and they 

reported military law problems as they perceived them. The field 
SUMMING UP 115 

advisers gave to lheir Vietnamese military counterparts advice and 

counsel, information, and support. And probably most valuable of 

all, they learned to understand something of the people of Vietnam, 

the better to gauge how we could best work together toward our 

common goals. 

In order for our field advisers to perform their duties, they needed 

to have English translations of the current applicable laws on such 

matters as arrest, search, and seizure; resources and population con· 

trol; confinement facilities; and the relationship between the military 

and the civilian police and judicial apparatus. To provide these 

officers with the required documents, we set about collecting all 

known Republic of Vietnam decrees that bore upon our interests. 

We had them translated as best we could, reproduced, and distributed to all U.S. personnel-and to many of our Vietnamese counter·' 

parts-who needed to know of them. In all of this we were greatly 

encouraged and aided by the Vietnamese lawyers and judges, military 

and civilian. 

The collection of decrees naturally led to the need to index the 

documents and their contents for ready field use. This task. continuo 

ously occupied the attention of several people in the Advisory Divi· 

sian, once the decree collection program gOt under way. The resullS, 

in knowledge of applicable law and in establishing a base of under· 

standing as to legal matters between the American and Vietnam~ 

military lawyers, were beyond our expectalions. From this base we 

were able to develop ideas and plans for changes in OUt procedures 

and regulations to the common benefit of the commands and the 

people we served. 

In our search for knowledge and understanding of the Vietnam· 

ese, the Law Society of Free Vietnam was conceived. Its pu~ 

wa.~ to provide a forum for the exchange of lega l ideas and informa. 

tion among the broadest nllmber of infonned participants-all law· 

yers and judges in South Vietnam, regardless of nationality, and all 

interested law students. The Law Society functioned for over a year, 

greatly aided by the Vietnamese·American Association, and accom· 

plished much it set out to do. As the war became hotter, however, it 

became increasingly difficult to assemble the society, and it gradually 

ceased to exist. The personal associations it fostered continued, how· 

ever, and benefited the individuals and the institutions that they 

represented for a much longer period. Even today former members 

of the Law Society serve the Republic of Vietnam in important 

JXlSitions. 

Once it became clear that the conflict in Vietnam had become a 

war, the application of the U.S. Unirorm Code of Military Justice 

and the suppression of war crimes as distinguished from common 

crimes became of prime importance. We were concerned that, insofar 
116 LAW AT WAR 

as we were able to accomplish it, all the Free World forces would be 

made aware of the applicable law and would apply it. From this developed fairly dose working relationships among the military law· 

yen of the Free World forces, especially among the Vietnamese, 

American, Australian, and Korean lawyers. Contact with the representaliv~ of the International Committee of the Red. Cross and collection of data on prisoners. their apprehension and disposition, 

~me important. Throughout all the activities of the Staff Judge 

Advocate, the bonds of professional association that existed between 

the American and the Vietnamese military lawyers were the most 

significant asset we had. These bonds required daily CaTe and attention in order to grow strong, but this care and attention returned 

dividends in friendship. undemanding. and co-operation that remain 

substantial even today. 

Throughout the period dealt with in this monograph. the attitude of the Military Assistance Command toward legal service to the 

command was almost ideal. There was never an obstacle to seeing the 

commander<lient. The entire headquarters was receptive to helpful 

suggestions. ideas, and innovations. Never did the legal office propose an action that was not readily approved. and even requests for 

resources, most especially manpower. were promptly and favorably 

acted upon. The major difficulty. as it is for most lawyers, was the 

proper allocation of available professional time. There was always a 

heavy pressure of time<onsuming work and lillie opportunity for 

reflection and long-range planning, but this was a problem only the 

lawyers themselves could resolve. 

The law library and necessary references ultimately were ade· 

quate, but since most of the pressing work was in areas for which 

there was little precedent or exploratory study material, any inadequacies of the law materials in the earlier days of the Military Assistance Command were of minor significance. 

Because the lawyers assigned to the MACV legal office were from 

the Army. Navy. and Air Force, they were all concerned :n first that 

they would be working in a strange and difficult legal environment. 

This concern was warranted by the special nature of the conflict in 

Vietnam but not by any service differences in procedure, terminology, 

or methodology. It did not take any of the lawyers. regardless of his 

branch of service. long to grasp his role and make whatever minor 

adjustments were necessary in his own work style to meet the need!S 

of the office. Service co-operation and unity of purpose were paramount. 

The American Embassy in Saigon was especially helpful and useful to the MACV Staff Judge Advocate. who also furnished legal 

advice to the embassy. Key legal issues were personally briefed to the 

ambassador (at first. General Maxwell Taylor and subsequently 
SUMMING UP 117 

Henry Cabot Lodge) , and the ambassador's staff was kept informed 

of all major legal problems and developments. The legal programs 

affecting in any way the Vietnamese people or communities were of 

special interest to the embassy, and the Staff Judge Advocate was 

encouraged in a variety of ways by the embassy staff to expand his 

associations with the bench and bar of the Republic of Vietnam. 

There was rarely any other person or office in the American mission 

that could do this until the U.S. Agency for International Development, in 1968. created a civilian legal advisory position. For most of 

the period of this monograph the military lawyers of MACV and its 

service components were the only U.S. lawyers in Vietnam interested 

officially in law matters, military or civilian. 

Finally, no discussion of legal matters in Vietnam is complete 

without a tribute to the South Vietnamese military lawyers who were 

the counterparts of the MACV judge advocates. Dedicated professional advocates. scholarly in both Vietnamese and French legal 

systems, these men also showed themselves eager to obtain a firm grasp 

of American jurisprudence. They were ~tt otic lawyers, judges, 

and law professors called to serve their country by using their skills 

to solve the peculiar problems caused by so unique a war. The Viet· 

namese lawyers were quick to impart knowledge of their legal system 

and equally quick to learn the American military and civilian law 

systems. Some concepts and high principles from American law have 

been incorporated into the Vietnamese military law and procedures 

-a tribute to the excellent rapp:rrt established by the MACV judge 

advocate advisers with members of the Vietnamese legal profession. 

American military attorneys undertook a variety of programs and 

grasped numerous opJX>rtunities to educate the Vietnamese: in American civilian laws. The recipients of these educational programs were 

those who now sit, or will sit, in positions of inAitence, shaping the 

future affairs and institutions of the South Vietnamese government. 

In truth. it may be said that the MACV military lawyers left the 

Vietnamese a legacy-American law, and respect for the potential of 

law in the conduct of affairs of a free and civilized people. 
Appendix A 

CHRONOLOGICAL LtsnNCS OF STAFF JUDGE ADVOCATES IN VIETNAM, 

JUNE 1959-MARcH 1973 

U.S. Army Element, Military Assistance Advisory Group. Vietnam 

Colonel Paul J. Durbin JUDe 1959-July 1961 

Colonel George C. Eblen August 1961-July 1962 

Colonel George F. Westerman August 1962-July 1965 

Colonel Richard L. Jones July 1965-November 1963 

U.S. Military Assistance Command, Vieroam 

Colonel Robert J. DeMund Do:embO" 1965-November 1964-

Colonel George S. Prugh November 1964-June 1966 

Colonel Edward W. Haughney July 1966-July 1967 

Colonel Robert H. Ivey July 1967-March 1969 

Colonel Bruce C. Babbitt May 1969-August 1969 

Colonel Lawrenc.:c H. Willianu August 1969-July 1970 

Colonel RobertK.Weaver July 1970-June 1971 

Colonel La'VTen~P. Hansen June 1971-August 1971 

CotonelJames F. Senechal November 1971-December 1972 

U.S. Army Vietnam/ Military Assistance Command, Vietnam 

Colonel Joseph N. Tenhet. Jr. December 1972-March 1973 
Appendix B 

CoMPIlATION 01" LAws DUUNO WITH OPPENSES AoAINST NAnONAL 

SECUIUTV IN THE REPUBLIC 01" VIETNAM, 1967 

1. To combat communist subversion and insurgency, successive governments of the Republic of Vietnam (RVN) have promulgated emergency 

enactments setting forth offenses against the national security. The extremely 

difficult political and military situation has afforded a poor environment 

for law-making, so that the resulting collection of Decrees and DecreeLaws does not fonn a hannonious and comprehensive whole. Copies of 

English translations of the laws, decrees, and related publications mentioned herein are available in the office of the Staff Judge Advocate, U. S. 

Military Assi5tance Command, Vietnam. 

2. The new constitution, promulgated 1 April 1967, provides in Article 4: 

a. The Republic of Vietnam opposes Communism in any form. 

b. Every activity designed to publicize or carry out Communism is 

prohibited. 

The public policy is thus clear, it being left for specific enacbnents to 

define offemes and provide punishment therefor. 

3. 'Under the new Constitution, the authority of the Executive to iuue 

decrees is very limited. Legislative authority is vested in the National 

As.sembly. However, for the purposes of this study, it will be assumed that 

the existing executive decJ'eC$ in the field of national security will continue 

in force until repealed, superseded or nullified by legislative, executive or 

judicial act. 

4. For purposes of convenience, offenses have been separated into two 

main groups, each using the same tenninology employed in die decrees. 

However, it should be unde.ntood that the legal terrTUI used are not 

synonymous with those defined and employed in Western law books or 

dictionaries. 

Offenses Punishable by Imprisonment 

for More Than Five Years or by Death 

Under this heading are crimes in the nature of treason, sedition, 

espionage, and sabotage. Acu of insurgency, revolt, or terrorism, and acu 

directed against defense or government facilities, are prohibited as set 
120 LAW ATWAR 

forth below. A brief description of some of these offenses, with references 

to the appropriate law or decree, follows: 

Ordinance 47 of 21 August 1956 

a. Bear arms against the RVN. Art.4 ( I) 

b. Solicit or aid aggression against the RVN, by a foreign nation 

or a communist organization. Art.l&4 ( 2) 

c. Help the personnel of a foreign nation or a communist organization to illegally cnter or live on Vietnamese territory, or help 

them communicate with each other or move out of Vietnamese 

territory. Art.! (5)&4(2) 

d. Give or attempt to give classified defense information to a foreign nation or a communist organization. Arl.2( 1) &4(2 ) 

c. Sabotage defense ordnance. Art.2 (3)&4(2 ) 

f. Unclenninc public or military morale. Art.2 (4 )&4(2 ) 

g. Obtain information on defense facilities, by subterfuge or with· 

out authorization. Art.3&4(2) 

h. Carry on communications prejudicial to national defense. 

Mt.3 ( 2 )&4(2 ) 

I . Solicit others, or agree to do, any of the above acts. ,<\rt.S 

j. Recruit troops for a foreign nation or personnel for a commun· 

ist organization. Art.7 (3 ) 

k. Knowingly communicate or maintain relations with the personnel of a communist organization or the citizens or agents 

of an enemy nation in time or war. Art.7 (4) 

I. Knowingly carryon commercial transactions, whether directly 

or through others, wi th the personnel of a communist organization or the citizens or agents of an enemy nation in time of war. 

Art.7(S) 

m. Prejudice the territorial integrity of the country or cause the 

R VN to lose control over any part of her territory. Art.8 (1 ) 

n. Conspire with foreign agents with intent to prejudice the military or diplomatic situation of the RVN. Art.8(2) 

o. Unauthorized entry into restricted areas around defense 

installations. Art.8(6 ) 

p. Aiders and abettors are defined (Art. 9) and are liable to the 

same punishment as those who actually commit the crime (Art. 

59, Penal Code of South Vietnam ). 

q. Failure to infonn the authorities of prohibited activities is 

punishable. Art.tO 

LawNo.10/59 0f6May 1959 

r. Listed acts of $3.botage or terrorism, or attempts thereat, com· 

mitted with spttified intent are punishable. Art.l&2 

5. Adhere to an organization as a member, or conspire with others, 

so as to aid in the planning or commission of the foregoing 

offenses. Art.3 

Decree-Law No. 18/ 64 be 7 August 1964 

t. Terrorists, $3.boteurs, and speculators who injure the nation's 

economy, apprehended en flagrant delit, will be sentenced 

to death. Art.5 
APPENDIX B 121 

Decrcc-l.a\\' No. 00+165 of 19 July 1965 

u. Any person who joins a communist organization or conspire. 

with the communists, (0 bear anns against the RVN, shall be 

scntenced to death and (otal or partial confiscation of his 

property. Mt.14 

v. A person who rebels (against the RVN), or recruits troops and 

furnishes them with weapons and ammunition, without order 

or authorization from the Government, shall be sentenced to 

death. Art.15 

w. Inciting a mob, in order to disturb the security of the State. 

