146 WAR CRIMES IN VIETNAM

least temporarily uninhabitable. Thereafter the entire area is declared a "free-fire" zone of operations, wherein people or things can be fired upon at will and discretion, and without prior warning, or clearance from the Vietnamese provincial authorities.

Now there is enough question about the legality of the evacuation procedures alone to give pause, for Article 49 of the Geneva Convention prohibits "individual or mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of the Occupying power." To be sure it is doubtful, as we have seen, whether this article applies to relations between the United States and the South Vietnamese civilian population. Likewise, the evacuations are generally conducted with the approval of the Saigon Government. And finally, Article 49 goes on to authorize "total or partial evacuation of a given area if the security of the population or imperative military reasons so demand."

Nevertheless, serious questions remain, for it is not at all clear whether the clause just quoted was intended to justify population transfers of this type, in which devastation of the evacuated area is the prime objective. "Persons thus evacuated," the article elsewhere provides, "shall be transferred back to their homes as soon as hostilities in the area in question have ceased," but in South Vietnam generally the homes will have been destroyed. Furthermore, it is required that: "The Occupying Power undertaking such transfers or evacuations shall ensure, to the greatest practicable extent, that proper accommodation is provided to receive the protected

WAR CRIMES IN VIETNAM 147

persons, that the removals are effected in satisfactory conditions of hygiene, health, safety and nutrition, and that members of the same family are not separated." It is common knowledge that the record of fulfillment of our obligations to the refugees we have, in military parlance, "generated," has been shockingly inadequate. Samuel P. Huntington estimated that one and a half million refugees have passed through the camps, where conditions "have at times been horrendous."¹⁴ Jonathan Schell observed the devastation of a "free-fire" zone of some 200 square kilometers where 17,000 people were living, by means of an operation which "was not supposed to generate any new refugees" because no camps were available.¹⁵

If the legality of the population transfer program remains a doubtful proposition, that can hardly be said of the "free firing" and the air strikes carried out in the zone so created. "In the mountains, just about anything that moves is considered to be V.C.," an Air Force major told Jonathan Schell: "We've cleared most of the people out of there, and anything that's left has got to be V.C." And so helicopters and small observation planes go "squirrel-hunting" for individuals observed in the devastated areas, using machine-guns from the helicopters, and calling in air strikes—"sniping with bombs." This is using the aircraft for the same purposes that the infantryman uses his gun, and the pilot ought to be held to the same standards of distinguishing combatants from noncombatants. Realizing this, the pilots claim extraordinary powers of divination, professing ability to "spot the V.C."

148 WAR CRIMES IN VIETNAM

by the fact that he runs away, or "walks real proud,
with a kind of bounce in his gait, like a soldier, in-
stead of just shuffling along, like the farmers do,"
or occupies a "hootch" among the trees rather than
in the open. Perhaps the pilots are more often right
than wrong, but this certainly is not the method for
dealing with civilians suspected of hostile activity
which is required by the laws of war, and is un-
lawful for the same reasons that the Son My kill-
ings were unlawful.

Still another aspect of our conduct in Vietnam
that raises serious questions under the laws of
war is our handling of prisoners. Until recently this
matter appeared to be one of vicarious responsi-
bility for mistreatment by the South Vietnamese of
prisoners turned over to them by the American
forces. In the spring of 1970, however, the court-
martial proceedings against Lieut. James B. Duffy
disclosed distressing indications that American prac-
tice with regard to prisoners may be degenerating.

This is, to be sure, an area where the enemy has
given great provocation. Both North Vietnam and
the NLF have repudiated the Geneva Conventions.
Neither has complied with the requirements of cus-
tomary law with respect to notifications and cor-
respondence. There have been many reports of
brutal treatment of American captives, and authen-
ticated reports in 1966 and 1967 that the North
Vietnamese paraded American pilots through the
streets of Hanoi, in violation of the Geneva injunc-
tion against subjecting prisoners to "insults and
public curiosity." Much worse, in 1965 the NLF

WAR CRIMES IN VIETNAM 149

announced the execution of three American prisoners, in reprisal for South Vietnamese executions of several Vietcong "terrorists." Reprisals against prisoners of war were prohibited by the 1929 Geneva Convention, and are forbidden today under both the 1949 Convention and the American Army's Law of Land Warfare.¹⁶

These open violations on the part of the enemy may well have inclined the American authorities to turn a blind eye to the numerous reports of South Vietnamese torture and general mistreatment of prisoners that have persisted throughout the course of the war. To be sure, the United States is not legally responsible for what South Vietnam does with its own prisoners, but the matter is of importance because the American forces do not retain permanent custody of the prisoners they take, but send them to rear-area camps maintained by the South Vietnamese.

Article 12 of the Geneva Convention authorizes such transfers, but only if the transferring power "has satisfied itself of the willingness and ability" of the receiving power to observe the requirements of the Convention. If, after transfer, the receiving power does not do so, then the original captor power must "take effective steps to correct the situation or shall request the return of the prisoners." Under the Geneva Protection of Civilians Convention, the same provisions apply to civilian prisoners.

In view of the South Vietnamese record of prisoner mistreatment, it might well be doubted whether the circumstances of transfer of our prisoners to their hands was in compliance with these re-

150 WAR CRIMES IN VIETNAM

quirements. It is true that in 1966 the American commander-in-chief in Vietnam categorically declared that the transferred prisoners were being treated in accordance with the Convention.¹⁷

Confidence in the accuracy of this statement was badly shaken in the summer of 1970, as the result of a visit to Con Son prison by two Congressmen who were in South Vietnam as members of a special committee of the House of Representatives. Atrocious conditions, including the use of windowless pits called "tiger cages," were reported by the Congressmen, but it was not made clear whether any of the prisoners had previously been in American custody. However, a simultaneous report from an American Friends Service doctor, who had observed evidences of extensive torture of the inmates of a South Vietnamese interrogation center in Quang Ngai (the capital of the province in which Son My is situated), was even more disturbing, as it indicated that some of the victims had been sent there by the Americans, and that an American "intelligence adviser" was attached to the center and familiar with the circumstances.¹⁸

Whatever problems of treaty interpretation may complicate the issue of American responsibility for South Vietnamese treatment of prisoners are wholly lacking in connection with the criminal implications of the trial of Lieutenant Duffy, charged before an Army court-martial in Long Binh with the murder of an unarmed Vietnamese civilian prisoner in September, 1969. The gist of the charge was that Duffy had ordered or allowed one of his sergeants to shoot the prisoner, who had been found hiding in a

WAR CRIMES IN VIETNAM 151

"hoetchi," and kept tied to a stake during the night before the shooting was done.

Duffy's defense was that according to his understanding of Army policy, the "body count" was the measure of military success, and that in killing the Vietnamese prisoner he was simply following that policy. In support of this defense, four other lieutenants from the same battalion testified that their instructions were to take no prisoners in combat, and that their superiors laid primary stress on the body count.

This was strong medicine indeed. In the heat of battle, killing enemy soldiers seeking to surrender is not unusual, as we have seen. But a policy of refusing to take prisoners—a denial of quarter, in the old phrase—has long been condemned by the customary laws of war, as it is in The Hague Convention of 1907 and in the military regulations of all modern armies. Furthermore, the Duffy case was not a combat killing, as the prisoner was unarmed and safely secured.

In response to the testimony of the four lieutenants, the Pentagon at once denied that Army practice tolerated killing prisoners, and labeled such conduct as "murder." But the military court hearing the case, after convicting Duffy of murder, revoked the verdict, convicted him of involuntary manslaughter, and sentenced him to six months' confinement. No reasons for the decision were given, but the change of front, coupled with the undisputed testimony of the four lieutenants, strongly suggests that the judges found some substance in the defense.¹⁹

152 WAR CRIMES IN VIETNAM

Such are some of the more disturbing features of our operations in Vietnam, and such is the setting of the Son My killings, which threw the spotlight of publicity into these dark corners: forced resettlement of millions of rural families with utterly inadequate provision for their health and human dignity; complicity in the torture of prisoners by our wards, the South Vietnamese; enthusiasm for body counts overriding the laws of war on the taking of prisoners; devastation of large areas of the country in order to expose the insurgents; outlawry of every visible human being in the free-fire zones; slaughter of the villagers of Son My even to the infants-in-arms.

Are these things a terrible, mad aberration, or
can cause and responsibility be traced? In part, no
doubt, they are due to the features of the Vietnam
conflict which have made the laws of war unusually
difficult of application. The enemy does not respect
those laws, the terrain lends itself to clandestine
operations in which women and children frequently
participate, the hostile and the friendly do not label
themselves as such, and individuals of the yellow
race are hard for our soldiers to identify. As in the
Philippines 65 years ago, our troops are thousands
of miles from home in uncomfortable, dangerous
and unfamiliar surroundings. No one not utterly
blind to the realities can fail to acknowledge and
make allowance for the difficulties and uncertainties
they face in distinguishing inoffensive noncombatants from hostile partisans.

These unlovely circumstances were not the crea-

WAR CRIMES IN VIETNAM 153

tion of Lieut. James Duffy, who encouraged his sergeant to shoot the helpless prisoner, or of the company and platoon commanders who led their men into Son My, or of Marine Pvt. Michael Schwarz, sentenced to life imprisonment by a military court in Danang, for participating in the killing of 12 Vietnamese villagers.²⁰ Are they alone to be held accountable?

# 7 Crime and Punishment

OPINION OR "REACTION" samplings taken shortly after the first news of the Son My incidents revealed that nearly two-thirds of those interviewed denied feeling any shock. Some observers found this lack of public indignation or shame, as well as some of the comments recorded by the samplers, more upsetting than the killings themselves.¹

It is neither surprising nor particularly disturbing, however, that many of those interviewed refused to believe that anything untoward had occurred. "I can't believe an American serviceman would purposely shoot any civilian," declared Alabama's George Wallace, "any atrocities in this war were caused by the Communists." Others described the reports as "a prefabricated story by a bunch of losers," or labeled them incredible because "it's

CRIME AND PUNISHMENT 155

contrary to everything I've learned about America." These outright rejections of undisputed information are a familiar defense mechanism, activated in order to ward off the shock which would accompany acceptance.

There was also a widespread disposition to discount the Son My stories on the ground that "incidents such as this are bound to happen in a war." So, too, are murders and robberies "bound to happen" in our streets, and they are likely to happen much more often if we cease to regard them as reprehensible. In fact Son My was unusual, both in its scale and the candor with which the operation was carried on, with Army photographers on the scene and commanders in helicopters circling overhead. Those who resorted to this "sloughing-off" justification are, nonetheless, correct in assuming that unjustifiable killings of prisoners and civilians on a smaller scale are bound to and indeed do happen in a war, and what they overlook is that in the United States Army, when detected they have generally not gone unpunished. During the Second World War many American soldiers were court-martIALled and severely punished for killing or assaulting civilians in violation of local law or the laws of war. The fact that we are now fighting in Asia instead of Europe is hardly a worthy basis for suspending their application.

Nevertheless, there is one respect in which the public reaction, insofar as those interviewed were slow to denounce the troops who did the shooting at Son My, is sound. The thought is rarely articulated, and yet may well be lurking in the back of

156 CRIME AND PUNISHMENT

the mind, that if there is criminal guilt in this epi-
sode, it does not lie most heavily on the shoulders
of those who, at least up to now, are being brought
to trial. There may also be grounds for doubt that
Army court-martial proceedings at Fort McPherson,
Fort Benning, or some other Army post are the
most suitable forum in which to test the issues that
Son My raises. These questions, taken in reverse
order, are the substance of this chapter.

In the long wake of the Son My disclosures,
about a dozen soldiers—a company and a platoon
commander, noncoms and privates—faced criminal
charges for their parts in the incident. Defense
lawyers made motions and brought a number of
legal actions, in Army channels and in the Fed-
eral courts, to delay or prevent the court-martial
proceedings. The situation was further complicated
because a number of the soldiers involved at Son
My had been discharged from service before the
Army took official cognizance of the killings, and
there was a question whether these men might be
brought to trial at all, as the Supreme Court has
held that ex-servicemen cannot be court-martialed
for offenses committed while in service.²

One point that was much pressed by defense coun-
sel and others was the extraordinary amount and in-
tensity of the publicity that followed the Son My
disclosures, and its possibly prejudicial effect on the
trial proceedings. This, of course, is a general prob-
lem in the administration of justice which has been
the subject of wide concern in recent years, and
especially since the Warren Commission's comments

CRIME AND PUNISHMENT 157

on the conduct of police and press at the time of
President Kennedy's assassination. Under the rubric
of "fair trial and free press," the problem has stimu-
lated a flood of books and articles, and I confess
having myself contributed to the glut.³ Bar and press
associations have waged a war of words over the
proper balance between the needs of justice and
what the journalists call the public's "right to know."
The Supreme Court underlined the gravity of the
matter in 1966, by overturning the murder convic-
tion of Dr. Samuel H. Sheppard, on the ground that
his notorious trial in 1954 had been unfair "because
of the trial judge's failure to protect Sheppard suf-
ficiently from the massive, pervasive and prejudicial
publicity that attended his prosecution."⁴

There is no gainsaying the seriousness of this
problem in the case of the Son My defendants, for
the television and newspaper publicity was indeed
glaring and often accusatory. Most of it would not
have been tolerated under the much more rigorous
standards observed in Britain, where pretrial pub-
licity can be and often is the basis for criminal con-
tempt penalties against the offending news organs.

But it has never been, and should not now be, the
rule that publicity furnishes the basis for not pro-
ceeding against an accused individual at all—in
effect, for granting him immunity from prosecution
because of the publicity that has surrounded his
case. After all, Jack Ruby was tried for murder after
millions of television viewers had watched him
pump a bullet into Lee Oswald's stomach, and
while this would have made it very difficult for

158 CRIME AND PUNISHMENT

Ruby to deny that he fired the fatal shot, no one seriously suggested that he must therefore escape justice entirely. There is simply no way that sensational crimes can be kept out of the press, especially when most of the publicity precedes the apprehension or accusation of those eventually charged.

A much more doubtful question is whether an Army general court-martial is an appropriate judicial forum for the trial of the Son My cases. On the face of things the charges are simple enough—that Lieutenant X or Corporal Y killed or assaulted one or more human beings—but, as has been seen, the simplicity is deceptive, and searching issues of fact and law start from the cases at every turn.

If matters follow the customary course, the courts-martial will be "convened" by the commanding general of the post or military area within which the trial is to be held. This means that the commander will designate the members of the court, who function essentially like a jury, except that they not only determine guilt or innocence, but also fix the sentence if the defendant is found guilty. The members will be subordinates of the commander, will probably not be lawyers, and, since none of those as yet charged with responsibility for Son My is of high rank, the members of the court need not be. Presiding over the proceedings will be a military judge, responsible not to the commander but to the Army Judge Advocate General in Washington. The judge will wear a black robe, so that his rank will not be visible though everyone will know what it is, and he will instruct the court on such

CRIME AND PUNISHMENT 159

legal issues as may arise. The court's judgment is subject to review as of right in a Court of Military Review responsible to the Judge Advocate General, and may then be reviewed by the civilian Court of Military Appeals, if that body thinks the case important enough to warrant its attention.

Consider the issues that are likely to confront a court-martial in the Son My cases, bearing in mind that the defendants are represented by counsel, several of whom are not only able but also very prominent in legal circles. In its strictest form, as we have seen, "superior orders" as a defense depends on whether or not the defendant knew the order to be unlawful. Of course, it will first have to be determined what orders were in fact given to the troops entering Son My, but let us assume that the soldiers could reasonably have thought that they were being told or encouraged to kill the inhabitants. What did "unlawful" mean to them? According to their own accounts, two or three of the soldiers *did* regard the goings-on as unlawful and took no part. But what standard of "lawfulness" were they and the others instructed or trained to apply? What sort of indoctrination had they had not only from manuals or training sessions, but from observation of what was going on around them in Vietnam?

These questions lead to another very basic one: What, for present purposes, is an "order"? Everyone who has done military service knows that there are occasions when the rule-book does not fit the circumstances; no one is expected to follow it, and may even get into serious trouble if he does. The

160 CRIME AND PUNISHMENT

departure from the rules may be a matter of un-
spoken but accepted practice and it would, for ex-
ample, be quite unnecessary for an officer to tell his
men in so many words to take no prisoners if, by
prior experience and the temper of the moment,
the men sense that this is how things are going to
be today.

The ultimate question of “guilt” in the trials of the Son My troops is how far what they did de-parted from general American military practice in Vietnam as they had witnessed it. This may not be germane to the question of legality under the Geneva Conventions or the Articles of War. But the defense of superior orders has its true base not in technicality but in equity, and is properly invoked by the low-ranking soldier in mitigation of punish-ment for conduct, even though unlawful, that is not too far removed from the behavior authorized or encouraged by his superiors in the force in which he serves.

Now, the searching feature of the situation is that
this defense cannot be put forward or tested with-
out, in substance, putting American military prac-
tice in Vietnam on trial. Who, other than the de-
fendants and their counsel, is prepared to do that?
One may well wonder whether either a judge ad-
vocate officer sitting as military judge, or a "jury"
of officers appointed by a post commandant, is
likely to have much enthusiasm for such a proceed-
ing, the evidentiary ramifications and politico-mili-
tary implications of which are painfully obvious.

*A defendant who is an enlisted man is entitled to demand that en-listed men be included in the court, but the demand is rarely made in practice because the commanders are inclined to appoint discipline-minded top sergeants.*

CRIME AND PUNISHMENT 161

The shortcomings of court-martial procedure in cases of this type were sharply revealed in the case of Lieut. James Duffy, to which I have already alluded. For Duffy put forth, in miniature, the same sort of defense that may be expected, in gross, in the Son My courts-martial. He did not claim that his superior officer had ordered him to kill the Vietnamese prisoner. He and his supporting witnesses testified rather that their commanders laid emphasis on the desirability of a "high body count"; that one of their superiors had been "angry" on a prior occasion when prisoners were taken; that the practice had developed of not taking prisoners in order to increase the body count.

Was this defense factually credible? The court-martial gave no meaningful answer. The military judge instructed the court that the rules of land warfare applied to the war in Vietnam, and that the question was whether Duffy thought he was obeying an order "that a man of ordinary sense and understanding would know to be illegal." The court thereupon convicted Duffy of premeditated murder, but on being informed that this crime carries a mandatory life sentence, revoked the verdict and convicted him of involuntary manslaughter. The president of the court, Col. Robert W. Shelton, was reported to have made some reference to "the ramifications to the Army" of Duffy's defense. According to the account in The New York Times:

> Several military lawyers attending the court-martial as spectators said privately that a full acquittal of Lieutenant Duffy would have been damaging to the Army. The Army, they said,

162 CRIME AND PUNISHMENT

already was under heavy pressure because of
the publicity about the alleged Son My massa-
cre and other suspected war crimes.

"But the court didn't want to make Duffy
suffer that badly to get the Army off the hook,"
said one young law officer. "To a lot of us it
looks like another example of the M.G.R.—the
mere gook rule—being applied," he asserted.

He explained that the expression had been
adopted facetiously by some Army legal officers
who believed that military courts were lenient
to Americans who killed Vietnamese civilians,
because the Vietnamese were regarded as some-
how second-class human beings or "mere
gooks."⁵

What is one to make of all this? "Involuntary
manslaughter" denotes an unintentional negligent
killing, and is a singularly inappropriate label for
the conduct on which Duffy's conviction was based.
To reverse the famous Gilbertian line, the crime
was made to fit the punishment.

If ever a case cried out for an explanatory opin-
ion, it is this one, but opinions are not part of court-
martial practice. If the court had thought Duffy's
defense to be fabricated, it is hard to see why the
murder conviction was revoked, since the willful
killing of an unarmed, helpless prisoner abundantly
supports it. If there was in fact no such body count
practice as Duffy and his witnesses described, could
Duffy nevertheless have believed that it existed?
That is unlikely, and the inference seems inescap-
able that the members of the court believed the

CRIME AND PUNISHMENT 163

body count testimony, at least in part, and gave it
dominative effect in mitigation. But who was respon-
sible for the body count practice, and how wide-
spread is it?

This last is the question that no ordinary court-martial will want to answer, and one over which many in high authority may wish to draw a veil. And since it is also the question that most deeply affects the integrity of the Army, it is the one that most needs answering. An ordinary court-martial is not a body of sufficient stature or independence to grapple with such far-ranging and ominous matters. It may wish to convict so that the Army will not "look bad," and cloak its actual reasons in silence. It is too easily swayed by what Colonel Shelton called "ramifications to the Army," and unable to articulate the legal or moral significance of what it does.

Both in fairness to the defendants and in response
to the public need, accordingly, there is much to be
said for trying the Son My cases before a special
military commission, to which able civilian judges
and lawyers, outside the military chain of command,
might be appointed. As has been seen, the defense
of superior orders does not eliminate criminal re-
sponsibility but rather shifts it upward, and that is
the direction in which an ordinary court-martial
will be least anxious to look.

The Duffy case was not the first in which the de-
fense was based on the assertion that war crimes in
Vietnam are not isolated atrocities, but are a mani-
festation of command policy. In 1967, Dr. Howard

164 CRIME AND PUNISHMENT

B. Levy, then a captain in the Army medical service, was court-martialed on charges that included disobedience to orders in that he refused to give medical training to "aidmen" of the Special Forces, better known as "Green Berets." At his trial, Levy justified his refusal on the ground that American troops in Vietnam were committing war crimes, and that he therefore should not train troops about to be sent there. Surprisingly, the military judge allowed him to offer evidence in support of his contention, but on short notice his lawyers were unable to satisfy the judge that there was a criminal "pattern of practice" in Vietnam. In any event, the argument was fraught with difficulties; nothing decided at Nuremberg or elsewhere suggests that a soldier is entitled to disobey an intrinsically legal order at Fort Jackson because other soldiers, halfway round the world, are given illegal orders. Such a theory would equally justify the cook in refusing to feed the aidmen.

But Dr. Levy had another argument, which was not sharply articulated until later—that the order to train the aidmen was itself illegal and in violation of medical ethics. According to the evidence he submitted to the court, Green Beret aidmen engaged in combat. They were "soldiers first and aidmen second." Furthermore, it was their purpose to use medicine as a political lever, and Green Beret publicity described the "use of medicine as a weapon."

Under the laws of war, doctors, nurses and medical corpsmen are military personnel, but they are noncombatants, like chaplains. They are expected

CRIME AND PUNISHMENT 165

to treat enemy wounded, carry special medical identity cards and are entitled to wear or display the Red Cross and be immune from deliberate enemy attack. The Geneva conventions and the Army rules of land warfare draw a clear separation between combat troops and noncombat medical personnel, and condemn misuse of medical noncombat status or of the Red Cross emblem.

Accordingly, there was at least some basis for argument that Dr. Levy was being unlawfully ordained to train the aidmen in unlawful activities. Furthermore, the dispensation of medicines by unqualified persons, or on a politically selective basis or as a bribe, raises serious questions of medical ethics as well as bare legality.

Nevertheless, Levy's contention failed, and he served a prison term at Leavenworth. The case is important for present purposes because of the military judge's ruling that evidence in support of criminal command practice was to be admitted—a ruling that was sure to be cited in support of comparable offers of proof in the Son My proceedings. It is an ironic touch that Dr. Levy submitted the evidence to justify disobedience to orders, whereas the Son My defendants would offer it to establish that they were obeying orders.*

While the Army legal services were interrogating, clearing, and charging the soldiers involved at Son

* In June, 1970, Daniel A. Switkes, a captain in the Army medical service, brought suit in the New York Federal court asking that the Army be enjoined from sending him to Indochina, basing his case in part on the contention that he was "entitled not to be forced to become an accomplice to war crimes."

166 CRIME AND PUNISHMENT

My, the incident was under investigation by two
other bodies. One of these is a special subcommittee
of the House Armed Services Committee, officially
entitled the "My Lai Incident Subcommittee," com-
posed of four Congressmen and chaired by F. Ed-
ward Hébert of Louisiana. The other was an inquiry
initiated by the Secretary of the Army and the Army
Chief of Staff, and conducted by Lieut. Gen. Wil-
liam R. Peers, into the reasons why high-level review
of the Son My killings had been so long delayed.

The Hébert subcommittee issued its report on
July 14, 1970, in which it declared that what hap-
pened at Son My "was so wrong and so foreign to
the normal character and action of our military
forces as to immediately raise a question as to the
legal sanity at the time of those men involved."
More significant were the subcommittee's conclu-
sions that the "My Lai matter was covered up within
the Americal Division and by the district and prov-
ince advisory teams," and that the Army had been
most uncooperative: "The manner in which most of
the Americal Division officers, in both command
and staff capacities, testified before the subcom-
mittee suggests an extreme reluctance on their
part to discuss the allegation and its justification
with any real specificity." An angry Chairman
Hébert declared that "the committee was hampered
by the Department of the Army in every conceiv-
able way."

General Peers submitted his report on March 14,
1970, but only portions of it have been made public,
for the stated and apparently sufficient reason that

CRIME AND PUNISHMENT 167

release of the restricted parts might “prejudice the
rights of defendants in current and potential crimi-
nal proceedings.”⁷ He concluded “that there were
serious deficiencies in the actions taken by officials
in the American Division, the 11th Brigade, and
Task Force Barker, after the incident at Son My,” in
that those officials did not “take appropriate action
to investigate or report.” On this basis he recom-
mended that charges of “dereliction of duty and
failure to obey regulations,” and in some cases of
“false swearing,” be brought against 14 officers,
ranging in rank from captain to major general.

The matter was then transferred to the jurisdic-
tion of Lieut. Gen. Mathew O. Seaman, commander
of the First Army at Fort Meade in Maryland, who
shortly announced dismissal, for lack of evidence,
of the charges against seven of the officers.⑨ The
seven remaining under charges included the com-
manders, at the time of Son My, of the American
Division and the 11th Brigade, to which Task Force
Barker was subordinated.

Why was the Son My incident “covered up” by
the Army? The published portions of the Peers re-
port do not reach that question. What has been
released is, however, of great interest in that it de-
scribes the history and training of the units and
headquarters involved at Son My, and mentions
and quotes from a number of the tactical and other
directives that are supposed to govern the conduct
of military operations in Vietnam.

⑨ One of the officers cleared by General Seaman had invoked the privilege against self-incrimination while testifying before the Hébert subcommittee.