ArLI6 

x. Disseminating communist propaganda or directives; attempting 

to undennine the anti-communist spirit of the count!')' or to 

prejudice the struggle of the people and the Anned Forces; 

plotting to act under guise of peace or neutralism in accordance 

with communist doctrine. Art.17 

Decree-I.aw 1'\0. 004/ 66 of 15 February 1966 

y. Hooliganism: Carrying illegal weapoll5 without justified reason 

and with intent to commit other offenses; forging or using 

forged pcnnits. ArL20 

Those persons who gather in assemblage of two or more and 

attack, resist or obstruct the public forces in their duties shall 

be put to death. The killing of such offenden in self defense 

shall be excused. Art.22 

Offenses Punishable by Imprisonm ent tor Five Years or Less· 

Decree-I..aw No. 93/SL/ CT of I February 1964 

,. Acts in furtherance of Communism 

Neutralism. 

Law No. 004/65 of 17 May 1965 

or pro-Communist 

Art.I&2 

aa. Communist propaganda and political activity; substantially the 

same prohibited activities as in subparagraph "x" above. 

(In general, activity described under "aa" and "z" may be 

charged under "x", wh ich is a subsequent enacunent providing 

heavier ~ntences during the State of War, declared 24 June 

1965.) 

Draft Evasion and Desertion 

bb. Draft evaders and their accomplices are subject to sentences of 

confinement at hard labor. 

Art.10-13, Dccree-J.aw 4/ 65 of 19 July 1965 ; 

.. \rt.II, Decree·Law 4/ 66 of 15 Feb. 1966 

cc. Deserters and their accomplices 3re subjeet to sentence or confinement at hard labor or to death, depending on the c.ircumstance! of desertion. Their sentence is to be served in military 

field labor battalions. 

Art.l-3, Decree-Law No. 015/ 66 of 21 April 1966 

-Thae oIrerues are usually charaCleriud in charge. and indictment. u "endangerina the natiOnAl security" or "jeopardizing the national Itcurity." See Article 91, 

Penal Code of South Vietnam. 
Appendix C 

THE R01.E OP CML LAw IN CoUNT£JUNSUROENCY 

Staff Study for Colonel George S. Prugh, 1965 

Purpou: To examine the role of the Civil Law in the counterinsurgency in 

Vietnam and to make pertinent recommendations. 

Assumptions: None 

Discwsion: 

1. Why this study was made: 

a. In the course of examining the legal system of Vietnam to determine where improvements could be made to make the system more effective 

in the prosecution of the war against the Viet Cong, it becomes apparent 

that a great gap exists betw«n the work of the police and the work of the 

judiciary. In short. apprehension of Viet Cong becomes more efficient 

but the disposition of their cases is far from satisfactory. Some reflection 

on this specific problem leads to doubts concerning the utility of the civil 

code system generally as an effective tool against insurgency. At the same 

time it becomes apparent that the place of law in the counterinsurgency 

efforts iJ not "''ell understood or studied, despite the fact that the establishment of a rule of Jaw and order in the society is probably the most 

important goal that could be achieved. 

b. That portions of this inquiry were a proper study for civilian Jawyers 

is readily apparent but there are none in Vietnam to do it. 

c. With these thoughts the study was begun by questioning leaders of 

the Vietnamese bench and bar, civilian and military, speaking with students, 

practitioners, and Jaymen, and collecting some of the factual data. 

2. The !Aga! System of Vietnam: 

a. French Civil Code Heritage: 

The French heritage is heavy in the entire legal system, military and 

civilian. The older, more renowned lawyers and judges are often found to 

be French educated, French and non-English speaking. Profes.sional works 

are often published in French. The French trapping1 as well as institutioru 

are adapted by the Vietnamese, and these are superimposed over the 

Vietnamese society without much change. The Code Napoleon inHuence 

is naturally strong, and the civil code system, as distinguished from the 

common law, is employed. Trial by jury iJ not employed, the technique of 

cross-examination is severely limited, and the authority of an examining 
APPENDIX C 123 

magistrate is much enlarged as compared with US or common law practice. 

b. Internal Geographical Differen ces: 

The geographical divisions of Tonkin, Amman, and Cochin au uflected 

in the law in that in the Republic of Vietnam there are two distinct criminal codes, one for central Vietnam (Amman ) and the other for the south 

(Cochin) . There are as a result two distinct courts ,ystenu.---one with its 

principal office in Hue and the other in Saigon. 

c. Courts: 

(I) There is one supreme court, the Cour de Cassation, which .its 

in Saigon. Below this court are l\\.'o courts of appeal, one at Hue and one 

at Saigon. Each of these courts takes appeals from courts of first instance, 

that is, the usual trial court consisting of a magistrate, an examining magistrate, and a prosecutor, or from courts of peace with extended jurisdiction, 

in which all of the foregoing functions are accomplished by one man, Below 

these two types of courts are justices of the peace, who handle the most 

minor cases. On paper the structure seems to be complete enough (See 

Tab A). 

(2) In fact, it is only in the major citics that these courts can be 

depended upon to function as intended. The justices of the peace are not 

legally trained and their powers are dependent upon such factors as the 

military situation, the strength of the I()(',al military personalities, the 

provinl:e and district chiefs, and the national police effort in the area. 

(3 ) TIlese courts do not handle military offense cases, they do not 

handle cases of offenses against state security, and generally they do not 

take any cases involving military personnel regardless of the offense of 

which they may be charged. The courts are not themselves expected to be 

the law enforcen-the province or district chi!'! will be the prime mover, 

with the prosecutor being IOmr. inAut'nce in this regard. These courts do 

handle cases involving draft dodgers and resources control offenses, however. 

(4) Civil disputes may come to these courts, but there is a basic 

reluctance by the Vietnamese to take their difT~rence, to court. In this 

regard one law student was heard to remark that there is an old Vietnamese 

saying, "better to go to hell than to go to court", Another said that to go 

to court was a mark of shame, an acknowledgement that one was unable 

to solve his problems with his neighbor "on moral grounds". The result is 

that the courts themselves playa rather insignificant role in the Vietnamese 

society. Few people can afford legal counsel, there is a fundamental dislike 

of going to law, and there are remarkably few lawyers available. 

d. Bar: 

It has been said that there are about 160 lawyen in Vietnam. There is 

probably a similar number of "judges", a tenn which includes not only 

the trial magistrates but the examining magistrates and the prosecuu'YC .taft'. 

When this number is contrasted with, say, a large state in the United States 

with a similar population, the Vietnamese have about 1 % of the lawyen 

that would be available in a comparable state in the United States, The 
124 LAW AT WAR. 

nct result is that not only the courts but the entire legal profession plays 

a small part in the Vietnamese society. 

e. StatuUs: 

What part law plays in Vietnam is 6Sentially repressive and not dcsirable from the standpoint of the citizen. There are a great madY laws, but 

these are not widely transmitted, are not well known by the people affected 

by them, are rarely removed from effect even when superseded, and are 

not readily available to the general public. In addition, there are a great 

many directives that have the force and effect of law which, because they 

are given limited distribution or are classified in nature, are not at all 

known to the public. This adds to a feeling of disrespect or disregard of 

the law. Lack of enforcement adds further to the deterioration of the 

respect for any Vietnamese law. 

£. Summor)': 

In summary. Ihen, we find a system of law which was originally 

engrafted upon the society and not devised for its own institutions, a bar 

which lacks vigor and strength and seem. primarily interested in operating 

on a passive "closed shop" basis, and a public which is ignorant of its 

own law, lacks respects for its own law, and has no real interest in its 

enforcement. 

3. Current Role 0/ Courts and Bar in Counterinsurgency: 

a. Trial 0/ VC Suspects: 

There is very little benefit to the nation's counterinsurgency effon by 

the bar and bench. Since there are few lawyen available outside of the 

major cities there are no trials of VC suspects, accomplices. or sympathizers 

away from these citics. Such offendcrs are tried in thc military tribunals, 

if at all. 

b. Need /or Counsel: 

There is a need for counsel in such cases but they are only available at 

the trial and evcn there not of widespread use. Frequently suspects are 

held for extraordinarily long periods in detention prior to trial. 

c. Delay: 

The elaooratc French civil code procedures in contested cases require an 

inordinate delay, extending sometimes into many months, and often into 

years. 

d. Alternatiue Procedures: 

Because these labof$ are not often productive even after thc hcavy 

invesunent of time, there is frequent recouTX to IOmc othcr mcthod. For 

example, suspects will often be sent to re..education ccnters for two ycar 

periods (renewablc) without any fonn of trial. It is reported that in many 

cases the suspect is released without any punishment or, at worst, only a 

few months "re..education" and hc thereafter shows up at his old haunts. 

The law plays no part in this activity in any way. 

4. Role Court and Bar Could Play in Counterinsurgency: 
APPENDIX C 125 

A vigorous bench and bar could be of great value to this country in 

its counteriruurgency efforts. 

( I ) State Security 0De,ueJ: 

Fint of ail, it would provide a forum for the reasonably prompt and 

effective trial of persoru charged with offenses against the State, and conviction of those who have committed such offenses. 

(2) Resources Control: 

Second, it would provide a forum for the enfon:ement of the resources 

control laws. 

(3) General LAw Enforcement: 

Third, it would provide a service, much needed, for the general enfon:ement of laws. 

(4) Identification with Law: 

Fourth, the bench and bar could be a vehicle for identification of the 

individual with his country's laws by use of a jury system (now being 

actively considered by the Minister of Justice ). 

(5 ) Government Participation: 

Fifth, the courts and lawyers could serve as a representative of the 

service provided by the central government. 

(6 ) Emergence from Traditionalism: 

Sixth, the courts and the law provide a method for breaking down the 

barrier of the traditionalist lOCiety of Vietnam. 

(7 ) Professional aid to Government: 

Seventh, the vigorous bar would provide the government with professional advice not available to it (witness the government's plight in trying 

to get professional help in connection with the election law drafts). 

(8 ) New Ideos: 

Eighth, injection of new ideas in the bench and bar provides an opportunity to wear away some of the dead hand of the French heritage which 

really drags the entire legal profession and prevents its growth. This would 

mean that the legal sYltem could be by Vietnamese, of Vietnamese, and 

for Vietnamese. 

(9) Recodification: 

Ninth, the bench and bar could aid the government by pointing out 

those statutes which are no longer to be enforced, recodifying the law into 

usable terms, and an orderly arrangement, and seeing to the law's dis.semination. This would begin to build some respect for the law, eliminate some 

of the fear and start a base on which an orderly government can be built. 

5. Mean s to Generate these Developments: 

The military lawyers have been trying to inject some of the leadership 

needed to develop the bench and bar as indicated above. The wk is too 

large (or them to accomplish, in the light of their regularly assigned wk •. 

They can still be of material help but it is clear that there ahould be a full 

time civilian effort to generate the programs desired. It is estimated that 

three full time practitioners, devoting their entire effort to an advisory 
126 LAW AT WAR. 

program for the civilian bench and bar, could make a real breakthrough 

within two years and have their influence widely felt within five yt:an. 

One of these could be located in the central part of Vietnam, spending 

considerable time at the law school at Hue. The semnd would do the same 

for the south, also teaching at Saigon Faculte de Droit, and the third would 

be the chief and coordinator with the Minister of Justice and the Bench. 

From these three could come the plans for contractual lUSistance in the 

recodification program, the training of indigenous experts, and the handling 

of t~hnical assistance from CONUS. If recruitment of civilian practitioners 

proves an obstacle possibly Anny officers on excess leave would be available. 

6. Urgency: 

With the CUrTent feeling running against French influences and in 

favor of new ideas, there is too good an opportunity at the present, and it 

should not be missed. The Minister of Justice is receptive to US help, there 

is an abiding need, the bar itself has taken far too long to make any real 

progress by itself in the recodification effort, and the Government seems 

to realize that the couru and the legal system are not being much help 

in the war effort. Now is the time for the US to move energetically in 

the law field in Vietnam. 