168 CRIME AND PUNISHMENT

On their face, as regards the laws of war, the directives are virtually impeccable. United States forces observe the Geneva conventions, and all military personnel are to be adequately indoctrinated in their provisions. All troops arriving in Vietnam are to receive "information cards," covering treatment of "The Enemy in Your Hands," and stressing "humanitarian treatment and respect for the Vietnamese people." The "Rules of Engagement" issued by the American commander in Vietnam, then Gen. William Westmoreland, instructed the troops to "use your fire power with care and discrimination, particularly in populated areas." Another directive stipulated that fire power should be so used as to avoid "incidents involving friendly forces, noncombatants, and damage to civilian property." Directly pertinent to Son My was the directive on minimization of civilian casualties, which called for protection of the inhabitant "whether at any one time he lives in a VC or GVN [Government of Vietnam] controlled hamlet," since whether it is the one or the other may well depend "to a large extent upon factors and forces beyond his control." The instructions issued by the headquarters of the 11th Brigade were generally in line with these directives.

But of course the question remains whether the picture painted by these directives bears any resemblance to the face of war in Vietnam, and on this score, once again, the Peers report as published is silent. Of what use is an hour or two of lectures on the Geneva Conventions if the soldier sent into combat sees them flouted on every side? How does the admonition to the Air Force square with the

CRIME AND PUNISHMENT 169

observations of Jonathan Schell on the way in which tactical air power is actually used, or with the Marine "ultimatum" that he quotes? How "real" do the instructions to the ground troops appear in the light of the lieutenants' testimony at the Duffy trial, of the "mere gook" rule described by the Army lawyers, or of the Army major's remark after the destruction of Ben Tre, with heavy loss of civilian life: "It was necessary to destroy the town to save it"?⁸

Despite the careful wording of the orders and the optimistic releases from the Pentagon about "pacification," virtually all observers report death, destruction and troop attitudes that indicate that the restraint called for by the orders is not exercised. Shortly after the Son My disclosures, four sergeants in Vietnam wrote a letter expressing hearty approval:⁹ "You know this is a VC village, they are the enemy, they are a part of the enemy's war apparatus. Our job is to destroy the enemy, so kill them . . . I want to come home alive, if I must kill old men, women or children to make myself a little safer, I'll do it without hesitation." One may indeed sympathize with the desire to "come home alive," but if that aim now requires the slaughter of all the Vietnamese who might be sympathetic to the Vietcong, then all our talk of "pacification," to say nothing of the Hague Conventions, is the sheerest hypocrisy, and we had better acknowledge at once that we are prepared to do what we hanged and imprisoned Japanese and German generals for doing.

The letter of the four sergeants, of course, does not embody Army policy, but it is indicative of

170 CRIME AND PUNISHMENT

troop attitudes that the Army has
velop and, alas, in many cases to
udes themselves are a natural p
roundings and nature of the war
infiltrate and dominate the vill
on the rural population for both
cealment, and many of the village
them, whether out of fear or fav
strikes and "zippo raids" the vill
son than before to like America
soon turns to hate, as Richard Ham
pellingly explained:

Pretty soon you get to hate all these people. You get to fear them, too. They're all out for your ass one way or another, out to take you for everything you've got. You don't know which ones are your enemies and which ones are your friends. So you begin to think that they're all your enemies. And that all of them are something not quite human, some kind of lower order of creature. You give them names to depersonalize them, to categorize them as you've become convinced they ought to be categorized. They become dinks and slopes and slants and gooks, and you begin to say, and believe, "The only good dink is a dead dink." You echo the comments of your buddies that, "One million of them ain't worth one of us. We should blow up all those slant-eyed bastards."¹⁰

Other witnesses tell much the same story: retired Marine Colonels James A. Donovan and William

VC strategy - civili

170 CRIME AND PUNISHMENT

troop attitudes that the Army has
velop and, alas, in many cases to
udes themselves are a natural p
roundings and nature of the war.
infiltrate and dominate the vill
on the rural population for both
cealment, and many of the village
them, whether out of fear or fav
strikes and "zippo raids" the vill
son than before to like America
soon turns to hate, as Richard Hamner has co
pellingly explained:

170 CRIME AND PUNISHMENT

troop attitudes that the Army has allowed to develop and, alas, in many cases to prevail. The attitudes themselves are a natural product of the surroundings and nature of the war. The Vietcong do infiltrate and dominate the villages, and depend on the rural population for both support and concealment, and many of the villagers cooperate with them, whether out of fear or favor. After a few air strikes and "zippo raids" the villagers have less reason than before to like Americans, and so distrust soon turns to hate, as Richard Hammer has so compellingly explained:

> Pretty soon you get to hate all these people. You get to fear them, too. They're all out for your ass one way or another, out to take you for everything you've got. You don't know which ones are your enemies and which ones are your friends. So you begin to think that they're all your enemies. And that all of them are something not quite human, some kind of lower order of creature. You give them names to depersonalize them, to categorize them as you've become convinced they ought to be categorized. They become dinks and slopes and slants and gooks, and you begin to say, and believe, "The only good dink is a dead dink." You echo the comments of your buddies that, "One million of them ain't worth one of us. We should blow up all those slant-eyed bastards."¹⁰

CRIME AND PUNISHMENT 171

R. Corson; Dr. Robert Jay Lifton of Yale; Dr. Gordon Livingston, a graduate of West Point and Johns Hopkins who served as a major in Vietnam. "No one has any feelings for the Vietnamese," a Texas private told Jonathan Schell. "The trouble is no one sees the Vietnamese as people. They're not people. Therefore it doesn't matter what you do to them." These attitudes are often aggravated by atrocious conduct of the Vietcong; Son My pales into numerical insignificance beside the massacre of thousands in Hue during the Tet offensive, when the Vietcong also overran Quang Ngai and raced through the hospital shooting doctors, nurses and bed-ridden patients. "One tends not to want to be too compassionate in dealing with an enemy like that," a soldier told William Beecher of The New York Times.¹¹

If these observers are not to be trusted, there remains the record of what has happened. Perhaps the Department of Defense has accurate totals of South Vietnamese civilians killed, maimed and made homeless by the war, but probably much of this misery has remained untabulated and is known only to the victims. Early in 1968, the late Senator Robert Kennedy stated that our population transfers, village destruction, and defoliation had created two million refugees, in a country of sixteen million people. A year later Professor Gabriel Kolko of Buffalo put the figure at 3,153,000, apparently based on evidence given in hearings conducted by the Senate Judiciary Committee.¹² The American Friends Service Committee estimates that some 150,000 civilians have been killed annually by com-

172

bat of 26,000 reported killed during 1967 in action, some of these at the expense of the Americans. It is certain that we are responsible for the greater part of the civilian casualties.¹³

Whether these figures are double or half the actuality is not of much legal or moral significance. As Colonel Donovan reminds us,¹⁴ those "who talk about the massacre of South Vietnamese that may happen at some future date if our troops leave the battlefield are apparently oblivious to the fact that a massacre of the Vietnamese people has been going on for five years, and much of the bloodshed has resulted from U.S. fire power."

The Army leadership can hardly have been blind to the probable consequences to civilians of a massive employment of American troops in Vietnam to engage in counterinsurgent operations. Indeed, General Peers called attention in his report to the dangers to noncombatants from "frequent employment of massive fire power" and from "the intermingling of the nonuniformed foe and the populace," and declared that: "Early in the conflict, these factors and many others associated with this unique war caused great concern at the highest levels for the protection of noncombatants and the minimization of casualties to those persons not directly involved." But how did this concern manifest itself, other than in the bland language of the various directives and "rules of engagement"?

172

bat op
26,000
1967 in
of these
parity
Americ
reported
during
some
dis-
sides, and
certainty
that we are responsible for the greater part of the
civilian casualties.¹³

Whether these figures are double or half the ac-
tuality is not of much legal or moral significance. As
Colonel Donovan reminds us,¹⁴ those "who talk
about the massacre of South Vietnamese that may
happen at some future date if our troops leave the
battlefield are apparently oblivious to the fact that
a massacre of the Vietnamese people has been
going on for five years, and much of the bloodshed
has resulted from U.S. fire power."

172 CRIME AND PUNISHMENT

bat operations. The Saigon Government reported 26,000 civilians killed and 74,000 wounded during 1967 in the regions it controlled. To be sure, some of these were killed by the Vietcong, but the disparity of fire power as between the two sides, and American monopoly in the air, make it a certainty that we are responsible for the greater part of the civilian casualties.¹³

CRIME AND PUNISHMENT 173

We may pass until later the question whether heavy fire power should have been used at all. Assuming that decision to have been made, there is no gainsaying the difficulties that the American command faced in achieving a "minimization" of civilian casualties and maintaining a humane and considerate attitude, among the troops. "There are no agreed 'rules of land warfare' between antagonists . . . when one . . . is a regular force . . . and the other includes old men, women, and children, as well as guerrilla troops," writes Col. William Corson. "And it is doubtful such rules can even be written. However, lacking such rules, if the United States is to avoid the moral and legal dilemmas associated with brutality in warfare, not only the U.S. fighting man, but the entire American society must have a thorough knowledge of the end the United States has in view . . ."¹⁵

Neither the "fighting man" nor "American society" has had any such understanding, and what is far worse, neither has our political and military leadership, for such an understanding would have revealed the unsuitability of zippo raids and free-fire zones as measures to "pacify" the countryside. Still, assuming that fire power is envisaged as playing a major role in the counterinsurgency warfare, then it is plain that certain accompanying measures are urgently required to "minimize" the inevitably destructive consequences.

Before embarking on a counterinsurgency war in Indochina, for example, some of the staff planners might well have cast a glance across the South China Sea to the Philippines, where we fought a counterinsurgency campaign 70 years ago.

Filipinos, they hunted Emilio Sarmiento, the soldier songs in Vietnam, as reported by Jonathan Schell, are redolent of the same sort of “humor.”* When east and west meet in such unpleasant circumstances, racial slurs and scorns are inevitable, and probably “slope” and “dink” would have become standard Army vocabulary under the best of conditions.

Given the circumstances and purposes of the war, however, it should have been a matter of the highest priority to insure, by indoctrination and subsequent policing, that the troops should treat the Vietnamese as human beings with lives worth preserving. Unfortunately, feelings of racial superiority are not confined to enlisted men, and it is highly probable that many officers have a “mere gook rule” in the back of their minds when they order an air strike or mark out a free-fire zone. In any event, it is all too clear that the Army’s attitude and performance in this area have been woefully inadequate.

American military and economic missions had been in Indochina since the end of the Second World War, and by the time President Johnson took office there were already some 15,000 military personnel in South Vietnam. It is difficult, therefore,

* The "Filipino" song was sung to the Civil War tune "Tramp, tramp, Tramp, the Boys are Marching." The Krag Jorgensen rifle was the standard infantry weapon at the turn of the century. One of the Schell-reported lyrics:

Bomb the schools and churches,

Bomb the rice fields, too,

Show the children in the courtyards

What napalm can do.

Filipinos,

hunted Emilio
soldier songs in
Vietnam, as reported by Jonathan Schell, are redo-
lent of the same sort of “humor.”* When east and
west meet in such unpleasant circumstances, racial
slurs and scorns are inevitable, and probably
“slope” and “dink” would have become standard
Army vocabulary under the best of conditions.

Given the circumstances and purposes of the
war, however, it should have been a matter of the
highest priority to insure, by indoctrination and
subsequent policing, that the troops should treat the
Vietnamese as human beings with lives worth pre-
serving. Unfortunately, feelings of racial superiority
are not confined to enlisted men, and it is highly
probable that many officers have a "mere gook
rule" in the back of their minds when they order an
air strike or mark out a free-fire zone. In any event,
it is all too clear that the Army's attitude and per-
formance in this area have been woefully in-
adequate.

Bomb the rice fields, too,

What napalm can do.

174 CRIME AND PUNISHMENT

Damn, damn, damn the Filipinos,
Civilize them with a Krag

sang the soldiers in 1900, as they hunted Emilio Aguinaldo's irregulars, and today's soldier songs in Vietnam, as reported by Jonathan Schell, are redolent of the same sort of "humor."* When east and west meet in such unpleasant circumstances, racial slurs and scorns are inevitable, and probably "slope" and "dink" would have become standard Army vocabulary under the best of conditions.

Given the circumstances and purposes of the war, however, it should have been a matter of the highest priority to insure, by indoctrination and subsequent policing, that the troops should treat the Vietnamese as human beings with lives worth preserving. Unfortunately, feelings of racial superiority are not confined to enlisted men, and it is highly probable that many officers have a "mere gook rule" in the back of their minds when they order an air strike or mark out a free-fire zone. In any event, it is all too clear that the Army's attitude and performance in this area have been woefully inadequate.

Bomb the rice fields, too,

What napalm can do.

CRIME AND PUNISHMENT 175

to attribute the blunders that accompanied the massive build-up to lack of information. We knew the size, density of population and terrain of the country, and it must have been apparent that however good the aim and intention, the bullets, bombs and shells were going to hit a lot of buildings and people that were simply unfortunate enough to be there. Once the population transfers and search-and-destroy missions became standard practice, the prospect of heavy civilian casualties, and masses of refugees, became a certainty. Bad enough that was, but far worse the failure to provide sufficient housing and hospitals to relieve the suffering we caused, and soon the point was reached where large operations were designed so as not to "generate" refugees for lack of a place to put them.