7. Militar>, Ro/~: 

Because of the natural tendency of Americans to inject the American 

concepu into their considerations when dealing with matters of law, there 

is some confusion as to the relative roles of the military and civilian in the 

law enforcement process. In the civil law system employed in Vietnam all 

offenses against State security (VC type cases) are properly tried in 

miliar>, tribunals. Thls is so even though the initial police effort may be 

a civilian, through the national police. Resource control and d raft dodger 

cases are tried in the civilian courU, hO'¥\-'ever. There will remain a large 

function to be performed by US military lawyers as advisors to their 

RVNAF counterparts operating the military tribunal structure and prose· 

cuting the ve. But the fact remains that the initial law work in VC cases 

is civilian, so there is a need for a similar effort in the civilian coum and 

prosecutive agencies. 

Recomm~"datio" : 

That this matter be brought to the attention of the Director of USOM, 

with a view to encouraging his agency to establish a facility to aid and 

advise the RVN civilian legal institutions in order to improve their effectiveness in the bringing of law and order to Vietnam. 
Appendix D 

EXPLOITATION OF HUMAN SoURCES AND CAPTURED DOCUMENTS 

HEADQUAR.TERS 

UNITED STATES MIUTARY ASSISTANCE COMMAND, VIETNAM 

APO San Francisco 96222 

DIRECTIVE 

NVMBER 381-11 I 

MIUTARY INTELLIOENCE 

5 August 1968 

(MACJ26) 

EXPLOITATION OP HUMAN SoURCES .... 1'10 CAPTURED DOCUMENTS 

1. Purpose. This directive announces policy and prescribes responsibilities 

and procedures for the intelligence exploitation of human sources and 

documents captured or acquired by United States military forces. 

2. Definitions. 

a. Detainees. Persons who have been detained but whose individual 

status has not yet been determined. All detainees must be classified expeditiouslYa5 Prisonen of War, Returnees, Civil Defendant~ or Innocent Civil. 

ians. The various categories of dctainct"s are described at Annt".JC A, MACV 

Directive 351-46. 

b. Doubtful Cases. PeJ'S(lns who have committed a belligerent act and 

whose entitlement to status as a PW is in doubt. Doubtful eases will be 

proceued as outlined in MACV Directive 20-5. 

~. Very Important Sources. Human sources assessed by the G2/SZ to 

be of significant intelligence value because of their rank, level of acceu to 

information, area of knowledgeability, or particular unit to which as.~igned. 

d. Documents. All written, printed, drawn or engraved material, sound 

or ,'oice resoundings, photographs, exposed films, insignia, or reproductions 

of any of the foregoing. 

3. General. The intelligence exploitation of human sources and captured 

documents is accomplished through a combined M ACV /RVN AF /FWMAF 

exploitation system. The concept of combined interrogation of sources 

and exploitation of captured documents is practiced at all t"chelon! from 

sector to national level. This mutually supporting system provides for the 

exchange of captured documents, human sources, and intelligence reports, 

1 ThU directive 5Upenedl!!l MACV Directive 381_11, 4 May 1967. 
COMBINED 

INTERROGATION CENTERS 

SOUTH VIETNAM 1968 

o CO .... "ID JII,LIU"Y INTI""OUnOH CUUlt 

o CO •• ,HIO eo"'. uor .. "".."010 UN1,,, 

o CO .... "ID DIVIIIOII IIIrUllourlON "liT" 

, .. I ! I ' , ;, , , 'OO , '~" 

IOO~' ""'" 

e A"K,,, 

II 

CORPS 

MAP 2 
APPENDIX D 129 

and i. designed to aatisfy lattical strategic, and counterintelligence requirements of the US, RVNAF, and FWMAF. The system is comprised of 

the following: 

a. A Combined Military Interrogation Center (CMIC ) located in 

Saigon. 

b. A Combined Document Exploitation Center (CDEC) located In 

Saigon. 

c. Combined Interrogation Center (CIC) located in Corps Tactical 

Zone •. [Map 2] 

d. US interrogation teams attached to ARVN sectors, special zones, 

divisions, and corps; and ARVN interrogation teams attached to US/ 

FWMAF separate brigades, division, and field force headquarters. 

e. Additional interrogation and document exploitation .upport p~ 

vided during specific operations as follows: 

(1) The ARVN Section S2 will provide US/ FWMAF one or more 

personnel when an operation is conducted in one province. When an operation involves more than one province, the AR VN S2/ G2, at .pecial zone, 

division, or corps will provide personnel to assist in human source and 

document exploitation. 

(2) The Province National Police, National Police Special Branch, 

and the Special Branch US Advisor may also provide interrogation support, 

document screening, and exploitation auistance. 

(3) Upon request of US/ RVNAF/ FWMAF, combined interrogation 

and document exploitation field team. are provided by the ACofS, J-2. 

4. R~sponsjbililies. 

a. The ACofS, J-2 is responsible for developing plans, policies, and 

procedures for the intelligence exploitation of human sources and captured 

documents. The priority for exploitation is tactical and strategic intelligence, psychological operations and public information. 

b. Commanders of .ubordinate commands as defined in MACV Directive 310-2 will insure compliance with the procedures contained here. 

5. Exploitation 0/ Human Sourc~s. Interrogation. 

a. Detainees. 

(I) Detainees will be screened expeditiously by the capturing unit to 

detennine PW or non-PW status, to segregate knowledgeable sources, and 

to establish interrogation priorities. All classified detainees will be disposed 

of as prescribed by paragraph 5 of Annex A to MACV Directive 381-46. 

(2) Interrogation of souJ"ttS may be conducted at all level. of command; however, interrogation will nonnally be limited to that information 

which is of immediate value to the tactical commander or hiJ subordinate 

units/ agencies. All interrogations will be conducted according to the 

Geneva ConventiolU Relative to the Treatment of Prisoners of War (GPW) 

with particular regard to the prohibitions against maltreatment contained 

in Article 17 and the fact that these prohibitions apply equally to detainees/ 

PW (Article 5, GPW). When US personnel have knowledge that violation 
l~O LAW AT WAR 

of the!.C provisions occur on the part of FWMAF or RVNAF, the senior 

US commander involved in the operation should point out the violation 

to the FWMAF or RVNAF commander. A report will then be forwarded 

to this Headquarters, ATTN: MACJA. 

(3) Sources should be exploited initially to .atisfy the priority intelli· 

gence requirements of tactical units. There must be adequate coordination 

at all levels so that common requirements are pooled for servicing by the 

unit or agency having custody of the source. In accordance with collection 

priorities, but with emphasis on timely fulfillment of urgent military requirements, reciprocal arrangements should be made for subsequent acces.ses to 

iIO urces by interrogators representing US Counterintelligency (CI), RVN 

Military Steurit}' Service (MSS), US advisors to National Police Special 

Branch, National Police Special Branch, the Sector 52 Advisor, Sector 52, 

and the National Interrogation Center (NIC). When it is not feasible for 

representatives of the above units/ agencies to interrogate sources, the 

capturing unit will, when conditions pennit, conduct the interrogation on 

behalf of these units/ agencies. 

(4 ) The normal evacuation of PW's is from capturing unit to division 

or separate brigade, then to Corps PW Camp. Selected PW'. may be 

released to the AR VN Corps CIC, and in the case of very important PW'. 

direetly to the CMIC in Saigon for detailed interrogation. Knowledgeable 

IOUJ'CeS, regardless of rank, will move through the interrogation chain as 

shown at Annex 8 . 

(5 ) PW's who have been captured by US forces or who have been 

turned over to US forces by FWMAF, as delineated in MACV Directive 

190-3 will remain in US military channels until rele:ued to the CMIC, 

the ARVN Corps CIC, or to an ARVN PW camp. PW accountability 

procedures are explained in MACV Directive 190-3. 

(6 ) If it is necessary to reinterrogate a PW after he is turned over 

to an ARVN Corps PW Camp, th~ source may be retrieved by coordination 

with the ARVN Corps Gl. Retrieval of PW'. interned at the Central PW 

Camp on Phu Quoc Island will be coordinated by the ACofS, J-1. 

(7) Exploitation of sources held at GMIC normally involves a period 

of from one to seven days. Exceptional cases can be held at CMIC up to 

four months, but any source held at CMIC in excess of four months will 

require the approval of the J2/ JGS and the ACofS, J-2. 

b. Returnees. 

(I) Returnees are particularly fruitful sourus of information because, 

unlike PW's, they have made 3. personal decision to reject their former 

allegiance. The psychological barrier of "name, rank, se"~re number, and 

date and place of birth" does not exist. Interrogation, exploitation, detention, and processing must take into full account the significantly different 

status of the returnees. 

(2 ) GVN authorities require that the returnee be delivered to a Chieu 

Hoi agency within 48 houn of the original contact with friendly elements. 
APPENDIX D 131 

During this period he may be interrogated for perishable information of 

immediate tactic.al value. If, for some reason, he cannot be delivered to 

the local Chieu Hoi agency within this length of time, immediate notification must be given the Province Chieu Hoi official! of lhe arrival of the 

returnee. Interrogation and exploitation should be accomplished as expeditiously as possible. 

(3) Returnees reporting to GVN agencies or directly to the Province 

Chieu Hoi Center will be available at the Chien Hoi Cenlt'r for interrogation upon request by the local senior U5 intelligence officer to local Chieu 

Hoi officials. CVN Chieu Hoi regulations require that interrogations be 

conducted in the Chieu Hoi CenteB which are located at Province, Region, 

and National levels. The purpose of these regulations is to prevent hostile 

interrogation or mistreatment of Hoi Chanh. In special cases, however, 

returnees may be removed from the Center pro\·ided Chieu Hoi officials 

are aware and are in agreement with proposed action. The local senior US 

intelligence officl"r will establish continuing liaison with ARVN and GVN 

Chieu Hoi officials to insure that returnees who report directly to the 

Province Chieu Hoi Center are properly interrogated and reported. 

(4) Returnees may be 85ked to volunteer to assist military operations 

al guides or infonnants; however, such request must be approved by the 

local Chieu Hoi officials. Units using returnees in such operations will 

insure that the individuals are adequately protected, fed, housed, and 

uturned to the Chieu Hoi Center immediately upon completion of the 

operation. A report will be furnished the local Chieu Hoi officials of the 

results of the operation in order to properly reward the returnet: for his 

infonnation. 

(5) Receipt for confiscated weapons, monies, and documents will be 

issued to the returnee by the receiving unit or agency prior to transfer 

of the retumet: to the Chieu Hoi Center. 

(6 ) Retume'el should not be evacuated as PWs, but should be delivered 

to the nearest Chieu Hoi official or office (there is an office in each district). 

If for some reason returnees must be evacuated through intelligence channels to higher or adjacent headquartcB, the CMIC, or a Corps CIC, the 

local Chieu Hoi officials must be notified. 

c. Refugees. The interrogation of refuget:s possessing information that 

satisfies military intelligence: requirements will be accompli.'hed by the 

Sector 52 or the 52 Advisor.' 

I The remainder of the directive, pertamml 10 the proceuing of acimini.trative 

report. and the exploitation of documenll, hat not been reproduced. 
APPENDIX E !33 

(1 ) Coordinate the inspection program 10 include liaison with the 

ICRC,ll/JeS, RVNAF, and FWMAF. 

(2) Escort ICRC delegation to PW facilities throughout the RVN. 

(3) Advise the Provost Marshal General (PMG), RVNAF, on compliance with the Geneva Conventions at RVNAF facilities. 

(4 ) Monitor the ICRC visit reporting system. 

b. The ACofS, 1-3, MACV, will provide air tr.uuportation for ICRC 

visits to PW facilities. 

c, The Staff Judge Advocate, MACV, will provide legal guidance concerning the applicability of the Geneva Conventions. 

d. CG, USARV; ce, III MAF ; and COMNAFORV, will establish 

necessary procedures at all US forces operated detain~ PW facilities within 

their jurisdiction 10 insure that: 

(I ) Proper escort of leRC delegates is provided. 

(2 ) Adequate copies of the Geneva Conventions are available to detainees/ PW' •. 

(3) The Geneva Conventions are complied with. 

(4) Interrogation of all detainees/ PW's is conducted within the observation of a military policeman (or suitable third party if no military policeman is available ) . 

6. Procedures. 

a. Upon receipt of proposed itinerary of the ICRC delegation, the 

ACofS, J-1, MACV, will: 

(I ) Obtain transportation from Chief, Anny Aviation Support Branch, 

J-3, MACV. 

(2) Appoint an escort officer to accompany the delegation. 

b. If the inspection concerns a US facility, the ACofS, J-l, MACV, will 

notify the component command concerned and request the command 10: 

(I) Arrange for local transportation, meals, and billets as required. 

(2) Appoint an escort officer to accompany the delegation. 

c. 1£ the inspection concerns an RVNAF facility, upon request of 

11/ 1e5, the ACofS, 1-1, MACV. will request the d~puty senior advisor of 

the visited crz to arrange for local transportation, meals, and billeting 

as required. 

d. If the insptttion concerns a FWMAF facility, the ACofS, J-I, 

MACV, will conduct liaison with the respective FWMAF headquarters to 

arrange for local transportation, meals, and billeting as required. 

,. Reports. Reports submitted in accordance with this directive use Report 

Cont"'! Symbol MACJI~2. (RCS, MACJI~2.) 

a. US Facilities. The component command escort officer will record 

discrepancies noted by the ICRC on Part I of MACV Fonn 453 (lee 

Annex A), and forwarded the Conn to the subordinate command responsible 

for the facility. The responsible commander will insure that the P\V facility 

commander records corTCi:tive action taken on Part I I of the form and 

forwards it to the component command commander. The component com-
Appendix E 

INTERNATlONAL CoMMJ1TEE 01' THE REo CROSS INIPECTtONS 01' 

DETAINEE AND PRISONER OP WAR FACILmU 

HEADQUARTERS 

UNITED STATES MILITARY ASSISTANCE CoI,ulAND, VIETNAM 

APO San Francisco 96222 

D,REC'MVE 

NUMBER 190--6 

MILITARY POLICE 

8 January 1969 

(MAC)I) 

JeRe INSPECTIONS 0. DETAINEE/ PJuSONU 0. W,.. FACILITIU 

(RCS , MAC)I-62 ) 

1. Purpose. The purpose of this directive is to establish. policies, responsibilities. and procedures in connection with inspections of detainee/ 

Prisoner of War (PW) facilities in the Republic of Vietnam (RVN) by 

the International Committee of the Red eron (IeRe). 

2. Applicability. This directive is applicable to all commands re5ponsible 

for US Forces operated detainee/ PW facilities and Anny advisory groups 

responsible for advising faciliti es at which detainee/ PWs may be temporarily or permanently detained. 

3. Definitions. 

a. Detainees. Definitions applicable to detainees are set forth in Annex 

A, MACV Directive 381-46. 

b. Prisoners of War. Definitions applicable to PW'. are set forth in 

Annex A, MACV Directive 381-46. 

4. Policy. 

a. All personnel detained will be extended the full protection of the 

Geneva Conventions of 12 August 1949. 

b. The Saigon delegation of the ICRe is recognized as the authority 

on the Geneva Conventions and is authorized to inspect all detainee/ PW 

facilities in the RVN. 

c. Violations of the Geneva Conventions are considered serious breaches 

of international law and every effort will be made by commanders and 

advisors to insure full compliance. 

5. Responnbilities. 

a. The ACofS, J-I, MACV, will: 
134 LAW AT WAR 

mand commander will record any additional corrective action taken at his 

level and forward the form, together with the IeRe prepared report, 

to this headquarters, ATTN: MACj15, for transmission to CINCPAC 

with information copies to AMEMB, CINCUSARPAC, OA, jeS, and 

SECSTATE. 

h. RVNAF Facilities. The MACV escort officer will record discrepancies 

noted by the IeRe on Part I of MACV Form 453, and forward the fonn 

to the appropriate eTZ Senior Advisor (SA). eTZ SA will insure that the 

PW camp advisor records corrective action taken, as reported to the advisor 

by his counterpart, in Part II of the MACV Form 453, and forward the 

form to this headquarters, ATTN: MACJI5. The ACofS, J-I, MACV, 

will record any additiona1 corrective action taken, as reported to the SA 

PMG/ RVNAF by the PMG/RVMAF. in Part III of MACV Form 453 

and forward the completed form, together with the JCRC prepared report 

(if available>, to addressees indicated in paragraph 7a. 

c. FWMAF Facilities. The MACV escort officer will record discrepancies noted by the ICRC on Part I of MACV Form 453. Then, using any 

information obtained through follow-cn liaison with the FWMAF headqua£ten concerned, the MACV escort officer will complete Parts II and 

III of the form. The MACV Form 453 will then be forwarded by the 

ACorS, J-l, MACV, together with the ICRC prepared report (if available), 

to addressees indicated in paragraph 7a. 

8. R~/utnces 

a. DA Pamphlet 27-l. 

h. FM 22-10. 

c. MA~V Directive 381-11. 

d. MACV Directive 1 ~3. 

e. MACV Directive 20-4. 

FOR THE COMMANDER: 

CHAllLES A. CoRCORAN 

Major General, USA 

Chief of Staff 
APPENDIX E 135 

Annex A to MACV Directive 190.6 

REPORT Of ICRe VISIT lOAf( Of' VISIT 

, ... , I fKlIiI;t Villttool ,--- J fKilily CO/US_ 

ICIte OotItpl" 

Lhol Dloc .. "" ... IH/Com ..... nts_tooI 

'''' I Typ0t6 "'-. R.nk .. TItle I SlI"'!u .. 

"'lIT II 

To to. -.pltltod by fKlI~ co (lIS fKlI~). CTl SA (RVNM flCllity) Ot '" 15 (FWIoIAf K~it:Yl 

u.t ActIonIlabft 10 cotnct dllCN""ncIH ..ot"" In ,..., I 

'''' I TypIOd N ....... Ihnk .. TItle lSI .... ' .... 

'AlIT III 

To to. -. ... "" '3,Comr;:1II. Comm ....... Cone ....... (US fKlI~) or AClI ("'VNAr Ot fWMM fKIIIty) 

lA! ..selmon.! ..:tioftIIaMn 10 -..n dItc~ flGtod In ,..., I 

'''' I Typed N ....... R.ftk" Title I Sian., .... 
Appendix F 

INSPECTIONS AND INVESTIGATIONS OP WAR CRIMES 

HEADQUARTERS 

UNITED STATES MILITARY ASSISTANCE COMMAND, VIETNAM 

APO San Francisco 96222 

DIRECTIVE 

NUMBER 20-4 I 

INSPECTIONS AND INVESTIO,\TlONS 

WAR CRIMES 

18 May 1968 

(MACJA) 

1. Pu.rpose. To provide unifonn procedures for the collection and perpetuation of evidence relative to war crimes incidents and to designate the 

agencies responsible for the conduct of investigations for alleged or possible 

violations of the Geneva Convention of 12 August 1949 For the Protection 

of War Victims. 

2. Applicability. This direclive is applicable to all alleged or possible war 

crimes violations of the subject Geneva Conventions, inflicted by hostile 

forces upon US military or civilian personnel assigned in Vietnam, or by 

US military personnel upon hostile military or civilan personnel. 

3, Definitions, 

a. War Crime. Every violation of the law of war is a war crime, (Chapter 

8, DA Field Manual 27-10, The Law of Land Warfare, July 1956.) 

b. Grave Breach. A grave breach of the Geneva Conventions is the most 

serious type of war crime. Examples of grave breaches are: wiilrul killing, 

torture or inhuman treatment, including biological experiments, willfully 

causing great suffering or serious injury to body or health, taking of hostages, 

compelling a prisoner of war to serve in the forces of the hostile power. 

c. Other War Crimes. Examples arc: making use of poisoned or other· 

wise forbidden anns or ammunition, treacherous request for quarter, ma1· 

treatment of dead bodies, firing on localities which are undefended and 

without military significance, abuse of or firing on the flag of truce, misuse 

of the Red Cross emblem, use of civilian clothing by troops to conceal their 

military character during battle, poisoning of wells or streams, pillage or 

purposeless destruction, improper use of privileged build.ings for military 

purooses, compelling prisone~ of war to perform prohibited labor, killing 

J This directive supersedes MACV Directive 20·4 (0 ), 27 April 1967. 
APPENDIX F ]37 

spies or other persons who have committed hostile acts without triaJ, compelling civilianl to perlonn prohibited labor, and violations of surrender 

tenns. 

4. Coordination. Investigations of alleged or possible war crimes will be 

coordinated with the Staff Advocate, MACV. 

5. ResponsibilituJ. 

a. It i. the responsibility of all military personnel having knowledge or 

receiving a report of an incident or of an act thought to be a war crime 

to make such incident known to his commanding officer as soon as practicable. Personnel perfonning investigative, intelligence, police, photographic, grave registration, or medical functions, as well as those in contact 

with the enemy, will, in the nonnal coune of their duty, make every effort 

to detect the commission of war crimes and will report the essential facts 

to their commanding officer. Persons discovering war crimes will take all 

reasonable action under the circumsta nces to preserve physical evidence, 

to note identity of witnesses present, and to record (by photograph~ sketch, 

or descriptive notes) the circunutances and surroundings. 

b. Commanders and MACV staff sections receiving reports of pro~ 

able war crimes will, in addition to any other required reports, report the 

facts u soon aJ practicable to the Staff Judge Advocate, MACV, and will 

make pertinent collateral infonnation available to the appointing authority 

and investigating officers. 

c. The Staff Judge Advocate, MACV will: 

(I) Immediately notify the appropriate appointing authority (see paragraph 5d, below) of the receipt of a report of an alleged or po5Sible war 

crime. 

(2 ) Assist and advise the appointed investigating officer, in coordination 

with the Staff Judge Advocate or Legal Officer of the appointing authority. 

(3) Receive and review completed and approved investigations from 

the appointing authority. 

(4) Maintain a file on all war crime investigations. 

(5) Make appropriate recommendations to COMUSMACV concerning 

use of the evidence obtained and disposition of the report of investigation. 

d. Appointing Authority: 

(1) Appoint an investigating officer and, if appropriate, designate a 

qualified criminal investigator as technical assistant. Upon receipt of notification of an alleged or possible war crime concerning a membe r of his 

command, one of the following appointing authorities will, with all dispatch, 

appoint an investigating officer to prelJare and transmit to him a report 

of in~ ti gation . 

(a) Anny. Officers who exercise Ceneral Court-martial jurisdiction (or 

their dwgnees) are appointing authorities for cases involving personnel 

under their Ceneral Court-martial jurisdiction. The ce, US Anny Element, 

USMACV (or his designee) is the appointing authority for cases involving 

US Anny personnel assigned to USMACV and any other person believed 
138 LAW AT WAR 

to be a US serviceman but not sufficiently identified or otherwise provided 

for by another appointing authority. Commanders of brigades (or their 

designees). who have a Judge Advocate assigned to their staff, arc appointing authorities for cases involving personnel of their brigades. 

(b) Air Force. The Commander, 7th Air Force, (or his designee ) is the 

appointing authority in cases involving US Air Force personnel. 

(e ) Navy. Commander, US Naval Forces, Vietnam, (or his designee ) is 

the appointing authority in CaJeS involving US Naval or Marine Corps personnel, except naval or marine penonnel attached to Marine Corps com· 

mands. 

(d ) Marine Corps. The ce, III Marine Amphibious Force (or his 

designee ) is the appointing authority in cases involving US Marine Corps 

personnel and naval personnel attached to :Marine Corps commands. 

(e) Coast Guard. Commander, Coast Guard Squadron # 1 (or his 

designee ) is the appointing authority in case involving US Coast Guard 

personnel. 

(2) If t",{O or more appointing authorities are concerned with the same 

incident, they will agree upon the appointment of one investigating officer, 

with such additional assistants as may be necessary, to make inquiry on 

behalf of all concerned. 

(3) When the completed Report of Investigation (ROI) has been submitted to the appointing authority by the investigating officer, the appoint. 

ing authority will receive, review, and, if appropriate, approve the report. 

Three copies of the ROJ will be transmitted to COMUSMACV, ATTN : 

MAC]A. 

e. The investigating officer, with technical assistance furnished by qualified criminal investigators will: 

( 1) Promptly make inquiry to detennine the facts and circumstances 

surrounding the alleged or apparent war crime, to include the following: 

(a ) Identity, organization. and status of victim. 

(b ) Nature of violation committed. 

(c ) Cause of injury or death and manner in which injury or death 

occurred. 

(d ) Time and place of commission. 

(e) Identity of individuals or organizations suspected of commission 

of the act. 

(f) Names. identification, addresses (or units) of witnesses or suspected 

witnesses. 

(2) Collect all necessary evidence, statements, and exhibits, to include: 

(a ) Medical or autopsy reports. 

(b) Photographic evidence, preferably taken .1t the scene of discovery, 

and properly identified as to time, place, subject, witnesses, and photographer. 