I have stressed, and I believe rightly, the maddening difficulties and dangers that troops and commanders alike—soldiers at all levels—faced in the conditions, some of our own making, that have developed in South Vietnam as our commitment deepened. For the lower ranks, these circumstances must count powerfully in mitigation of their culpability. But in these confused, complex, and shifting circumstances, the responsibility of the higher officers for training, doctrine and practice is all the greater.

During the Second World War, the German Army in occupied Europe faced conditions that, in some countries, were not totally dissimilar to those prevailing in Vietnam, and had a like mission of "pacification." There, too, villages were destroyed and the inhabitants killed, and after the war a number of field marshals and generals implicated in the

176 CRIME AND PUNISHMENT

actions were brought to trial at Nuremberg in the so-called "High Command case." In summing up at the close of the trial, the prosecution dealt with this same issue of comparative responsibility as between the troops and their leaders:

> Somewhere, there is unmitigated responsibility for these atrocities. Is it to be borne by the troops? Is it to be borne primarily by the hundreds of subordinates who played a minor role in this pattern of crime? We think it is clear that that is not where the deepest responsibility lies. Men in the mass, particularly when organized and disciplined in armies, must be expected to yield to prestige, authority, the power of example, and soldiers are bound to be powerfully influenced by the examples set by their commanders. That is why . . . the only way in which the behavior of the German troops in the recent war can be made comprehensible as the behavior of human beings is by a full exposure of the criminal doctrines and orders which were pressed on them from above by these defendants and others. Who could the German Army look to, other than von Leeb and the senior field marshals, to safeguard its standards of conduct and prevent their disintegration? If a decision is to be rendered here which may perhaps help to prevent the repetition of such events, it is important above all else that responsibility be fixed where it truly belongs. Mitigation should be reserved for those upon whom superior orders are pressed down, and

CRIME AND PUNISHMENT 177

who lack the means to influence general stand-
ards of behavior. It is not, we submit, available
to the commander who participates in bringing
the criminal pressures to bear, and whose re-
sponsibility it is to insure the preservation of
honorable military traditions.¹⁶

When General Peers submitted his report charg-
ing several high-ranking officers with dereliction of
duty in covering up Son My, the press reported
sharp controversy in military circles on whether
the airing of dirty linen would be "good" or "bad"
for the Army as an institution. Of course, both Son
My and the cover-up were indicative of serious
weaknesses, but once Son My had happened, its
exposure was not merely "good" but essential to the
integrity of the Army's leadership. What officer with
any respect or sense for the values of the military
profession could serve with pride in an organiza-
tion where serious crime in the lower ranks is
buried in the files on orders from above? The bury-
ing is itself an offense, known to the law as "mis-
prision of felony," and Son My could not have
been permanently covered up without infecting the
higher reaches of the Army leadership with crim-
inality.

The trouble now is that the uncovering is not
being carried nearly far enough. General Peers was
directed to investigate only what happened after
Son My—specifically "the adequacy of . . . inves-
tigations or inquiries and subsequent reviews and
reports within the chain of command," and "whether
any suppression or withholding of information by
persons involved in the incident had taken place."

178 CRIME AND PUNISHMENT

But so far as is publicly known, the Army has undertaken no general investigation of the killings themselves, to determine the reasons for the conditions that gave rise to the many similar though smaller

Now the Son My court-martial, the prospect of inquiry into those —into body counts, and zippo zones, and “mere gook rules.” That be the defendants’ effort to shift the burden of proof either by showing that what “wrong,” however unlawful, or that more highly placed were prior. Such an inquiry is unlikely to be dispassionate.

"Regardless of the outcome of . . . the My Lai courts-martial and other legal actions," Col. William Corson has written, "the point remains that American judgment as to the effective prosecution of the war was faulty from beginning to end and that the atrocities, alleged or otherwise, are a result of a failure of judgment, not criminal behavior." Colonel Corson overlooks, I fear, that negligent homicide is generally a crime of bad judgment rather than evil intent. Perhaps he is right in the strictly causal sense that if there had been no failure of judgment, the occasion for criminal conduct would not have arisen. The Germans in occupied Europe made gross errors of judgment which no doubt created the conditions in which the slaughter of the inhabitants of Klissura occurred, but that did not make the killings any the less criminal.

178 CRIME AND PUNISHMENT

But so far as is publicly known, the Army has un-
dertaken no general investigation of the killings
themselves, to determine the lea
for the conditions that gave
the many similar though smaller

Now the Son My court-martial
the prospect of inquiry into those
—into body counts, and zippo
zones, and “mere gook rules.” That
be the defendants’ effort to sh
either by showing that what
“wrong,” however unlawful, or that
more highly placed were pri
Such an inquiry is unlikely to
or dispassionate.

178 CRIME AND PUNISHMENT

But so far as is publicly known, the Army has un-
dertaken no general investigation of the killings
themselves, to determine the level of responsibility
for the conditions that gave rise to Son My or
the many similar though smaller incidents.

Now the Son My court-martial proceedings carry
the prospect of inquiry into those ominous problems
—into body counts, and zippo raids, and free-fire
zones, and “mere gook rules.” The motive force will
be the defendants’ effort to shake off culpability
either by showing that what they did was not
“wrong,” however unlawful, or that if wrong, others
more highly placed were primarily responsible.
Such an inquiry is unlikely to be either complete
or dispassionate.

CRIME AND PUNISHMENT 179

Still, there is a real question how far the criminal
process is appropriate as a scale in which to weigh
the responsibility of those in high authority for the
crimes committed in Vietnam. The pages of The
Washington Monthly and the New York Village
Voice have recently been the vehicle for a running
debate on the subject between Townsend Hoopes,
former Under Secretary of the Air Force and au-
thor of an interesting account of top-level policy
formulation from 1965 to 1969, and two newspaper
reporters, Geoffrey Cowan and Judith Coburn.17
The reporters thought that if Justice Jackson's
promise at Nuremberg were to be kept, President
Johnson and his associates ought to be brought be-
fore a like bar of justice; Mr. Hoopes's reaction to
this, not unnaturally, was one of dismay. The an-
tagonists never squarely locked horns, so that not
even the most dispassionate judge could award the
laurels of victory to either side. Mr. Hoopes's de-
fense, nonetheless, was something less than satis-
fying, for the burden of it was that American lead-
ers are intrinsically "good" men. "Lyndon Johnson,
though disturbingly volatile, was not in his worst
moments an evil man in the Hitlerian sense," Mr.
Hoopes declared, while "his principal advisers
were, almost uniformly, those considered to be
among the ablest, the best, the most humane and
liberal men that could be found for public trust."

That is what trial lawyers call "character testi-
mony." Whatever its value in a fraud or perjury
case, it is not very relevant to a determination
whether certain proven conduct is criminal, and
whether the defendant was implicated. How much
the President and his close advisers in the White

180 CRIME AND PUNISHMENT

House, Pentagon and Foggy Bay the volume and cause of civilian nam, and the physical devastat side, is speculative. Something late John McNaughton (then of Defense) returned from the day in 1967 with the message that proceeding on the assumption that the Vietcong is to destroy a cate the Vietcong is to destroy a tures, defoliate all the jungles, and then cover the entire surface of South Vietnam with asphalt. (18)

Whatever the limits and standards of culpability for civilians in Washington, the proximity and immediate authority of the military commanders ties the burden of responsibility much more tightly to their shoulders. The divisional and other commands in Quang Ngai Province, within which Son My is situated and where civilian casualties and physical destruction have been especially heavy, were subordinated to the Third Marine Amphibious Force, commanded by Lieut. Gen. Robert E. Cushman, who in turn was directly responsible to the top Army headquarters in Vietnam, the Military Assistance Command Vietnam (MACV). At the time of Son My, Gen. William Westmoreland headed MACV, with Gen. Creighton Abrams as his deputy, and Lieut. Gen. William B. Rossen in charge of a headquarters of MACV in northern South Vietnam. From MACV, the chain of command runs through the Commander-in-Chief Pacific (Adm. Ulysses Grant Sharp Jr.) to the Chiefs of Staff in Washington.

It is on these officers that command responsibil-

180 CRIME AND PUNISHMENT

House, Pentagon and Foggy Bo-
the volume and cause of civilian
nam, and the physical devastat-
side, is speculative. Something v
late John McNaughton (then A
of Defense) returned from the
day in 1967 with the message th
proceeding on the assumption tha
cate the Vietcong is to destroy a
tures, defoliate all the jungles, and then cover the
entire surface of South Vietnam with asphalt. (18)

180 CRIME AND PUNISHMENT

House, Pentagon and Foggy Bottom knew about the volume and cause of civilian casualties in Vietnam, and the physical devastation of the country-side, is speculative. Something was known, for the late John McNaughton (then Assistant Secretary of Defense) returned from the White House one day in 1967 with the message that "We seem to be proceeding on the assumption that the way to eradicate the Vietcong is to destroy all the village structures, defoliate all the jungles, and then cover the entire surface of South Vietnam with asphalt."¹⁸

CRIME AND PUNISHMENT 181

ity for the conduct of operations has lain. From General Westmoreland down they were more or less constantly in Vietnam, and splendidly equipped with helicopters and other aircraft, which gave them a degree of mobility unprecedented in earlier wars, and consequently endowed them with every opportunity to keep the course of the fighting and its consequences under close and constant observation. Communications were generally rapid and efficient, so that the flow of information and orders was unimpeded.

These circumstances are in sharp contrast to those that confronted General Yamashita in 1944 and 1945, with his forces reeling back in disarray before the oncoming American military powerhouse. For failure to control his troops so as to prevent the atrocities they committed, Brig. Gens. Egbert F. Bullene and Morris Handwerk and Maj. Gens. James A. Lester, Leo Donovan and Russel B. Reynolds found him guilty of violating the laws of war and sentenced him to death by hanging. The sentence was first confirmed by the area commander, Lieut. Gen. William D. Styer, and then by Gen. Douglas MacArthur, as Commander-in-Chief, United States Army Forces in the Pacific. In his statement on the confirmation, General MacArthur said of Yamashita:

> It is not easy for me to pass penal judgment upon a defeated adversary in a major military campaign. I have reviewed the proceedings in vain search for some mitigating circumstance on his behalf. I can find none. Rarely has so cruel and wanton a record been spread to pub-

182 CRIME AND PUNISHMENT

lic gaze. Revolting as this may be in itself, it pales before the sinister and far-reaching implication thereby attached to the profession of arms. . . . This officer, of proven field merit, entrusted with high command involving authority adequate to responsibility, has failed this irrevocable standard; has failed his duty to his troops, to his country, to his enemy, to mankind; has failed utterly his soldier faith. The transgressions resulting therefrom as revealed by the trial are a blot upon the military profession, a stain upon civilization and constitute a memory of shame and dishonor that can never be forgotten . . .

I approve the findings and sentence of the Commission and direct the Commanding General, Army Forces in the Western Pacific, to execute the judgment upon the defendant, stripped of uniform, decorations and other appenditures signifying membership in the military profession.

Whether or not individuals are held to criminal account is perhaps not the most important question posed by the Vietnam war today. But the Son My courts-martial are shaping the question for us, and they can not be fairly determined without full inquiry into the higher responsibilities. Little as the leaders of the Army seem to realize it, this is the only road to the Army's salvation, for its moral health will not be recovered until its leaders are willing to scrutinize their behavior by the same standards that their revered predecessors applied to Tomayuki Yamashita 25 years ago.

8 War and
Peace

WHY WE ARE IN VIETNAM is today a question of mainly historical interest. We *are* there, for better or for worse, and we must deal with the situation that exists." So read the opening words of Arthur M. Schlesinger Jr.'s 1967 study of American involvement in Vietnam.¹ But the reasons why we are in Vietnam are part of "the situation that exists," and the question-what those reasons are-is both a moral and a practical issue of great moment.

Consider the conflicting versions of our Vietnam purposes even within the White House circle. Early in 1967 Walt W. Rostow, then a close adviser to President Johnson, told a meeting of college student editors that our "intervention had been based largely on obligations under SEATO to resist aggression." His statement was immediately and publicly

184 WAR AND PEACE

challenged by Richard N. Goodwin, a former as-
sistant to Presidents Kennedy and Johnson, who de-
clared that the United States had not acted under
treaty obligations, but rather "because, in the judg-
ment of the Presidents, American power and inter-
ests demanded it."

The same contrast is manifest in the explanations
of United States policy given by Eugene V. Rostow,
Walt's brother and former Under Secretary of State,
in the course of a long interview with William
Whitworth of the New Yorker.² Speaking of Ameri-
can policy in India and South Vietnam, Rostow
declared that "our interest is not to protect democ-
racy as such but to deter, prevent, or defeat ag-
gression." Then at another point he described the
motivation of our intervention in Vietnam as based
on the Government's being concerned about "the
long-range impact a withdrawal would have on
Japanese policy," and being "afraid that the enor-
mous masses and the geographical and strategic
areas of that region will fall into the hands of hos-
tile or potentially hostile powers."

In an earlier chapter, I have stated my opinion
that the courts cannot reasonably be expected to
pass judgment on the legality of our Vietnam poli-
cies. But to say that the judges should not answer
the question is not to deny the reality and signifi-
cance of the question itself. Dean Rusk had no war-
rant of authority to determine for all men and all
time that North Vietnam committed aggression
against South Vietnam. It may be unlikely that
our leaders will be called upon to answer at the bar
of some future international tribunal, but there is

WAR AND PEACE 185

also the bar of history. As a nation dedicated to
liberty, justice and peace on earth it is surely in-
cumbent on us to engage in hard self-scrutiny, and
conform our actions, as far as humanly possible, to
the principles we profess.