(c l Statements of witnesses of any of the circumstances surrounding the 
APPENDIX F 139 

incident and the discovery of evidence regarding the incident. Whenever 

practicable, statements should be under oath. 

(d ) Military reports, including after-action reports and those from 

intelligence sources, to identify suspected individuals and units. 

(e ) Physical evidence, such aJ weapons, clothing, bullets, shell casings, 

rope, etc., pertinent to the case. 

(3 ) Without delay, prepare and submit his recommendations as to the 

disposition of the investigation report to the appointing authority. 

6. Reports. Report by paragraph 5d, above, is exempt from reports control 

under the provisions of paragraph 390, AR 335-15. 

FOR THE CoMMANDER: 

WALTER T. KERWIN, JR. 

Major General, USA 

Chief of Staff 
Appendix G 

GENEV", CoNV£NTIONS CH£CKSKEET 

(Sent with covering letter in 1967 from U.S. Military Assistance Command, 

Vietnam, Staff Judge Advocate to all judge advocates in the Republic of 

Vietnam. ) 

1. Are the following publications available in adequate quantities: 

a. OA Pamphlet 20-151, "Lectures of the 

Geneva Conventions of 1949." 

b. OA Pamphlet 27-1, "Treaties Governing 

Land Warfare," 1956. 

c. Field Manual 19-40, "Enemy Prisoners of 

War and Civilian Internees," 

d. Field Manual 27-10, "The Law of Land 

Warfare," 1956. 

e. Anny Regulation 633-50, " Prisoners of War 

Administration, Employment and 

Compensation." 

(Thete may be procured through service 

supply channels) 

2. Number and percentage of members of your 

command who have received instruction in the 

Geneva Conventions during the past year. 

No. .%' ___ _ 

3. Number and percentage of members of your 

command who have received instructions in the 

Geneva Conventions.' 

No. .%' ___ _ 

4. How often does your command conduct training 

in the Geneva Conventions? _______ _ 

5. By whom (JA personnel; others: officer, non· 

com, etc.) is such training given? 

1 Should your combat Iiluation make it unduly difficult to obtain thit information 

for your entire command, an estimate bued on lpot checks or other appropriate _. 

piing will .uffice. 
APPENDIX C 

6. Are copies of MACV Di~tives 20-4, 20-5, 

190-3, and 380-11 available to your command? 

(1£ not, they may be obtained from MACAe) 

7. Have these directives been pro~rly implemented 

and all members of your command advised of 

their substance? 

8. Have the MACV PW pocket cards been disseminated to all members of your command? 

9. Have any instructions been promulgated by your 

command on treatment of enemy ~rspnnel at 

time of capture? 

to, Are command procedures adequate to insure 

pro~r treatment of enemy ~rsonnel at time of 

capture? 

11. ls the "interrogating officer" who detennines 

initially whether there is doubt as to the eligi· 

bility of captured ~rsonnel to PW treatment 

pro~rly qualified by training and experience? 

12, No. of cases reviewed pursuant to provisions of 

paragraph 61 (2), page 7, MACV Dir 20-5, 

In how many of these cases did you accord de· 

tained ~rsons PW status? ______ _ 

Refer the issue of status to a tribunal? 

13. No. of cases reviewed punuant to provisions of 

paragraph 61 (3 ), page 7, MACV Dir. 20-5, 

No. of such cases in which you concurred with 

interrogating officer's detennination. 

No, of such cases in which you accorded PW 

status. _____ _ 

14, How many war crimes investigations have been 

undertaken in your command since effective date 

MACV Directive 20-4? _____ _ 

15. Do records of your command reHect the names of 

members of your command who have violated the 

Geneva Conventions and the types of violations 

whieh they are alleged to have committed? 

16. How many of your personnel have been dis. 

ciplined for mistreatment of enemy ~rsonnel? 

141 
142 LAW AT WAR 

17. Indicate types of punishment imposed on offenders. (Use continuation sheet if necessary ). 

Staff Judge Advocate 

Command 

Date 
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by h .. 10., .... ", 1,,_;. . M .......... " 10 , ... pttOOft> .. h ... hoM'. 
Appendix H 

''THE ENEMY I N YOUR HANDS" 

(Reproduction of 3x5 ard of inltruetiom; issued to all troop •. ) 

THE ENfMY IN YOUI H4NDS 

AS" MEMBEII Of THE OS MJUUJlY fORCES. 

you Will COMPlY WITH THE GENEVA 

PRtSOf;rll Of WAR CONVENTIONS Of '94' 

TO WHICH YOOl COUNTRY 4OHERES. UNDO THE~ CONvENTIQIIS , 

YOU CAN AND Will 

DlWM VOl/II. PItl'iONEIl. I~MlDl"TU Y StUCH HIM THOROI..IQtl Y 

IIfO\.lII( HI'" TO II( SllfNT ~ICREGAI( HIM 1110'.1 OIHU PR.ISONERS 

CUARO HIM C"RffUtl Y 

UJ[[ HIM TO THE PUCE OESIGNAHD II't' 

yool COM1M.NOER 

ALWAYS nUl YOU. HISONUt HUMANtly 

ENGliSH 

... " 

loy dow" ...... , ..... Put UfO _ "-'<I. 

I(_ ~"""""""",,._ heOOll 

I .. III .... do Y<>V 

Do _ ,.n. 

W.A ,"". 

To<" R~ 

t ..... loll 

VIOHM.IESE 

().,'" Itl 

B..&.., WAg • ...., 

0... a., It .. 

(lv'II, Itt! cIkt 

Teo kI>6m a... 

£Moo '* ~ lel .... llo 

)(h""'~ 

Itt, w.. I' .. 

,. TI .. <_ •• ...! .ll" oj ..... -'" ," b.1!1. 

~;n N .... tc.t.o.l ~ II,.;, "*l"""'''''ty ........ the b~11t 

....... AN .11 A", .. " ... ""~I .. y Kt;"" ... VIti ...... 

.. iR .101>"""'" I> "'"' ........ Ioy 01 ..... 1, "",,1*1" 
Appendix I 

MUTUAL DEPENSE ASSISTANCE IN INDOCHINA 

AOREEMENT SIONEO AT SAlOON DecEM8ER 23, 1950; ENTEI\I!.D INTO FOIlCE 

DECEMBER 23, 1950 

The Government of the U nited States of America, and the Governments 

of Cambodia, France, Laos and Vietnam: 

- Recognizing the common interest of the free peoples of the world in 

the maintenance of the independence, peace, and sec;urity of nations d evoted 

to the principles of freedom; 

-Considering that the Governments of Cambodia, France, Laos and 

Vietnam are engaged in a cooperative eITort toward these goals as members of the French Union; 

-Cr.Insidering that, in furthe rance of those common principles, the 

Government of the United States of America has enacted Public Law 

329, 81st Congress, which permits the United States of America to furnish 

military assistance to certain other nations dedicated to those principles: 

-Desiring to set forth the understandings which shall govern the 

furnishings of military assistance by the United States of America under 

Public Law 329, 81st Congress, to the forces of the Associated States and 

the French Union in Indochina, 

Have a~ed as follows: 

Article 1 

Any assistance furnished under this agreement will be governed by the 

following basic considerations: 

I. All equipment, material and services, made available by the United 

States of America under the terms of this agreement to the States signatory 

to it, in accordance with their needs, will be furnished under such proviMOJU, and rubject to such temu, conditions and termination provisions of 

Public Law 329, 8151 Congress, as amended, as affect the furnishing o£ such 

assistance, and such other applicable United States of America law as may 

hereafter come into effect. 

2. In accordance with the principles of mutual aid, each Government 

receiving equipment, material, or services from the Government of the 

United States of America under this agreement agrees to facilitate the production, transport, within it! means, and the transfer to the Government of 
146 LAW AT WAR 

the United States of America for such period of time, in Nch quantities and 

upon such tenns and conditions of purchase as may be agreed upon, of raw 

and semi-proccued materials required by the United States of America as 

a result of deficiencies or potential deficiencies in its own resources, and 

which may be available in their territories. 

The conditions governing such transfers will be the object of particular 

agreements and will take into account the needs of these states and the 

normal requirements of the French Union with respect to internal consumption and commercial export of such materials. 

Article II 

The signatory powers, recogn izing that the cff~tiveness of military 

assistance will be enhanced if maximum use is made of existing facilities, 

Have resolved that: 

I. The Government.! of Cambodia, France. Laos and Vietnam shall 

cooperate to assure the efficient reception, distribution and maintenance 

of such equipment and materials as are furnished by the United States of 

America for use in Indochina. 

2. Each Government receiving aid from the United States of America 

shall, unless otherwise agreed to by the Government of the United States 

of America, retain title to all such equipment, material or services so 

transferred. 

3. Each Government receiving aid from the United States of America 

shall also retain full possession and control of the equipment, material or 

services to which they havc such title, taking into account the accords and 

agreements which now exist between Cambodia, France, Laos and Vietnam. 

4. With respect to aid received from the United States of America, each 

State shall designate a member or representative of the High Military Com· 

mittee and authorize such person to receive from the Government of the 

United States of America the title to the materials received. Each State 

shall, as the need exists, provide for such extensions of that authority as 

may be necessary to insure the most efficient reception, distribution and 

maintenance of such equipment and materials as are furnished by the 

United States of America. 

5. For aid received from the United States of America destined exclusively for forces of the French Union in Indochina, the Commander in 

Chief of the French Forces in the Far East or his delegates shall be the 

person authorized to accept title. 

A,/ide III 

Taking into consideration the military conventions concluded between 

France and the Go,remments of Cambodia, Laos, and Vietnam, each 

Government receiving grants of equipment, material or 5t':rvices from the 
APPENDIX I 147 

Government of the United States of America pursuant to this agreement, 

Undertakes: 

1. To use effectively such assistance only within the framework of the 

mutual defense of Indochina. 

2. To take appropriate measures consistent with security to keep the 

public informed of operations under this agrc<:ment. 

3. To take security measures which will be agreed upon with the United 

States of America in each case to prevent the disclosure or compromise of 

classified articles, services, or information received under thiJ agreement. 

4. To take appropriate action to prevent the illegal transportation into, 

out of, and within the area of Indochina, including the territorial waters 

thereof, of any equipment or materials substitutable for, or of similar 

category to, those being supplied by the United States of America under 

this agreement. 

5. To provide local currency for such administrative and operating 

expenses of the Government of the United States of America as may arise 

in Indochina in connection with this agreement, taking into account ability 

to provide such currency. An Annex to this agreement will be agreed be· 

twc<:n the United States of America on one hand the States of Cambodia, 

France, Laos and Vietnam on the other, with a view to making arrangements for the provision of local currency within the limits of an overall 

sum to be fixed by common agreement. 

6. To enter into any necessary arrangements of details with the Govern· 

ment of the United States of America with respect to the patents, the use 

of local facilities, and all other matters relating to operations in connection 

with furnishings and de1ivering of materials in accordance with this agreement. 

7. To consult with the Government of the United States of America, 

from time to time, to establish means for the most practicable technical 

utilization of the assistance furnished pursuant to this agreement. 

Article IV 

To facilitate operations under this agreement, each Government agrees: 

I. To grant, except when otherv.;S(. agreed, duty.free treatment and 

exemption from taxation upon importation, exportation, or movement 

within Indochina, of products, material or equipment furnished by the 

United States in connection wth this agreement. 

2. To reeeive within its territory such personnel of the United States 

of America as may be required for the purposes of this agreement and to 

extend to such personnel facilities freely and fully to carry out their 

assigned responsibilities, including observation of the progress and the technical use made of the assistance granted. Such penonnel will in their 

relations to the Government of the country to which they are assigned, 

operate as part of the diplomatic mission under the direction and control 

of the Chief of such mission of the Government which they are serving. 
148 LAW AT WAR 

Article V 

I. This agreement shall enter into force upon signature. Any party may 

withdraw from this agreement by giving written notice to all other partics 

three months in advance. 

2. The Annexes to this agreement Conn an integral part hereof. 

3. This agreement shall be registered with the Secretary General of the 

United Nations in compliance with the provisions of Artic.1e 102 of the 

Charter of the United Nations. 

In witness thereof the respei:tivc representatives, duly authorized for this 

purpose, have signed the present agreement. 

Done in quintuplicate in the English, Cambodian, French and Viet~ 

namese languages at Saigon on this 23 day of December, 1950. 