Are we, then, acting in Vietnam as a global po-
liceman, under the Nuremberg principles and the
United Nations Charter, to "deter, prevent or de-
feat aggression"? Or are we promoting "American
power and interests" in Asia? Enormously different
consequences would flow from the dominance of
one or the other of these purposes—differences in
the suitability of particular military tactics, in the
weight to be given to the attitude of other nations
toward our actions, and in the terms of an accept-
able armistice or peace settlement.

If preservation of the American position in
Southeast Asia is the governing motive, then the
question whether North or South Vietnam "struck
the first blow" is of only collateral significance;
whichever was the more to blame, America would
be equally disadvantaged by a victory for the
North. Essentially, we would be back to 19th cen-
tury notions of legitimacy, when Lieber could de-
scribe war as an "acknowledged . . . means to ob-
tain great ends of state." Perhaps that is still our
international ethic. The Bay of Pigs was an unsuc-
cessful but hardly a defensive operation; it was our
counterpart to the Anglo-French fiasco at Suez.
Nevertheless, one may suspect that in both cases the
failure was largely due to the attacker's feelings of
guilt, which inhibited us, as it did the British and
French, from striking hard enough to achieve a
prompt *fait accompli*.

186 WAR AND PEACE

Some of our other military ventures, especially in
this hemisphere, have been less than simon-pure
in terms of Nuremberg principles. Nevertheless,
there is a deeply idealistic strain in the American
interventionist tradition. In 1898, President Mc-
Kinley justified the war against Spain: "In the cause
of humanity and to put an end to the barbarities,
bloodshed, starvation, and horrible miseries now ex-
isting" in Cuba. Thereafter, the United States joined
with other governments in denouncing the Ru-
manian and Russian pogroms, especially at Kishi-
nev, and the Turkish massacres of Armenians in
1915.

The idea that a government's treatment of its own
nationals can be so contrary to civilized standards
as to constitute an international crime, indeed, lies
at the root of the "crimes against humanity" con-
cept of the London Charter, and of the Genocide
Convention.³ And it was in this spirit that President
Eisenhower pledged support to South Vietnam in
1954, telling President Ngo Dinh Diem that it was
our purpose to "discourage any who might wish to
impose a foreign ideology on your free people." In
fact, the people were certainly not as "free" as the
President thought; nevertheless, as Arthur Schles-
inger puts it, the mood in which the Government
started into Vietnam was "essentially moralistic."

To be sure, idealistic and selfish motives are not
mutually exclusive, and sometimes work in con-
junction. The North Korean attack against South
Korea in 1950 was a far greater threat to Japan and
the general American position in Asia than ever was
Ho Chi Minh, and very likely the United States

WAR AND PEACE 187

would have intervened whatever the Korean rights and wrongs might have been. In fact it was a clear case of aggression by North Korea, and the United Nations soon put its stamp of approval on the American action, which thus became a multilateral operation under an umbrella of international consensus.

I have already indicated my belief that one of the difficulties about applying the Nuremberg "crimes against peace" standards to our Vietnam venture is the diversity of impressions and motives that governed the many men who have influenced the course of the operation over the 16 years that it has now been under way. Things may not have looked the same to President Johnson in 1964 as they had to Eisenhower 10 years earlier; if, as has been reported, Johnson was strongly moved by a desire not to be "the first American President to lose a war,"⁴ one can only say that this was hardly a worthy reaction to a problem of the greatest moment to the nation, and would not be a strong defense in any forum.

Lacking the documents and testimony to establish the personal intentions of the movers and shakers in Washington, we are thrown back to the record of what the United States Government has actually done in Vietnam. On that record, it is difficult not to reach a harsh verdict. If the primary purpose had remained, as Eisenhower said, to protect South Vietnam from the imposition of a "foreign ideology" or, as the Rostow brothers tell us, to deter aggression, it is inconceivable that our conduct of military operations should have taken the course

188 WAR AND

that it has. What
intentions may
ment in Vietnam
submerged und
struction that the
tions of the operation as a whole. Colonel Corson
has summed up the consequences in a mordant
pun: The United States in Vietnam has become
an "international lethal aid society."

Why did things go so wrong? Some say it is because our leaders were war criminals. Whether or not that be so, it is an unsatisfactory answer in terms of causation, for it assumes that the leaders wanted things to turn out as they have, whereas in fact it is plain that those responsible are exceedingly dissatisfied with the present consequences of their policies. Surely Lyndon Johnson would never have done what he did in 1964 and 1965 if he could have foreseen the results in 1968.

I think that Colonel *Corson* is much closer to the
truth—or truths—in saying that “American judg-
ment as to the effective prosecution of the war was
faulty from beginning to end”; that we became
“over-involved militarily in the armed forces of
the present, under-involved politically in the human
forces of the future”; and that in the upshot our
political and military leaders alike lost sight of the
old law of war that “it is a mistake, illegal and
immoral, to kill people without clear military ad-
vantage in a war.”

That is more enlightening on the "how" than the
"why" we got off course. On the second question

188 WAR AND PEACE

that it has. What
intentions may have
ment in Vietnam
submerged unde-
struction that the
tions of the oper-
ations of a wheretoe
has summed up the consequences in a mordant
pun: The United States in Vietnam has become
an "international lethal aid society."

Why did things go so wrong? Some say it is be-
cause our leaders were war criminals. Whether or
not that be so, it is an unsatisfactory answer in
terms of causation, for it assumes that the leaders
wanted things to turn out as they have, whereas
in fact it is plain that those responsible are exceed-
ingly dissatisfied with the present consequences
of their policies. Surely Lyndon Johnson would
never have done what he did in 1964 and 1965 if he
could have foreseen the results in 1968.

188 WAR AND PEACE

that it has. Whatever peace-keeping and protective
intentions may have governed our initial involve-
ment in Vietnam have by now been so completely
submerged under the avalanche of death and de-
struction that they no longer are credible descrip-
tions of the operation as a whole. Colonel Corson
has summed up the consequences in a mordant
pun: The United States in Vietnam has become
an "international lethal aid society."

I think that Colonel Corson is much closer to the
truth—or truths—in saying that "American judg-
ment as to the effective prosecution of the war was
faulty from beginning to end"; that we became
"over-involved militarily in the armed forces of
the present, under-involved politically in the human
forces of the future"; and that in the upshot our
political and military leaders alike lost sight of the
old law of war that "it is a mistake, illegal and
immoral, to kill people without clear military ad-
vantage in a war."

WAR AND PEACE 189

the record is still incomplete and cloudy, but the accounts and comments of those on the edge of the inner circle strongly indicate that there was a misfit between ends and means; that the military leaders never grasped the essentially political aims of intervention, and the political leaders neglected or were unable to police the means that the military adopted to fulfill what they conceived to be their mission.

If the objective of our Vietnam policy be stated over-simply as "to stop Communism at the 17th parallel," there were at most two ways to do that. The first, which has been our stated policy, is to gain and hold the political allegiance of the South Vietnamese to a non-Communist government, while giving them defensive assistance against any military means used by the North. The second was to ignore the South Vietnamese people, treat South Vietnam as a battlefield, and kill all the North Vietnamese or Vietcong found on or moving toward the battlefield. The sad story of America's venture in Vietnam is that the military means rapidly submerged the political ends, and the first method soon gave way to the second.

Whether or not the first method could have been successfully employed is and will remain an unanswered question. After the Second World War it worked well for us in Greece, but Vietnam is quite another place. After Ho Chi Minh's long and eventually successful struggle against the French, it is at least doubtful that any Western power—perhaps any outside power—could effectively participate in Vietnam's internecine troubles. The

190 WAR AND PEACE

United States had few scholars or diplomats expert in Vietnamese institutions. Still, there were those who thought in these terms, including Roger Hilsman and Walt Rostow(!) who in 1962 "developed a cogent and comprehensive 'strategic concept for counterinsurgency' that emphasized . . . subordination of military actions to political purpose, and reliance on small scale counter guerrilla units, as opposed to conventional military formations."⁵

According to Townsend Hoopes, the Army was strongly opposed to these projects, and it is easy to see why: The regular armed services have no capacity for such undertakings. That being so, it was a possible conclusion that Vietnam was a good place for the Army to stay out of, and that was precisely the conclusion reached in 1954 by the Chief of Army Plans, Lieut. Gen. James M. Gavin. It was his opinion that "as a military operation Vietnam made no sense," because "unless the people of the country prefer the government supported by foreign troops to the guerrillas, the mere introduction of large numbers of ground troops with modern equipment would not resolve the military conflict."⁶

But what the Army and Air Force had, in great abundance, was mobility and firepower, and what they thought would be adequate manpower. Confronted with what appeared to be a deteriorating situation in South Vietnam, President Johnson and his advisers clutched for the means at hand without sufficiently considering their suitability for the end in view.

The bankruptcy of the firepower tactic did not go unobserved. "My feeling is that you could kill

WAR AND PEACE 191

every Vietcong and North Vietnamese in South Vietnam and still lose the war,” said the commandant of the Marine Corps, Gen. Wallace M. Greene. “Unless we can make a success of the civic-action program, we are not going to achieve the objectives we have set.”⁷ But neither Pentagon nor White House gave heed. Townsend Hoopes remained uncertain whether President Johnson “never understood the incompatibility of Westmoreland’s ground strategy with his own stated political objective, i.e. to gain the political allegiance of the people of South Vietnam,” or whether “he regarded the political aim as mere words and the need for military victory as the only governing reality.”

However that may be, neither the President nor the Secretary of Defense, Robert McNamara, gave effective review to Westmoreland's operations. “The preferred military doctrine dictated the strategy, and the strategy determined the policy,” says Hoopes, adding that “during nearly three years of steadily rising combat and casualty levels, Washington did not seriously question or modify the Westmoreland strategy of attrition.” The Pentagon simply lost sight of “the truth that protection for the people against Vietcong terror had to be achieved by means that did not themselves alienate the people by causing heavy civilian casualties and wanton physical destruction.”⁸

By the summer of 1968, it had become painfully apparent that the Westmoreland firepower tactic, apart from the moral and legal aspects, was a mili-

loyalties had been inflicted on
by remained undefeated.
confidence," writes Gen. David
Grant of the Marine Corps,
the front is in fact better
organized and enjoys greater loyalty among the
people of Vietnam than does the Saigon govern-
ment."⁹

ment."
In this costly miscalculation, the Pentagon leaders were not only deaf to the warnings of General Gavin and others, but also blind to the lessons of recent military history. After the Second World War, the Army embarked on an intensive study of the German military record, presumably to see what lessons could be learned. The lessons were there, to be sure, but their meaning does not seem to have fastened itself in the American military mind.

Consider once again the massacre of Greek vil-
lagers at Klissura, described in an earlier chapter.¹⁰
When this incident became known to the German
civilian authorities in Greece, whose principal inter-
est was in pacification of the occupied country,
there was prompt and fiery protest to the German
commander-in-chief, Field Marshal Maximilian von
Weichs. The message came from Hermann Neu-
bacher, the Foreign Office Plenipotentiary in South-
east Europe:

... It is utter insanity to murder babies, children, women and old men because heavily armed Red bandits billeted themselves overnight, by force, in their houses, and because they killed two German soldiers near the vil-

bodies had been inflicted on
remained undefeated.
violence," writes Gen. David
D. Grant of the Marine Corps,
the Vietnam Front is in fact better
organized and enjoys greater loyalty among the
people of Vietnam than does the Saigon govern-
ment."⁹

Consider once again the massacre of Greek villagers at Klissura, described in an earlier chapter.¹⁰ When this incident became known to the German civilian authorities in Greece, whose principal interest was in pacification of the occupied country, there was prompt and fiery protest to the German commander-in-chief, Field Marshal Maximilian von Weichs. The message came from Hermann Neubacher, the Foreign Office Plenipotentiary in Southeast Europe:

> It is utter insanity to murder babies, children, women and old men because heavily armed Red bandits billeted themselves overnight, by force, in their houses, and because they killed two German soldiers near the vil-

192 WAR AND PEACE

tary failure. Heavy casualties had been inflicted on
the Vietcong, but they remained undefeated.
"There is considerable evidence," writes Gen. David
Shoup, retired commandant of the Marine Corps,
"that the National Liberation Front is in fact better
organized and enjoys greater loyalty among the
people of Vietnam than does the Saigon govern-
ment."⁹

WAR AND PEACE 193

lage. The political effect of this senseless blood
bath doubtlessly by far exceeds the effect of all
propaganda efforts in our fight against com-
munism.

No matter what the final result of the investi-
gation may be, the operation against Klissura
represents a severe transgression of existing
orders. The wonderful result of this heroic deed
is that babies are dead. But the partisans con-
tinue to live and they will again find quarters
by use of submachine guns in completely de-
fenseless villages. It is a further fact that it is
much more comfortable to shoot to death en-
tirely harmless women, children, and old men
than to pursue an armed band with a manly
desire for vengeance and to kill them to the
last man. The use of such methods must neces-
sarily lead to the demoralization of genuine
combat morale.¹¹

Ambassador Neubacher was not alone in his per-
ception of the self-defeating nature of such meas-
ures. In July, 1943, the Austrian General Edmund
von Glaise-Horstenau admonished the German Air
Force commanders in the Balkans that their reprisal
bombing raids on villages "forces additional people
into the woods and shakes confidence in the Ger-
man soldier of those parts of the population that
are friendly to us." From Serbia, a German Army
captain reported on the harmful effects of shooting
innocent persons:

> Above all, the psychological effect will
> be catastrophic. The residents of Kragujevac
> had hoped that the German Wehrmacht would

194 WAR AND PEACE

rid them of the Communist danger and that they would be aligned into the new framework of Europe. With the methods applied here we shall most certainly fail to win back the favorably inclined elements of the population. ... ¹²

Perhaps the most forceful denunciation of German "search-and-destroy" tactics came from a German civilian official in Belgrade a few months after the occupation of Yugoslavia began, when a German Army captain was killed by a "Communist" who "had been lying in ambush in the cornfield and fled through the corn to the woods after committing the deed." In reprisal the Germans shot a number of nearby farmers, and then took more extensive measures, as described in the official's protest to the German commander in Serbia:

> ... In order to combat Communist operations which had got out of hand during the last few days, the German headquarters sent a motorized assault troop which is at present going through all the villages making arrests and, due to ignorance of the situation, is killing innocent men, women, and children. ...

> The consequence of the procedure of the German assault troops will be that a large number of innocent people will be slaughtered and that the Communists in the woods not only will not be exterminated but will increase in numbers. Because many farmers, even entire villages—even though up to now they had no connection with the Communists—will flee into the woods only out of fear and will be re-

WAR AND PEACE 195

ceived there by the Communists. They will be
provided with arms and used for combat and
for open revolt against the German armed
forces. This insurrection will develop on a large
scale and will have incalculable and terrible
consequences for the entire population . . . ¹³

Now comparable reports are beginning to emerge
from Vietnam. Reprisal bombing attacks on vil-
lages have driven thousands of the inhabitants to
refugee camps, and subjected those who stay to a
fear-ridden existence. A report on refugees, done
in 1968 for the Rand Corporation, reveals that "ex-
cessive misdirected bombing" had made them hos-
tile to the Saigon Government, and served only to
"knock the underpinnings from efforts to gain the
support of the people."¹⁴ Two years later, as Ameri-
can soldiers moved into Cambodia, news corre-
spondents reported that "the pattern of Vietnam is
being repeated"; that the troops were under orders
to "burn everything," and that heavy bombing was
driving the inhabitants into the ranks of the Viet-
cong.¹⁵

And so in August, 1970, when newspaper headlines informed us "Americans in Vietnam Find Themselves Hated," it should have come as no surprise. "The B-52 bombing raids, the air strikes on villages where there might have been Vietcong but maybe not, the incidents of cruelty by United States troops—all these things have made many Vietnamese angry and outraged," wrote Gloria Emerson.¹⁶ "The Americans are hated now because they have, for so long, told the Vietnamese how to win the war. Despite such assurance, the war is a long

196 WAR AND PEACE

way from being won." Now it has
that Americans in Saigon can no
alone, and are "advised to trav

In a recent television address
Southeast Asia, President Nixon
"pitiful, helpless giant," and ho
United States, under his lead
such a part. Pitiful and helpless
but the course of events under t
students raises painful doubts wh
as a nation may not have been arrogant and blind
-or at best one-eyed, seeing in only one direction,
and unable to perceive the lessons of the past or
the trends of the present.

If an effort be made to look beneath the orders
and operations and speeches and press releases for
some clues to understanding the Vietnam debacle,
then one must contemplate Vietnam not in isolation
but in the context of the times and the many other
failures and dangers that are unsettling the United
States today. Most of them, I believe, can be gath-
ered under the expression of "under-maintenance,"
caused by our unwillingness, despite enormous
material means, to invest the time, thought and
resources necessary to preserve the foundations
and basic services of society. Attention is given to
ever taller skyscrapers, supersonic airliners and
moon landings, while we pollute the air and water
and allow education, transportation, housing and
health to degenerate.

Despite the billions of dollars we have spent on
the Vietnam war and the incredible weight of ex-

196 WAR AND PEACE

way from being won." Now it has
that Americans in Saigon can no
alone, and are "advised to travel

In a recent television address
Southeast Asia, President Nixon
"pitiful, helpless giant," and ho
United States, under his lead
such a part. Pitiful and helpless
but the course of events under t
ENTS raises painful doubts wh
as a nation may not have been
-or at best one-eyed, seeing in
and unable to perceive the
the trends of the present.

196 WAR AND PEACE

way from being won." Now it has come to the point
that Americans in Saigon can no longer walk safely
alone, and are "advised to travel in pairs."

In a recent television address on the war in
Southeast Asia, President Nixon coined the phrase
"pitiful, helpless giant," and hotly denied that the
United States, under his leadership, would play
such a part. Pitiful and helpless the nation is not,
but the course of events under the last three Presi-
dents raises painful doubts whether our conduct
as a nation may not have been arrogant and blind
—or at best one-eyed, seeing in only one direction,
and unable to perceive the lessons of the past or
the trends of the present.

WAR AND PEACE 197

plosives dropped on that unhappy land, our failure
there is largely due to *under-maintenance*. The
point is implicit in the title of Jonathan Schell's
book—"*The Military Half*"—as explained in a con-
cluding passage:

Many optimistic Americans, including reporters as well as military men and civilian officials, tended to set off the destruction caused by the military effort against the construction resulting from the civil-affairs effort, seeing the two results as separate but balanced "sides" of the war; and, looking at our commitment of men and materials, they were often favorably impressed with the size of the constructive effort, almost as though it were being carried out in one country while the military effort was being carried out in another. But, of course, the two programs were being carried out in the same provinces and the same villages, and the people who received the allotments of rice were the same people whose villages had been destroyed by bombs. . . . Many of the civil-affairs officials were working exhausting long hours and doing the best job they could with their limited time and resources, and they could not see why the people should complain and expect more than they were getting. Many military men, for their part, were loyal only to their duty—that of conducting military operations. Having efficiently carried out the "military half," they saw it as the responsibility of the Vietnamese government and of the

198 WAR AND PEACE

American civil-affairs advisers to c
“civilian half” by taking care of
who had been hurt or dispossessed
tary half.” . . . But because, alo
destruction of villages, American
erations brought death to many civ
ican civil-affairs workers, no matt
intentioned they might be, and no
well supplied they might some
could never, from the point of vie
lagers, “balance” the sufferings ca
military, or undo what they had done, which
was often absolute and irreversible.¹⁷

The “civil half” never became “well supplied”; to paraphrase George Orwell, some halves are larger than others, and the “military half” has been virtually the whole. Colonel Donovan has estimated the cost of the air war alone, to the end of 1968, at over $7-billion for bombs dropped and aircraft lost.¹⁸ Over half of this sum was spent on bombing North Vietnam from early 1965 to late 1968.⁹ The bombing in South Vietnam has, of course, been the principal cause of civilian casualties and the “generation” of refugees.

Consider, in comparison, the American invest-
ment in care for the refugees and casualties. In the
summer of 1965, a subcommittee of the Senate
Judiciary Committee, entitled "Subcommittee on
Refugees" and chaired by Senator Edward M. Ken-

° In August, 1969, the Air Force Chief of Staff, Gen. John P. McConnell, told the Senate Armed Services Committee: "Every thing is operating up there [in North Vietnam] very nearly as if it had not even been touched. I could say the repair is 75 per cent completed."

# for bombs - L85

198 WAR AND PEACE

American civil-affairs advisers to c
"civilian half" by taking care of
who had been hurt or dispossessed
tary half." . . But because, alon
destruction of villages, American
erations brought death to many civil
ican civil-affairs workers, no matt
tentioned they might be, and no
well supplied they might some
could never, from the point of vie
lagers, "balance" the sufferings ca
military, or undo what they had done, which
was often absolute and irreversible.¹⁷

The "civil half" never became "well supplied"; to paraphrase George Orwell, some halves are larger than others, and the "military half" has been virtually the whole. Colonel Donovan has estimated the cost of the air war alone, to the end of 1968, at over $7-billion for bombs dropped and aircraft lost.¹⁸ Over half of this sum was spent on bombing North Vietnam from early 1965 to late 1968.⁹ The bombing in South Vietnam has, of course, been the principal cause of civilian casualties and the "generation" of refugees.

198 WAR AND PEACE

American civil-affairs advisers to carry out the "civilian half" by taking care of the people who had been hurt or dispossessed in the "military half." . . . But because, along with the destruction of villages, American military operations brought death to many civilians, American civil-affairs workers, no matter how well intentioned they might be, and no matter how well supplied they might someday become, could never, from the point of view of the villagers, "balance" the sufferings caused by the military, or undo what they had done, which was often absolute and irreversible.¹⁷

Consider, in comparison, the American investment in care for the refugees and casualties. In the summer of 1965, a subcommittee of the Senate Judiciary Committee, entitled "Subcommittee on Refugees" and chaired by Senator Edward M. Ken-

⁹ In August, 1969, the Air Force Chief of Staff, Gen. John P. McConnell, told the Senate Armed Services Committee: "Every thing is operating up there [in North Vietnam] very nearly as if it had not even been touched. I could say the repair is 75 per cent completed."

WAR AND PEACE 199

nedy, held hearings on the refugee situation in South Vietnam, and these were followed by further investigations of both refugees and casualties in 1966 and 1967, a trip to Vietnam by Senator Kennedy in January, 1968, and a public report by the subcommittee in May, 1968.¹⁹

According to the Refugee Subcommittee's report, American financial support for the care and resettlement of refugees amounted to approximately $100-million for the three years 1966 to 1968 inclusive. Medical assistance for the civilian casualties totaled $76-million for the three years 1965 to 1967. Making generous allowance for missing figures, perhaps a quarter of a billion dollars was devoted to civilian relief during the four years 1965 to 1968, while military operations were at their peak. That is less than four per cent of the cost of air operations alone during the same period.

This parsimony in the "civil half" was observed when our own military actions were causing conditions in the refugee camps and hospitals that can only be described as frightful. Why? The Subcommittee found no rational answer:

> In many respects, the subcommittee has found this Government's handling of the civilian casualty and health problems one of the most puzzling aspects of our Vietnam involvement. The needs were obvious from the very early stages of our military buildup in Vietnam. Equally obvious was the fact that the South Vietnamese were themselves incapable of meeting the vast demands placed upon outdated and inadequate medical facilities.

Ted Kennedy

200 WAR AND PEACE

Yet for some reason this Government has
been unable or unwilling to come to grips with
the civilian medical situation in South Viet-
nam. We have talked of winning the hearts and
minds of the people of South Vietnam; yet we
have, we must assume by choice, chosen to
meet only partially the urgent needs of the
wounded, injured, and sick of this country we
have sworn to help and these people we seek
to protect. . . .

It is, to be sure, much more the conventional
military mission to fire guns and drop bombs than
to build housing and hospitals. The fundamental
mistake was not the Army's, but rather the selec-
tion of the Army to do a job for which it was ill
equipped. Once it was in charge, the worst aspects
of the military system surfaced, then dominated
the conduct of operations. Combat command is the
surest road to promotion, and the Army and Air
Force were only too glad to find a new theater for
military experimentation. As Colonel Donovan de-
scribes the professional consequences:

The highly trained career officers of the
Army and the other services have found the
Vietnam war a frustrating but fascinating pro-
fessional challenge. The very size and scope of
the American military force has also generated
unceasing pressures to satisfy such military de-
mands as trying out new weapons and using
the war as a military testing ground and labora-
tory. Helicopter assault theories, air mobile
operations concepts, new helicopter types, new

WAR AND PEACE 201

weapons and organizations, and counterinsur-
gency tactics were all ready for trial by the
Army in Vietnam. It was not a life-or-death war
in defense of the United States, but rather a
remote and limited conflict where training and
equipment could be tested and combat experi-
ence renewed or attained by the profession-
als. . . .20

Perhaps stronger and wiser military leadership
would have averted the worst of the consequences,
or perhaps even advised against the entire venture,
in line with the views of generals such as Ridgeway
and Gavin. But the armed services no longer pos-
sess leaders of stature and influence comparable to
the heros of the Second World War. In the Army,
Marshall and MacArthur and their juniors such as
Eisenhower and Bradley, in the Navy, King and
Nimitz, in the air, Arnold, Spaatz and Doolittle
wielded moral as well as doctrinal influence, de-
rived from their seniority, achievements and mani-
fest ability. Today there are no comparable figures,
and in part this is due to the cheapening of rank.
After the victory over France in 1940, Adolf Hitler
cleverly robbed individual generals of laurels by
making them all field marshals and, to quote W. S.
Gilbert once again: "When everyone is somebody,
why no one's anybody." The spread of the "military-
industrial complex" has worked the same mischief
in our top military echelon today; there are so
many active and retired four-star "full" generals
that rank has lost its distinction, and so many re-
tired senior officers employed by defense industries

202 WAR AND PEACE

(over 2,000 in 1969), that the rather Spartan simplicity of the old Army days has given way to a much more crass temper.