All tcxU will be authentic, but in case of divergence, the English and 

French shall prevail. 

Huu 

V.SAI 

DoNALD R. HEATH 

(Seal) 

Annex A 

VORABONO 

G. DE U'ITR.E 

In implementation of paragraph 5 of Aniele III of the agreement for 

Mutual Defense Assistance in Indochina, the Governments of Cambodia, 

France, Laos and Vietnam will deposit piasters at such times as requested 

in accounts designated by the diplomatic missiolll of the United States at 

Phnom Penh, Vientiane. and Saigon, not to exceed in total 6,142,230$ 

piasten (or the use of these missions on behalf of the Government of the 

United States of America for administrative expenses in the States of Cambodia, Laos and Vietnam in connection with carrying out that agreement 

for the period ending June 30, 1951. 

The piuten will be furnished by each of the Governments of Cambodia, 

France, Laos and Vietnam in accordance with percentages agreed upon 

among the four Governments. taking into consideration the amount of military aid received by each Government. This Annex will be renewed with 

appropriate modifications for the fiscal year ending June 30, 1952 and 

similarly thereafter before the end of each current fiscal year, for the duration of the agreement. 

Anntx B 

In recognition of the fact that personnel who are nationaJs of one country, including personnel temporarily assigned, will in their relations with the 

Government of the country to whieh they are assigned, operate as part of 

the Diplomatic Mission of the Government of their country under the direction and control of the Chief of that Mission, it is understood, in connection 
APPENDIX I 149 

with Article IV, paragraph 2, of the Mutual Defense Assistance Agreement, 

that the status of such personnel, considered as part of the Diplomatic Mission of such other Government, will be the same as the status of personnel of 

corresponding rank of that Diplomatic Mission who are nationals of that 

country. 

The personnel will be divided into 3 categories: 

(a) Upon appropriate notification of the other, full diplomatic status 

will be granted to the senior military member and the senior Army, Navy 

and Air Force officer assigned thereto, and to their resptttive immediate 

deputies. 

(b) The second category of personnel will enjoy privileges and immuni· 

ties conferred by international custom, as recognized by each Government, 

to certain categories of personnel of the Diplomatic Mission of the other, 

such as the immunity from civil and criminal jurisdiction of the host country, immunity of official papers from search and seizure, right of free egress, 

exemption from customs duties or similar taxes or restrictions in respect of 

personally owned property imported into the host country by such personnel 

for their personal use and consumption, without prejudice to the existing 

regulations on foreign exchange, exemption from internal taxation by the 

host country upon $alaries of such personnel. Privileges and courtesies incident to diplomatic status such as diplomatic automobile license plates, inclusion on the "Diplomatic List", and social courtesies may be waived by both 

Governments for this category of personnel. 

(c) The third category of personnel will receive the same status as the 

clerical personnel of the Diplomatic Mission. 

1t is understood among the five Governments that the number of personnel in the three categories above will be kept as low as possible. 

Annex C 

All the countries which are signatory to the agreement for Mutual 

Defense Assistance in Indochina agree that the benefits of any modification 

or ameliorations of this agreement in favor of anyone of the contracting 

parties will be extended to all the countries party to the agreement. 

Ch I, Directive Number 27-1, HQ MACV 30 September 1965 

SOP FOR LrnOATlON ACTIONS UNOER THE PENTAl.ATERAL ACREEMENT. 

I. General. 

A. Background. 

During 1949 France approved self-government for Vietnam within the 

French Union. On 23 December 1950 the newly created self-governing 

nation entered into a multi-lateral mutual defense assistance agreement with 

the US, France, Cambodia, and Laos. This agreement is known as the 

Pentalateral Agreement. The agreement is still in effect and is 50 regarded 

by both the US and the Republic of Vietnam. 
150 LAW AT WAR 

B. Grant of Immunity from Jurisdiction. 

Under Article 4 and Annex B of the Agreement, immunity from crim· 

inal and civil jurisdiction is granted to US military penonnel in Vietnam 

along with certain categories of civiliaru (Para 10, MACV Directive 27-1 ). 

C. Responsibility of us Personn,l. 

This grant of immunity, however, imposes upon US personnel the 

responsibility, under appropriate US irutructions, of complying with Vietnamese law and law enforcement authorities insofar at it is coruutent with 

US law and US military requiremenu to do JO. 

II. Proudures. 

A. Apprehension 0/ US MiJittJry Pusonnelo, Viltnamese Authoritiu. 

1. When an American serviceman 15 apprehended by Vietnamese 

authorities, he will comply and cooperate with them (Para II, MACV 

Directive 27-1). 

2. IJ the serviceman is requested to accompany the Vietnamese law 

enforcement authorities to their booking station, he will comply with their 

requesu. The serviceman wiU inform US military police or his unit CO 

as lOOn as possible. 

3. If the serviceman has a military obligation requiring him to proceed 

elsewhere, he will attempt to persuade the law enforcement official. to 

allow him to proceed with his miuion, after fully identifying himself. 

If the situation permits, he will attempt to telephone the US military 

police for assistance. If the serviceman is required by the law enforcement 

officials to remain at the scene or accompany the policeman, he will do 

10 if he is unable to persuade the police to allow him to proceed. In no 

case will he resist the Vietnamese police by wing force. If he is allowed 

to leave, or call, he will notify his CO or the US MP. as lOOn as practi. 

cable. In situations such as this, the serviceman must use mature judgment, 

weighing the importance of his mission as compared with creating an 

incident which might be detrimental to US-Vietnamese relations. 

Annex A to MACV Directive 27-1 , Dated 16 April 1965 
Appendix J 

LECAL S'£RVICES IN VIETNAM 

HEAOQUARTEItS 

UNITED STATES MILITARY ASSISTANCE COMMAND, VIETNAM 

APO San Francisco 96222 

Dut£CT1VE 

NUMBE.R 27-6 I 

LEGAL SERVICES 

14 September 1968 

(MACJA) 

LEOAL SERVICES AND LECAL ORLIGATlONS IN VIETNAM 

1. Purpou:. The information set forth below is to acquaint personnel with 

some of the new obligations assumed and benefit! derived from serving 

in Vietnam. 

2. Jurisdiction. 

a. US Law. Both the Uniform Code of Military Justice and the Code 

of Conduct for members of the US Armed Forces govern the conduct 

of all US military personnel in Vietnam. Furthermore, the United States 

is a signatory of the Geneva Conventions of 1949, and all US military 

personnel are expected to conduct themselves in a manner in keeping with 

the highest traditions of US fighting men when handling prisoners of war. 

All incoming personnel are issued a wallet sized card which outlines the 

duties and responsibilities of US forces with respect to PW's. 

b. Vietnamese Law and the Pentalateral Agreement. 

( 1) Under the terms of an international agreement between the US 

and Vietnam, military personnel and certain civiliaru have been granted 

immunity from the criminal and civil jurisdiction of the Vietnamese 

courts. Therefore, an American serviceman cannot be tried in Vietnamese 

courts unless the US Government waives his immunity from jurisdiction. 

(2) Notwitlutanding the immunity from jurisdiction, US military 

personnel and DOD civilians must obey the Vietnamese law unless it is 

inconsutent with their military requirement:>. Compliance with Vietnamese 

laws is particularly important in the areas of traffic, curfew, and currency 

regulations. US personnel, if apprehended by Vietnamese authorities, will 

comply and cooperate, and will notify the military police or their unit commander as soon as possible. Personnel receiving a VN traffic citation, a 

summons to a VN court, or other legal VN process, will report the fact 

I This directive supenede. MACJA Lener, 30 June 1967, lubjeet: Legal Serviea 

and Legal Obligations in Vielnam. 
152 LAW AT WAR 

to their unit commander. Personnel involved in an accident or incident, 

are to reveal their name and organization to the investigating National 

Policeman or Joint Patrol and furnish similar identification to injured 

parties seeking it. Obtain similar information concerning the other party. 

If asked to remain on the scene, or if asked to accompany a National 

Policeman to a booking station, personnel will comply unless military 

obligation requires otherwise. However, personnel will in no case resist 

by force the National Policeman who is in the perfonnance of his duty. 

Personnel so restrained will inform either their unit commander, Provost 

Manhal or Staff Judge: Advocate as soon as possible. 

(3) Before: a serviceman becomes a plaintiff in a Vietnamese court 

consultation must be had with a Judge Advocate or legal officer, and the 

SJA, USMACV will be notified. US military personnel may sue in local 

courts if and when permwion is granted by US authority. Under Viet· 

namese law, if the suit is filed, the defendant may file a counter claim. 

That claim can be either civil or criminal, as VN couru try aU aspc:c.ts 

of a case: in the one trial, at the same time. Filing a suit waives the service· 

man's immunity. Therefore, the serviceman would be: subject to the jurisdiction of the court and could be liable for any counter claims. The 

.en-iceman, if he should be found guilty of a crime relative to the case, 

such as perjury, may be punished for it by the Vietnamese. 

3. Bwiness Actiuities. MACV personnel are prohibited from engaging 

in any business or commercial enterprises for profit conducted in Vietnam. 

This prohibition does nClt extend to business transactions for the purchase 

or .ale of property located outside Vietnam. 

4. US Personnel. To avoid legal and disciplinary problems. the following 

directives must be read and adhered to: MACV Directive 64~1, subject: 

Customs Control; MACV Directive 58-3, subject: Privately.Owned motor 

vehicles; MACV Directive 21~5, subject: Custody and Control of Wea· 

pons; MACV Directive 632-2, subject: Personal Conduct and Activities 

of US Forces Personnel; and MACV Directive 37-6, subject: Regulation 

of Currency and Operation of Military Banking Facilities. 

5. ugal Assistance. Military personnel and DOD civilian employttl are 

entitled to legal assistance at any military legal office in Vietnam. Legal 

assistance officers will advise, wist and counsel on personal legal problems. 

They cannot represent individuals in court, or in matten pertaining to a 

profit.making activity, or in a claim against the United States. Although 

appointments are not necessary, they are encouraged to insure prompt 

.ervice. 

6. Claims. 

a. Claimanu should contact the Claims Officer of their respc:c.tive 

.ervices for infonnation on the processing of claims for damage to house· 

hold goods or loss of personal property. 

b. Extreme care should be taken in securing personal property. & a 

general rule, claims for loss of money, jewelry, cameras, and other items 
APPENDIX J 153 

of relatively high value will not be approved unless they were .5ei:ured 

within a locked container in a locked room and there is evidence of a 

forc:.ible entry. In connection with items of extraordinary value which are 

not oommerc:.ially insured, they should not be retained in this command 

unless an individual is prepared to personally absorb their loss in the event 

of hOltile action or theft. It is recommended that an inventory of personal 

valuables be maintained. 

7. Federal and State Income Taxation. 

a . Vietnam and its adjacent waters have been designated as a "Combat Zone." 

b. The time for filing returns, declarations of estimated taxes, and 

the payment of any tax or estimated tax is automatically postponed without 

interest or penalty for the period of service in the combat zone (or while 

continuously hospitalized outside the United States as a result of an injury 

received or disease contracted while serving in the combat zone) and 

for the next 180 days thereafter. This relief is available to the spouse of 

a serviceman only if a joint return is filed. 

c. Enlisted personnel and warrant officers in a "Combat Zone" receive 

all of their military pay and allowances including reenlistment bonus, tax 

exempt. Commissioned officers receive up to $500.00 of their monthly 

taxable pay exempt while in a combat zone. Any period of service in a 

oombat zone during a month is sufficient to qualify for the tax exemption 

for the entire month. For example, personnel arriving in Vietnam on 31 

May would be entitled to the tax exemption for the entire month of May. 

d. No withholding of federal income tax from wages of any member 

of the Armed Forces is required during the month of which any part of 

hi, service was in a combat zone. Commissioned officers desiring to anticipate the tax on their pay above the $500.00 exemption must ll'ltl3te 

action to accomplish the necessary withholding; otherwise, no tax will be 

withheld. 

e. All personnel are urged to consult Annex A on State In('.ome Taxations for a general outline of tax regulations pertaining especially to persons 

serving in the Vietnam oombat zone. 

8. Reports. This directive requires no report. 

9. References. 

a. MACV Directive 37-6. 

b. MACV Directive 58-3. 

c. MACV Directive 210-5. 

d. MACV Directive 632-2. 

e. MACV Directive 643-1. 