There are, to be sure, those who are able to regard the political consequences of American military operations in Vietnam as desirable. "In an absent-minded way," writes Professor Samuel P. Huntington, "the United States in Vietnam may well have stumbled upon the answer to 'wars of national liberation.' The effective response lies neither in the quest for conventional military victory nor in the esoteric doctrines of counterinsurgency warfare. It is instead forced-draft urbanization and modernization which rapidly brings the country in question out of the phase in which a rural revolutionary movement can hope to generate sufficient strength to come to power."21

But, as Professor Huntington elsewhere recognizes, the population shift to the cities is largely a flight from the horrors of war in the country. To describe the exodus stimulated by "zippo" raids and air strikes, and the consequent wretched huddle in refugee camps and hospitals, as "forced-draft urbanization and modernization" is a euphemism to end all euphemisms, fit to be bracketed with an American general's reported and less elegant judgment: "If you get them by the balls, the hearts and minds will follow."

What, then, are the obligations of the young man called by draft to serve in a war that he deeply believes to be, in the old religious terminology, "unjust"—whether because we had no right to inter-

WAR AND PEACE 203

vene in the first place, or because, in Colonel Dono-
van's words, our "techniques of fire and military
power were immoral and were in fact destroying
the people we were striving to assist"? Nuremberg,
historically speaking, gives no answer. But what
about Nuremberg the symbol of overriding inter-
national standards binding on individuals?

The Spanish theologians had a categorically af-
firmative answer to the question. "If a subject is
convinced of the injustice of a war, he ought not to
serve in it, even on the command of his prince,"
wrote Vitoria. "This is clear, for no one can author-
ize the killing of an innocent person. But in the case
before us the enemy are innocent. Therefore they
may not be killed . . . Hence flows the corollary
that subjects whose conscience is against the justice
of a war may not engage in it whether they be
right or wrong. This is clear for 'whatever is not of
faith is sin.'" Suarez was of the same opinion.²²

To refuse to serve "even on the command of his
prince" is a high and principled standard—too high
for most men. Perhaps here the law will give some
sanctuary. It is true that the Selective Service stat-
ute gives conscientious objector status only to those
who are opposed to "war in any form," but today
there is distinguished authority for the view that,
at least in Vietnam ("a campaign fought with lim-
ited forces for limited objects with no likelihood
of a battlefront within this country and without a
declaration of war"), Congress cannot constitution-
ally require a man to do combat duty against the
dictates of his conscience.²³

But we should not have to await an answer from

204 WAR AND PEACE

the courts. Given the course the war has taken, and
the depth and breadth of opposition to its conduct,
it is both unwise and inhumane to compel people
to serve in it against their will. For the United
States, this is a new kind of war for our times—the
precedents in Mexico and the Philippines are long
forgotten—and one for which compulsory service
should not be required.

In this respect, I believe, the views of the draft-
age generation are sound, and it is only to be re-
gretted that they have been so often pressed in a
counterproductive manner. I suppose that few
things have contributed more to the much-dis-
cussed "generation gap" than the circumstance that
most people over 45 were more or less deeply in-
volved in the Second World War, the purposes and
waging of which they heartily approved, while no
one under 25 has any meaningful recollection of
any but the Vietnam war, which is widely regarded
as despicable and a national calamity. One need not
have been a hero to look back on military service in
World War II with satisfaction if not pride, and
with pleasure in feeling that one had made a con-
tribution, however small, to a great and necessary
military victory. Given these memories, American
flag-burnings, Vietcong flag displays and shouts of
"Ho! Ho! Ho Chi Minh!" are bound to offend deeply
even those to whom the Vietnam war is an abomi-
nation. When one considers also the hundreds of
thousands of families whose sons have served in
Vietnam and perhaps been killed or wounded, and
who have a large psychological stake in the worth-
whileness of the sacrifice, bitter resentment and hos-

WAR AND PEACE 205

tility toward the uninhibited youth demonstrators are inevitable, as is the violence that is their product.

But it is not the demonstrations that cast the shadows of doubt and cynicism across those White House posthumous awards of Medals of Honor, and the countless memorials and mournings in humbler quarters; rather it is our own record as a nation, especially since 1964. It has been well said that a people get the kind of government they deserve. The Vietnam war was not the brain-child of construction workers, or Texas oilmen, or aircraft manufacturers, or super-patriots, or paranoid heresy-hunters. The war, in the massive, lethal dimensions it acquired after 1964, was the work of highly educated academics and administrators, most of whom would fit rather easily the present Vice-President's notion of an "effete snob." It was not President Kennedy himself, but the men he brought to Washington as advisers and who stayed on with President Johnson—the Rusks, McNamaras, Bundys, and Rostows—who must bear major responsibility for the war and the course it took.

"The contest in Vietnam is a contest for the allegiance of the South Vietnamese. No foreign force can win that battle. That is why the root of the struggle has always been in the South. That is why the bombing has always been marginal in its final meaning; that is why the necessities of American politics now coincide with the necessities of the South Vietnamese future." That is how McGeorge Bundy, one-time close adviser to President Johnson, saw the matter in October, 1968,²⁴ by which time

206 WAR AND PEACE

he had concluded that "there is no prospect of military victory against North Vietnam by any level of U.S. military force which is acceptable," and that therefore the "burden of Vietnam" must be "lifted from our society."

Bundy was candid enough to acknowledge that "this has not always been my view," but nonetheless his recantation is oddly put. To *whom* does he wish the South Vietnamese to give "allegiance"? And are we to understand from the phrase "now coincide" that there was a time when the "necessities of American politics" did *not* coincide with the "necessities of the South Vietnamese future"? By what human calculation is bombing, and the consequent loss of life and limb, to be justified if it is "marginal in its final meaning"?

As one who until 1965 supported American intervention in Vietnam as an aggression-checking undertaking in the spirit of the United Nations Charter, I am painfully aware of the instability of individual judgment. Nevertheless, when the nature, scale and effect of intervention changed so drastically in 1965, it is more than "puzzling" (as the Senate Refugee Subcommittee put it) that virtually no one in high authority had the capacity and inclination to perceive and articulate the inevitable consequences. How could it ever have been thought that air strikes, free-fire zones and a mass uprooting and removal of the rural population were the way to win "the allegiance of the South Vietnamese"? By what mad cerebrations could a ratio of 28 to 1 between our investments in bombing, and in relief for those we had wounded and made

WAR AND PEACE 207

homeless, have even been contemplated, let alone
adopted as the operational pattern?

One may well echo the acrid French epigram,
and say that all this "is worse than a crime, it is a
blunder"—the most costly and tragic national blunder
in American history. And so it has come to this:
that the anti-aggression spirit of Nuremberg and
the United Nations Charter is invoked to justify our
venture in Vietnam, where we have smashed the
country to bits, and will not even take the trouble
to clean up the blood and rubble. None there will
ever thank us; few elsewhere that do not now see
our America as a sort of Steinbeckian "Lennie,"25
gigantic and powerful, but prone to shatter what we
try to save. Somehow we failed ourselves to learn
the lessons we undertook to teach at Nuremberg,
and that failure is today's American tragedy.

208 - Blank

# FOOTNOTES

## INTRODUCTION

1. A comprehensive review of this matter is contained in W. J. Bosch, *Judgment on Nuremberg: American Attitudes toward the Major German War-Crime Trials* (U. of N. Car. Press 1970).

2. *Pepper and Salt*, Supplementary Newsletter No. 3 (210 5th Ave., New York 10010), distributed June, 1970.

## CHAPTER 1

1. The history of American military practice with respect to the laws of war is covered in Colby, *War Crimes*, 23 Michigan Law Review 482, 606 (1925).

2. Department of the Army Field Manual FM 27-10, *The Law of Land Warfare* (1956). The 1940 edition was in effect during the Second World War.

3. G. Lowes Dickenson, *War: Its Nature, Cause, and Curse*, (1923), p. 16.

4. *Rules of Land Warfare*, War Dept Doc. No. 467, Office of the Chief of Staff, approved April 25, 1914 (U.S. Gov't Printing Office 1917), par. 9.

5. *Op. cit.* *supra* note 2, at par. 3.

## CHAPTER 2

1. *Axtell's Case*, 84 Eng. Rep. 1060 (1660).

2. Marshall's statement was made in *Little v. Bareme*, 2 Cranch 170, 179 (1804). For parallel decisions, see those of Justice Bushrod Washington in *United States v. Bright*, Fed. Cas. No. 14647 (C.C.D.Pa. 1809) and *United States v. Jones*, Fed. Cas. No. 15494 (C.C.D.Pa. 1813).

3. *United States v. Bevans*, Fed. Cas. No. 14589 (C.C.C. Mass. 1816). The case was tried in the Federal court on the jurisdictional basis that the crime occurred on the high seas. The Supreme Court reversed the conviction on the ground that Massachusetts Bay was not part

of the high seas, and therefore the Federal courts had no
jurisdiction. *United States v. Bevans*, 3 Wheat. 336
(1818).

4. *Mitchell v. Harmony*, 13 How. 115, 137 (1851).

5. Story's observation is in *Martin v. Mott*, 12 Wheat. 19, 30 (1827), and Curtis' in *Despan v. Olney*, Fed. Cas. No. 3822 (C.C.D.R.I. 1852).

6. The proceedings of the military commission in the Wirz case were published in *House Executive Documents*, vol. 8, No. 23, Serial No. 1381, 40th Cong. 2d Sess. (1868). There is a vivid contemporaneous account of Andersonville and Libby prisons in A. C. Roach, *The Prisoner of War and How Treated* (Indianapolis, 1865). The play based on the trial, by Saul Levitt, is published by Dramatists Play Service, Inc. Those interested in the subject may also want to read McKinley Kantor's novel *Andersonville*, published in 1955.

7. The British provision is in *Manual of Military Law* (1914) p. 302, par. 366; the American is in *Rules of Land Warfare* (1917) p. 130, par. 366.

8. *Deutsche Allgemeine Zeitung*, 28 May 1944.

9. The 1944 revisions of the superior orders provisions of the British and American manuals are set forth in *History of the United Nations War Crimes Commission* (HMSO 1948), p. 282. The 1940 edition of the American Army's *Rules of Land Warfare* repeated (par. 347) the provision of the 1914 manual.

10. FM 27-10, *The Law of Warfare*, p. 182, par. 509, entitled "Defense of Superior Orders."

11. FM 27-10, *supra*, p. 178, par. 501. McClellan's order is quoted in Colby, *War Crimes*, 23 Michigan Law Review 482, at 502 (1925).

12. FM 27-10 *Rules of Land Warfare* (1940) pp. 89-90, par. 358.

## CHAPTER 3

1. The quotations are from Eppstein, *The Catholic Tradition of the Law of Nations* (London 1935) p. 65. Other useful works on the relation between war and Christian

212 FOOTNOTES

4. I Trial of the Major War Criminals before the International Military Tribunal (Nuremberg, 1947), p. 223.

5. The proceedings at the first Nuremberg trial are reported in the 42-volume series (the so-called "blue series") referred to in note 4, above. The proceedings at the ensuing trials are reported in the 15-volume series (known as the "green series") entitled *Trials of War Criminals before the Nuremberg Military Tribunals (USGPO)*. A number of other important war crimes trials are reported in the 15-volume British series *Law Reports of Trials of War Criminals* (HMSO 1947-49).

6. The quotation is from the tribunal's judgment in *United States v. von Leeb, Case No. 12, vol. XI "Trials of War Criminals"* at p. 489.

7. Above, pp. 36-38.

8. This is the so-called "Barbarossa jurisdiction order," signed by Field Marshal Wilhelm Keitel on May 15, 1941, and distributed throughout the German Army on the eastern front.

9. *In re Yamashita*, 327 U.S. 1 (1946). For a critical analysis of the trial see the book by one of Yamashita's defense counsel, A. Frank Reel, *The Case of General Yamashita* (1949). For the official rejoinder, see the Memorandum "The Case of General Yamashita" by Brig. Gen. Courtney Whitney, explaining the refusal to allow Reel's book to be translated and published in Japan, on the ground that "it is essential to guard against inflammatory material designed to arouse irresponsible Japanese elements into active opposition." There is an excellent book review by Charles S. Lyon, based on both the Reel and Whitney presentations, in 50 Columbia Law Review 393 (1950). For another unsuccessful effort to obtain Supreme Court review of procedural questions in war crimes trials, see the case of Yamashita's predecessor as commander-in-chief in the Philippines. *Homma v. United States*, 327 U.S. 759 (1946).

CHAPTER 5

1. The quotations are taken from the leading collection of materials on the legality of the Vietnam War, edited

214 FOOTNOTES

1968); to the same effect see Velvel v. Johnson, 287 Fed. Supp. 546 (D.Kans.1968).

17. *United States v. Mitchell*, 386 U.S. 972 (1967).

18. *Head Money Cases*, 112 U.S. 580 (1884); *The Chinese Exclusion Case*, 130 U.S. 581 (1889); see *Reid v. Covert*, 354 U.S. 1, 18 (1957).

19. Falk, *supra* note 1, vol. 2, pp. 395-96.

20. Falk, *supra* note 1, vol. 2, p. 250.

21. Ferencz, "War Crimes Law and the Vietnam War," 17 American Univ. Law Review 403, 420 (1968).

CHAPTER 6

1. Barbara Tuchman, "End of a Dream—the United States, 1890-1902," from *The Proud Tower* (1966).

2. American operations in Quang Ngai province during the summer of 1967 are described in eye-witness terms in Jonathan Schell, *The Military Half-An Account of Destruction in Quang Ngai and Quang Tin* (1968), written shortly before the Son My incident occurred.