FOR THE CoMMANDER: 

CHARLES A. CoRCORAN 

Major General, USA 

Chief of Staff 
Appendix K 

U,S. ARMY DISCIPLINARY ACTIONS, REpUBLIC OF VIf:TNAM, 196-S-1972" 

Ollnll'lIl 

,ourls-martial 

YIO, t.i,ld 

1965.... . ..... 25 

1966 ............ \76 

1967 ... _, ....... 283 

1968 ............ 302 

1969 ............ 377 

1910 ............ 300 

1971. ........... 350 

1972 ......... __ .113 

Slll/cial 

&oll,b-mG,tial 

I,i,d 

488 

2723 

m<> 

6798 

7314 

4964 

3678 

774 

Summa". 

,ou,ts·mllrtilll 

t" , d 

'01 

2187 

2090 

2119 

2231 

5" 

434 

187 

Nonjudicial 

punishm,nt 

IIdminist,r,d 

(Artie/II 15) , 

, 

46,392 

59,178 

66,702 

64,53. 

41,237 

3,283 

"Figures do not include taJU which were investigated but never tried, or cases that were dispoKd of through adminutrative action. Data from which the figures were 

compiled weN! obtained from the files of the U.S. Army Judiciary. It Figures not available. 
Index 

Ahranu, General C~ighton W.: .53 

Accident claims: .54,82 

Administration: 4, .. 3-44, .58-60, 64, 67, 

101 

Administrative code: 28 

Adminbmuive Court : 33 

AdviKn : 3-4, 11-1 2, 40-60, 87-89, 

114-15, 117 

Advisory Division, USMACV: 11-12 

Agenll, enemy: 49, 63, 66, 76 

Agrarian couru: 29,33 

As~emenl on Endins the War and 

Relloring Peace in Vietnam: 6, 49, 

6. 

Asreemenu, internalional : 6,8, 10, 12, 

49,53,60,82,8.5,87-97, 108, 113 

Airborne operations: 5.5 

Aircraft accidenu: 54,82 

Amnesty program. Set Chieu Hoi program. 

Amphibious Force, TI' : 4,6, 68 

An Khe:.55 

Annam: 19-20,28 

AnnamiteCordillera : 16 

Appellate Court of Pension.: 33 

Appellate court.: 31-35 

Anny, Department of the: 99 

Arm)' LAwy~r: 52 

Asia Foundation: 27 

Atrocitiel. Set War crimC'S and criminals.. 

AUltralian forces: 63,68, 98, 116 

Averette, William : 109-10 

Bac, Vuong Van : 47 

Ban Me Thuol: 54-.$5 

BanSkok: .55 

Bankins facilities: 92 

Baa Dai: 21 

Base exchanges. Set Pou exchanges. 

Ben Hai River: 70 

Bich, Colonel Nsuyen Mong: 3.5, 46-47, 

49, 55, 63. Su lI/fO Dircc.lorate of 

Milila ry JUJtice. 

Bien Hw.: 67-68 

Black market activities: 6, 10,91-94,98, 

102-06, 108-09, III, 113 

Brinks Hotel: 80 

Buddhistl: 16 

Bunker, £11.",·orlh D.: .53,94, 104, 108. 

Su 1I1JO Unitrd Slatel Embassy. 

Bureau of Narcotia and Danseroul 

Drugl, U.S.: 107 

Businessmen, legal lIalUI: 92 

Buu, Huynh Due: 47 

Cam Ranh Bay: 9.5 

Cambodia: 10, oil , 62, 70, 87-38 

Can Tho : 12,35,50,58,67 

Cao D:li: 16 

Capital Military Region: 67 

Catholia: 16 

Cavalry Division (Ainnobile), 1st: 55 

Central Highlands: 16,50 

Central Purchasing Agency, Vietnam: 10 

Central Security Committee, Republic of 

Vietnam: 2.5 

Chi Hoa pri$on : 6.5 

Chieu Hoi program: 66, 71 

China., inftuence on Republic of Viet· 

namlaw: 17-18 

Chinese population: 16 

Cholon district: 16,84,106 

Churchill, Winston: 112 

Civic action programl: 84-85 

Ci.oil rode: 28 

Civil Law and Military Affain Divilion, 

USMACV: 10 

Civil $Crvice, Republic of Vietnam: 43-

Ch'ilian " Irregula r Defense Groups: 54, 

Civilians " 

military jurisdiction over: 34-35, 108-

III 

refugees: 16- 17,.55, 114 

Republic of Vietnam employees: 55, 

96 

U.S. employees: 10, 88, 91-92, 96, 

98, 104, 106 
156 LAW AT WAR 

Claims, administering: 6,44,54,19-86, 

90, 11 2-13 

Clubs, tax sta tuI: 92,96 

Cochin China: 17, ]9-20,28 

Code of Conduct: 1:1.91 

Code of Military Justice, Repuhlic of 

Vietnam : 28,35-36, 43,53 

Collaboraton: 64 

Command and control: 3,6,71 

Command and General Staff School: 54 

Commander in Chid, Pacific. S6t: United 

States Pacinc Command. 

Commerce code: 28, 33 

ComminariCI, tax status: 92 

Con Son prison: 56, 65, 68 

Confinement procedures and facilitiel: 

25, .'i6, 64, 99,115. Su also Prisons; 

Sentences, 

Confucianism, inHuence on RVN law : 

17-18 

Constitutions, Republic of Vietnam : 21 -

23,26,34 

Construction program,: 57-59, 65, 67-

68 

Continental Anny Command: 7+-75 

COll1raClors. civilian : ]0,88, 92, 96-98, 

104, ]06, 108, 11 0 

Corps Tactical 7..()nCI 

I : 49-50, 57,67-68 

II : 50,54-55, 67-68 

III : 50, 67-68 

IV : 50,67 

Coundl of Ministers: 23 

Council of State: 29,33-34 

Counterinsurgency, role of law in: 13-

15,24,38,45,47, 114 

Cour de C,uSQt iofl: 28-29,31,34 

Couru, Republic of Vietnam 

d,·il, 11,13,20, 22,25,28-34,6+-65 

military: 31, :1+-36, 54 

Courts of First Instance: 31-33 

Ct"urtsofPeace: 3 1-33,36 

C"uru.martial, U.S.: 6, 98-103, 105, 

107-06 

Criminal code and offcnses: 28-29, 33, 

:16, 98-99, I 15 

Criminal and Disciplinary Law Division, 

USMACV: 8-10 

Criminal 1n"estigation Division, U.S. 

Army: 77,102 

Criminal Irwelligalon, Republic of Viet· 

nam: 46 

Criminal law, offenses against: 28-29, 

33,36,98-99, 115 

Crou -(!xamination procedures: 21 

Currency control and violalions: 10,91-

93,98,102,104-06, 108- 11 ,1 13 

Customs duties: 10, 92-95 

Da Nang : 12, 35, 49-50, 57-58, 60, 

67-68, 71,9+-95,106 

Dalal : 52,54 

Decree, law by: 21-27, 42, l iS 

Defectors. See Chieu Hoi program. 

Defense, Department of: 83, 88,92,96, 

107 

DefelUe counsel : 31 

Defoliation program: 85-86 

Demobilization: Ste Mobiliu.tion and 

demobilization. 

Deputy Chief of Staff for Military Oper· 

ationl: 13 

Desertions and deserters : 45, 5:1, 55- 56, 

Diem" , Ngo Dinh : 21-2:l 

Dinh, MajorTran Hua: 52 

Director of Customs: 94 

Dir«torate of Finance and Audit: 85-86 

Directorale of Military Justice: 8, I I , 3+-

35, 40, H, 50-52, 56, 59-60, 117. 

Su 1211D Dich, Col. Nguyen Mong. 

Directorate of Psychological Warfare: 85 

Discipline, state of: 10, 44 

Documents 

authentication code: 28 

indexing: 42-43, 5 1,80-82, ! 15 

translating and interpreling : 42, 51, 

80-81, 11 5 

Drug Abuse Tuk Force: 107 

Drugs, contml a nd illicit use : 6, 98, 

10:!, 106-08 

Duc My National Training Center: 55 

Durbin, Colonel Paul J.: 3,41,51 

Duties, cunom!. Su Customs duties. 

Eastern Construction Company: 54 

Education programs: 41-53,60,67,69, 

74-76, 90-91 , J13, 117 

Elcction law: 43 

Elysee AgrcemenlJ, 1949: 21 

Ethnic groups: 16 

[vidence, rule 0(,24-25 

[xecu!ions: 63 

Exccuth-e orders: 26-27 
INDEX 157 

Federal Bar Auociation: ~3 ,t."I1"" ti,liclo, Republic of Vietnam 

eoncept: 36 

Forti,n Claims Act : 82--83, 114 

Four.Party Joint Military Commission : 

France " 

influence on Republic of Vietnam 

law: U, 19-22,28-29 

military ... istance to : 3, 10,87 

Free: World forcn : 12, 38, H, 61, 63, 

67-68,78, 82, 8~, 90, 97-99, 116 

Fuller, Colonel Lawrence : 41 

Gendarmerie: 45-47 

Geneva. Conventions, 1949: 12, 25, 40, 

61_76,78,99, 102, 113 

Geosraphy: 16 

Gia Lonl Code: 18-20 

Gonard, Samuel A.: 76 

Government &«encies, Republic of Viet· 

nam: 44-45 

Grants, Itudy: 51-52 

Cuerrilla warfare, enemy: 66 

Haheu corpu.: 25 

Handicrdts projects: 58 

Hanoi : 19 

Harriman, W. Averell: 76 

Heroin, control and illicit we : 106 

Hi,hway I: 16 

HoaHao: 16 

Hoi Chanh (ramer): 71 

Hon, Due Code: 18,20 

Hue: 12-13,19,28,51,37,50,57 

Hue, Ly Binh : 47 

Importl, duties on. S" Custom. duties. 

Indexi"! services: 42-43,51 , 80--81, lIS 

Infantry Brilades 

III, 10Ist Airborne Division: 55 

3d, 25th Infantry Division : 55 

Infantry Divi.ion, 23d: 54 

Inflation,meof: 103-05 

Information and edUCAtion. S" Educa· 

lion programl. 

InlptctcwGeneral, U.S. Army: 102 

Internal Revenue Service : lOS 

Internati onal AHai .. Division, 

USMAC\o : 12 

International Committee of the Red 

Cross: 65-66,68-72,76,78,116 

International law: 62-63, 78. See IIIJO 

Geneva Conventions. 

International Law Division, USMACV : 

10,12-14 

Interpreter services: 80--81, lIS 

l"e8ular Practices Committee: 93-94, 

104 

Japan : 101 

Johnson, U. Alexil: 47 

Joint Ceneral Staff, Republic of Viet· 

nam: 11 , 75,93, 102 

Joint Military Committtt: 67 

Joint U.S. Military Advisory Croup, 

Thailand: 55 

Jud8e Advocate General, U .S. Army : 

n,83 

Judxe Advocate General', School, U.S. 

Army: 43,52 

bu/" AtifiOCII" L,,"I S'Tfliu: 52 

Judse advocates. S" IIlIo Staff Judse 

Advocate, USMACV. 

in advisory role : 3-4, 11-13, 40-60, 

87-89,11+-15,117 

auisnments and minions: 6, 15, 40, 

100,112,116 

field service: 54-56, 11+-15 

problems confrontin,: 112-13 

JudStl: 28,34,37 

Judicial police: 45-47 

Jury tria11: 21 

JUltice, Department of, Republic of Viet. 

nam: 22 

JUIlites of Ihe peace : 36 

JUVf:nile courts: 29, 33 

Khanh, Major General Nsuyen : 22 

Khanh Hoa military pri-an: 55 

Khanh HoI. Province : !is 

Korea. Su Republic of Korea forces. 

Korean War experience: 43 

Ky, Air Vice Manhal N,uyen Cao: 22-

23, 103 

Laboc courts: 28-29,33 

Labo~p~ner: 69, 73 

Lansuage barrier: !i3, 101 

LaOl: 10,41, 62,87--88 

Law. Su Code of Military Justice, Re· 

public of Vietnam , International 

law ; Uniform Code of Mililllr)' 

JUllicc. 
158 LAW AT WAR 

Law Center, Republic of Vietnam : 28 

Law Day : 1,~3 

Law dictionary: 42-43 

Law of land warfart:: 43 

Law libraries: 43, ~2, 116 

Law of the Sea: 12 

Law schools, Republic of Vietnam : II, 

13,37 

Law Society of Frcc Vietnam: 41-49, 

11 5 

Law Study Committcc, Republic of Viet. 

nam: 21-28 

Laws of War: 12 

Lawyers, civilian, .hortase of: 13, 31 

Le Dynasty: 18 

Leases. Su Real euate, lealtS. 

Legal services 

efficacy of U.S. Iystem: 112 

need for and development of: 3, 11 4 

Republic of Vietnam system: 15-39, 

84-85 

USMACV orwanization : 6-14, 114, 

liS 

Lessons learned: 114 

Liaison procedures: 4,6,8, 10-1 2, 15-

16, 40-60, 7~, 102, 114-17 

Lines of communication : 50 

Lodge, Henry Cabot: 117. S ••• IJO 

United States Embaay. 

LosinicalSYllem'and opcratiolU: s-4 

Long Binh: 59, 100 

Loyalties, . hiflll in : 18 

Magistrates: 21,33 

Manchu DynUly Code: 18 

Marihuana, IUC and control: 106-07 

Martial law: 26 

McCain, Lieutenant Colonel Malcolm 

L.: 48 

Medical services: 69 

Mekong Delta : 16, 50, 93 

Mercham Itamen, legalltatuI: 92 

Messes, lax exemption: 92, 96 

Mien, Major Tran Lai: ~2 

Michigan State Univcnity study: 21 

Mili tary Academy, Republic of Vietnam : 

52,54 

Military Assillancc Advisory Group, 

Vietnam: 3 

Military a.uillance program: 3, 10, 87, 

99 

Military Claims Act: 83 

Military Community Action Program: 44 

Military Community Atrairs Council : 

..... 5 

Military Judicial Police : 46 

Military justice, appliC1tion of: 6, 98-

103, 105, 101-08 

Military Justice Corps, Republic or Viet· 

nam: 52,56 

Military law, Republic of Vietnam. S" 

Code of Military Juui(.e, Republic 

of Vietnam. 

Military Law R'lIi,w: .52 

Military payment certificates: 5~, 104-

06 

Military police, Republic of Vietnam : 

42,46,.53, 67 

Military Policc Corp': 56,59,67, 109 

Military Police School, U.S.: 60 

Military Security Service, Republic of 

Vietnam: 25 

Minh, Major ~neral Duong Van : 22 

Ministry of Economy and Finance : 93-

.. 

Ministry of the Interior: 25, 27, 43, 68, 

85 

Ministry of Justice : 11 , 13, 2.5, 27-29, 

34,41 ,43 

Ministry of National Defense : 35, 42, 

52,59,86 

Minorily groups: 16 

Mobiliution and demobiliulion : 11,51 

Money orders. rt:uriclions on: 105 

Morphine, control and iIIidt usc: 106 

Monlagnards: 16,54,14 

Mutual Defcnse Assistance Act, 1949: 

3,87 

My Lai incident: 14, 71, 102, 113-14 

Napol~nic Code: 21 

Narcotics. S .. Drugs, control and illicit 

usc. 

Narcotics Bure!!u, Republic of Vietnam : 

107 

Nalional A~mbly: 23, 26 

Nationall.cadenhip Council: 22 

National Policc: 13,25, 46, 53-54, 85, 

101. St. auo Gendarmerie. 

Nalionalism, growth DC: 17 

New Zealand force.: 63,98 

Newsmen: 92. S., also Press I1:ports. 

Nha Trang: 12,35,54-55,58 

Nha T n.ng Province prison: 64 
INDEX 159 

North Atlantic Treaty Organization: 89 

North Vietnam: 39,55,61-62,68,70-

12 

North Vietnamese Anny: 63,66,70, 74, 

76, 89. S" also Viet Congo 

Norlon, 8risadier General John: 100 

NotaTiu: 28 

Okinawa: 83,98-99 

Opinions prepared by Staff Judge AdYGcate, USMACV: 4243 

Opium, control and illicit use : 106-07 

Orientation tou",: 51. S" /llso Education Pl'O!ramJ; Liaison procedures. 

Pacification program: 13, 53, 55 

Pentalateral Agreement: 10,53,87-97, 

108,113 

Phan Rang: 55 

Philippines forces: 54,68,70,98 

Phu Quoc Prisoner of }Vat Camp: 67 

Phu Yen Prollince: 55 

Pilrerage. S44 Theft lOISa. 

Pleiku : 12,55,67-68,80 

Political criSCI and disturbances: 17,22-

23,90 

Political priloners: 63-65. Su also PriJonen of war, enemy. 

Politicaillfl.lcture, Republic of Vietnam: 

17 

Popular Forees: 25, 54-55, 62 

Population 

control of: 79, 11 5 

density and composition: 16 

law, attitude toward: 13, 15,17, 20-

21, 24, 28,45, 79, 85-86 

Porll, construction and operation : 92-

93, 103 

Post exchanlles: 10, 92-94, 96, 103-04 

Postal violations: III 

Press repom: 38-39,49,68 

Prisoner. of war, enemy: 12,25,49,55, 

61_72,113-14, 116. Su also Political prisoners. 

Prisone", of war, U.S.: 62-63,70-72 

PrUon~, military and ch'il: 51,53-60, 

6<-65 

Process service: 28 

Propaganda. Su Psychological operationl, enemy. 

Properly cxpropriation code: 28 

Prosecutors: 28, 31 

Prugh, Colonel George 5.: 13, 44 

Psychological operation., enemy: 39,55, 

64-65 

Qui Nhon: 54,67,80 

Railway net: 16 

Ralliers. Su Chieu Hoi program. 

Rankin, Colonel John M., USAF: 47 

Real «tate 

dilpoNolof: 10 

Icafa: 6, 10 

Red Croll. See International Committee 

of the Red CroP. 

"Red Hau": 46 

RefullteS. S4' Ciyilianl, refugees. 

Regional Assistance Command: 50 

Regional Forees: 25,54-55,62 

Regular Military Courts, Republic of 

Vietnam: 35 

Reider, Lieutenant Richard E., U.S. 

Navy: 47 

ReligioUi seCII: 16 

Rent courts: 26-29,33 

Repatrialion program: 55, 66-67, 70-

12 

Republic of Korea forces: 63, 68, 82, 

98,116 

Republic of Vietnam: 61-63,65,68,70-

72, 78, 80, 84-86, 89-97, 106-08, 

113, 115 

Republic of Vietnam anned forces: 12, 

44,75,99,117 

Republic of Vietnam Anny: 55, 6S-67, 

Resources, " control of: 42,45,53, 115 

Review procedurel: 36, n 

Revolutionary Military Council: 22 

Road nel: 16 

Saboteurs. Su Agenll, enemy. 

Saigon: 12-13, 16-17, 19, 2B, 31, 35, 

37,10,49,51,53,55,60, 80, 83-

B4,93, 101, 103, 106 

Saigon military prison: 58-.59 

Saillon Uni\'ersity: 50-51 

Search and sei~ure laws: 45 

Secretary of the Army. Su Army, De· 

partment of the. 

5«~lary of Defenle. See Defenle, Department of. 

Security measures: 24-26, 34, 42, )3, 

64,101,103 
\60 LAW AT WAR 

Srntenccl: 31,:15 

Seventh Air Force; 4,6 

Sherwood, Capt.in John T.; 5+-55 

Smu/{glin~; 111 

Soldier, U.S., b1::havior of: 113 

Society, Vietnamese 

development of: 16-11 

Tolr. of law in developing: :J6-39 

Solatium payments: iJ4 

Song Mao National Regional Force 

Training Center: 55 

South China Sea: 16 

South Vietnam. See Republic of Vietnam. 

Soviet Vllion: 61 

Special Forces troo!»: 54,80 

Staff Judge Advocate, USMACV 

advisory role: 40-51 

first auigned: 3 

opinions prepared: 42-43 

organiution, mission, functions: 4-14 

prison advisory program: 56-60 

Stale, Departmental: 41,51,109 

StalUs of forcet ag~menl: 88-90 

Storage facilities: 54, 103 

Sub\'cnive activitiel: 42. S" lI/fO Psy_ 

chological operationl, enemy. 

Strategic air support: 63 

Super.·ision. Su Command and control. 

Supreme COUrl, Republic of Vietnam: 

27-29,34,36,52 

Tam Hiep prison: 64-65, 68 

Tan Son Nhut: 106 

T'ang Dynuty Code: 18 

Tariffs. Su Cu.uoms dutiea. 

Taxes: 6, 10,92,94-96 

Tay Ninh: 68 

Taylor, General Maxwell D.: 116. SIC 

allO United Slates Embauy. 

Terrain features: 16 

Terrorills: 49. See IIlso War crimes and 

criminals. 

Tel offensive: 50, 51,114 

Thailand and Thai forces : 41, 55, 63, 

96 

Theft loues: 93-94, 103 

Thiep, M,",. Nguyen Phuong : 47 

Thieu, Major General Nguyen Van: 22, 

26 

Thu Due pri$On: 6!i 

Tonkin: 16,19 

Tourisu, legaluatu.: 92 

Training programs: Su Education progranu. 

Translation xrviees: 115 

Tran.portation: 54, 101, 103 

Treaties. SIC Agreemenu, international. 

Trial pra«dures: 29-31 

Tribunals, Republie of Vietnam. Su 

Courts, Republic of Vietnam. 

Troop uniu 

build.up and withdrawals: 3, 6, 74, 

88-90,98 

disciplinary infractions: 98-99 

legal,tatus: 87-97 

types engaged: 62 

Ttlan, Vu Tiem: 47 

Tulane University : 52 

Tuy Hoa: 55, 60 

Uniform Code of Military JUltice: 8, 

73-74, 76-77, 90-91, 102, 110-16 

United Kingdom: 89 

United Nations: 61 

U nited States Agency for International 

Development: 10,21,94,96, 107, 

117 

United Statel AiT Force: 93, 98-100, 

II. 

United Statel Army, Ryukyu Islands: 83 

United Silltes Army, Vietnam : 4-6, 83, 

93,99-100. Su 11I10 Westmoreland, 

General William C. 

United Statlll Army Support Command, 

Vietnam: 99-]00 

United States Army, Vietnam-Mililary 

Anistance Command, Vietnam, 

Support Command: 4-6 

United States Court of Military Appeal.: 110 

United Statel Embassy: 4, 10, . ' , .5, 86, 

94,96, 104, 106- 10, 116-17. Su 

allo Bunker, ElIsYo-oTth D.; Lodge, 

Henry Cabot j Taylor, General MaxweliD. 

United States Marine Corps: 3-4,6,49, 

68,89,99-100 

United States Military Allistance Advi$Ory Group, Indochina: 41 

United States Military >usistance Com_ 

mand, Vietnam: 45, 49,77,84, A6, 

93,95, 100, 102, 106-10, 113, 116. 
INDEX 161 

United State. Military Au illance Command, Vietnam--Continued 

Set also Westmoreland, General 

William C. 

aetivation: 3,88 

command and Itaff organiu.tion : 

3-6 

legal service. organization: 6-14, 

114, 116 

mission: 3-4 

Staff Judge Advocate. Su Staff 

Judge Advocate, USMACV. 

unity of command by : 99 

United States Minion Council: 3 

United Stales Naval AdvilOry Group, 

Vietnam: 42 

United States Naval Forces, Vietnam: 'I, 

6,42,93,98-100, 116 

United States Overseas Miuion : 10,45-

46,54-55,93 

United States Pacilic Command: 4,99 

United Slaiu Swpum, Cowrl Reporler: 

" 

Unity of command, by USMACV: 99 

Viet Cong: 13, 24-25, 39, 41--42, 49, 

62-72, 74, 76, 80, 89. S" GUO 

North Vietnamese Anny. 

Vietnam Regional Exchange: 10 

Vietnamese-American Association: 47, 

52, 115 

War crimes and criminals: 12, 49, 64, 

66, 72-,., 76-78, \02, 113, 115 

Water supply: 57-58 

Weaver, Colonel Robert K.: 59--60 

Westerman, Colonel George F.: -41 , 51 

Welt moreland, Ceneral William C.: 65, 

75, 79-100, 103, 106-07. Set "uo 

United Statel Anny, Vietnam; 

United Statel Military Assistance 

Command, Vietnam. 

Witneuts, interviewing: 100-02 

World Wa r II experience : 89 

Zorthian, Barry : 47 

() u .s. GOVEI'INMEN'T PAINTING OfFICE: 1991 2tl1-.Bnl2OCXlll 

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SO fJ T H CHI N II 

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