3. Two accounts of the Son My incidents which have been generally praised are Richard Hammer, *One Morning in the War-The Tragedy at Son My* (1970) and Seymour M. Hersh, *My Lai 4-A Report on the Massacre and its Aftermath* (1970). The narrative in the text is largely based on these two sources.

4. A useful compilation of the relevant treaties is "Treaties Governing Land Warfare, AFP 110-1-3 (Dep't. of the Air Force, 21 July 1958).

5. See, for example, the several essays and notes in Falk, *The Vietnam War and International Law*, vol. 2, pp. 361-593 (1969).

6. Lang, *Casualties of War* (1969), based on an article that appeared in *The New Yorker* on October 18, 1969.

7. Quoted in Falk, *supra* note 5 at pp. 539-40 and 547.

8. *United States v. List*, vol. XI, *Trials of War Criminals*, p. 1246; see also *United States v. Leeb*, vol. XI, id. pp. 529-32.

9. Falk, *supra* note 5, vol. 2, p. 240; see also the discussions by Lawrence Petrowski and Henry Meyrowitz, vol. 2, pp. 478-81 and 539-43.

FOOTNOTES 215

10. *United States v. List, supra* note 8 at pp. 1308-09.

11. Hammer, *supra* note 8, p. 197.

12. Falk, *supra* note 5, vol. 2, pp. 450-51 and 564. The civil trial for damages is discussed and the opinion reproduced in English in Falk and Mendlovitz, *The Strategy of World Order* (1966) pp. 307 *et seq*. The case is entitled *Shimoda v. Japan*, 355 Hanrei Jiho 17 (Dec. 7, 1963); Japan was the defendant because, as part of the peace treaty with the United States, all claims of Japanese nationals against the United States were waived.

13. See Article 33 of the Geneva Convention for the Protection of Civilian Persons, and paragraph 272 of the Rules of Land Warfare, FM 27-10.

14. Falk, *supra* note 5, at p. 863.

15. Schell, *The Military Half*, pp. 119-81.

16. 1929 Geneva Convention, Article 2; 1949 Geneva Prisoners-of-War Convention, Article 13; Law of Land Warfare, FM 27-10, p. 177.

17. Falk, *supra* note 5, at p. 378, quoting 55 Dept. of State Bulletin 336, 338 (1966).

18. The contents of this paragraph are based on the reports in *The New York Times* between July 9 and July 19, 1970, under the by-lines of Robert M. Smith, Felix Belair Jr., and Gloria Emerson, as well as press service reports carried during the same period. See also the letter dated June 11, 1970, to *The New York Times* from Don Luce, former director of International Voluntary Services in Vietnam, reporting his observations of conditions in South Vietnamese prisons.

19. The paragraphs on the Duffy trial are based on the reports in *The New York Times* between March 28 and April 5, 1970, under the by-line of Philip Shabecoff.

20. *The New York Times*, June 22, 1970.

## CHAPTER 7

1. Most of the material on the public reaction to Son My is based on Opton and Duckles, *My Lai: It Never Happened and Besides, They Deserved It* (Wright Institute, Berkeley, 1970), reproduced in abbreviated form in

216 FOOTNOTES

*The New Republic*, Feb. 21, 1970. The authors utilized other surveys by the *Wall Street Journal* and *Time* magazine.

2. *Toth v. Quarles*, 350 U.S. 11 (1955). It may be that the discharged men involved at Son My could be tried before a special "military commission," or that the Federal courts might be given jurisdiction over such cases, but there are legal problems on either hand.

3. Taylor, *Two Studies in Constitutional Interpretation* (1969), Part II: *Fair Trial and Free Press*; Taylor, *Crime Reporting and Publicity of Criminal Proceedings*, 66 Columbia Law Rev. 34 (1966).

4. *Sheppard v. Maxwell*, 384 U.S. 333 (1966).

5. *The New York Times*, March 31, 1970, pp. 1 and 4, under the by-line of Philip Shabecoff.

6. The subcommittee's report is summarized in *The New York Times* of July 15 and 16, 1970. The report itself is entitled *Investigation of the My Lai Incident*—Report of the Armed Services Investigating Subcommittee, H. Rep. 91st Cong., 2d Sess., under H. Res. 105, July 15, 1970.

7. Report of The Department of the Army Review of the Preliminary Investigations into the My Lai incident (U), vol. 1, The Report of the Investigation, 14 March, 1970.

8. Reported in the *New York Post*, Feb. 7, 1968.

9. *San Francisco Chronicle*, Dec. 31, 1968, quoted in Opton and Duckles, *supra* note 1.

10. Hammer, *One Morning in the War*, pp. 70–71.

11. *The New York Times*, Jan. 1, 1970.

12. Falk, *The Vietnam War and International Law*, vol. 2, p. 494; Kolko, *War Crimes and the Nature of the Vietnam War* (1970), citing U.S. Senate, Committee on the Judiciary, *Hearings: Civilian Casualty, Social Welfare and Refugee Problems in South Vietnam*.

13. Falk, *supra* note 12, pp. 494 and 568; Donovan, *Militarism*, USA (1970), pp. 173–74.

14. Donovan, *supra*, p. 212.

15. William R. Corson, *The Changing Nature of War* (1970).

16. *United States v. von Leeb*, vol. XI Trials of War Criminals 374.

FOOTNOTES 217

17. The initial Coburn-Cowan article entitled "The War Criminals Hedge their Bets" appeared in the *Village Voice* of Dec. 4, 1969. Mr. Hoopes's reply, "The Nuremberg Suggestion," was in the January, 1970, issue of *The Washington Monthly*, and the Coburn-Cowan reply was printed in the "letters" column the following month. Mr. Hoopes's book is *The Limits of Intervention—An Inside Account of how the Johnson Policy of Escalation in Vietnam was Reversed* (1969).

18. Hoopes, *The Limits of Intervention*, p. 51.

CHAPTER 8

1. Schlesinger, *The Bitter Heritage—Vietnam and American Democracy 1941–1966* (1967) p. 1.

2. The interview is described in extenso in *The New Yorker* of July 4, 1970.

3. See the pertinent passage in the Nuremberg "Justice Case," *United States v. Alstoetter*, vol. III Trials of War Criminals, pp. 979-82.

4. Hoopes, *The Limits of Intervention*, p. 29.

5. Hoopes, *supra*, p. 15.

6. Quoted in Donovan, *Militarism*, USA, p. 154.

7. Quoted in Schlesinger, *The Bitter Heritage*, p. 48.

8. Hoopes, *supra*, pp. 62–67 and 147.

9. Quoted from General Shoup's *Foreword* to Donovan, *Militarism*, USA, p. xiii.

10. *Supra*, p. 140.

11. Nuremberg Document NOKW-469, reproduced in part in volume XI Trials of War Criminals, pp. 831 and 1034–36.

12. Nuremberg Document NOKW-893, id. at p. 848.

13. Nuremberg Document NOKW-1487, id. at 847–48.

14. *The New York Times*, Jan. 22, 1970.

15. See, e.g., the *New York Post*, May 4, 1970.

16. *The New York Times*, Aug. 2, 1970.

17. Schell, *The Military Half*, pp. 197–198.

18. Donovan, *Militarism*, USA, pp. 178–80.

19. *Civilian Casualty and Refugee Problems in South Vietnam*, 90th Cong. 2d Sess., May 9, 1968.

218 FOOTNOTES

20. Donovan, *supra* at p. 157.

21. Falk, *The Vietnam War and International Law, vol. 2*, p. 866.

22. The passage from Vittoria is taken from Eppstein, *The Catholic Tradition of the Law of Nations*, p. 103. *Suarez On War*, section VI.

23. The reference is to District Judge Charles Wyzanski's decision in *United States v. Sisson*, 297 F. Supp. 902 (D. Mass. 1969).

24. The quotation is from his address at DePauw University, Oct. 12, 1968, reprinted in Falk, *supra* note 21, at p. 974.

25. John Steinbeck, *Of Mice and Men*, *passim*.

Index

219

Abrams, Gen. Creighton, 180

Aerial bombardment, 140-145

Aggression, prevention of, see
Tonkin Resolution

Aggression test, 74

Aggressive war, 95-97, 103, 106,
119; see also American ag-
gression, Communist aggres-
sion, Crimes against peace,
Defensive war, German ag-
gression, Italian aggression,
Japanese aggression

Alexander the Great, 60

Americal Division, see American
Military units

American aggression, 15

American atrocities, see Atrocities,
American

American Military units:

11th Brigade (Americal Div.),
127-129

3rd Marine Amphibious Force,
180

American Revolution, 21

Andersonville Prison Camp, 45-46

Andersonville war trial, 23-24

André, Maj. John, 21, 31n.

Aquinas, St. Thomas, see Thomas
Aquinas

Arab-Israeli hostilities, 99

Arnold, Benedict, 31n.

Arnold, Thurman, 95, 103

Atrocities

American, 123, 125-129, 150-153, 163-164

German, 12, 25-26, 88-90,
124, 138-139

Japanese, 90-92

Vietnamese, 123, 149-150

See also Crimes against hu-
manity

Augustine, St., of Hippo, 59-62,
73

Auschwitz Prison Camp, 25

Axis Powers, 70-75, 87n.

Barbary Wars, 105

Barker, Lt. Col. Frank A., 127-128

Bay of Pigs operation, 185

Beecher, William, 171

Beneš, Pres. Eduard, 25

Bevans, (U.S. Marine), 43-44

Bickel, Alexander, 110-111

Biddle, Atty. Gen. Francis, 75

Binh Dong, 123n., 129; see also
Son My

Bombings, see Aerial bombard-
ment

Briand, Aristide, 59, 69

British Army Field Manuals, 47-49

British military organization, see
Military organization

Bullene, Brig. Gen. Egbert F.,
181

Bülow, Gen. Karl von, 55

Bundy, McGeorge, 205

Burma, 90

Cambodia, 12-13, 106-108, 130

Casualties of war, 134

Charles I (of England), 43

Charles ("The Bold," of Bur-
gundy), 81-82

Charlotte, Grand Duchess (of
Luxembourg), 25

Churchill, Sir Winston, 25, 78

Civil War, 21, 31, 55n.

Clarke, Justice John H., 111

Coburn, Judith, 179

Communist aggression, 14

Con Son Prison, 150

Constantine (of Greece), 25, 60

Control Council Law No. 10
(1945), 81n.

Corson, Col. William R., 170-171, 173, 178, 188

Court-martial, see Military trials

Cowan, Geoffrey, 179

Crimean War, 21

Crimes against humanity, 78, 96,
186; see also Atrocities, Gen-
ocide

Crimes against peace, 76, 79, 84-89, 92, 119, 187

Criminal conduct and war, 154-182

Curtis, Justice Benjamin R., 45

Cushman, Lt. Gen. Robert E.,
180

220 INDEX

Declaration of St. James, see Inter Allied Conference on the Punishment of War Crimes

Defensive war, 106; see also Aggressive war

De Gaulle, Gen. Charles, 25

Denial of *certiorari*, 112

Deportation of Jews, 25-26

Dickinson, Lowes, 33

Doenitz, Adm. Karl, 37, 86

Donovan, Col. James A., 170-172, 198, 200, 203

Donovan, Maj. Gen. Leo, 181

Doolittle, Gen. James, 141n.

Douglas, Justice William O., 112, 114

Dresden, see Aerial bombardment

Duffy, Lt. James B., 148, 150-151, 161-163, 169

Early, Gen. Jubal, 55n.

Écér, Dr. Bohuslav, 71-72

Eisenhower, Pres. Dwight D., 106, 186-187

Ellsworth, Oliver, 105

Emerson, Gloria, 195

Falk, Richard A., 100, 118-120, 137

Far Eastern Commission, 81

Farben, I. G., Industries, 88

Felmy, Gen. Helmuth, 139

Ferencz, Benjamin, 119

Franco-Prussian War, 22, 55

Frankfurter, Justice Felix, 111

Free-fire zones (artillery), 137, 145, 147-148, 174

Free-strike zones (air), 145, 147

Gavin, Lieut. Gen. James, 140, 190, 192

Geneva Agreement (1954), see Zones

Geneva Conventions (1929, 1949), 22, 29-30, 35, 54, 57, 130-131, 133, 138, 145-146, 148-150, 165, 168; see also The Hague Convention

Geneva Declaration (1954), 97, 100-102

Geneva Rules, 36n., 47

Genocide, 31; see also Crimes against humanity

Genocide Convention, 186

German aggression, 11, 13, 85-87, 89, 192-195; see also

Crimes against peace

atrocities, see Atrocities, German

Military Penal Code (1872), 47-50

Military unit: 7th SS Panzer Grenadier Regiment, 138-139

occupation, 175-176

Supreme Court, 24

Giap, see Vo Nguyen Giap, Gen.

Glaise-Horstenau, Gen. Edmund von, 193

Goebbels, Dr. Joseph, 48

Goodwin, Richard N., 184

Gordon, Gen. John B., 55n.

Governments in exile, 25

Green Berets, 15, 164

Greene, Gen. Wallace M., 191

Greiser, Artur, 87

Grotius, Hugo, 20, 63, 73, 97, 106

Guerrilla warfare, 136-137, 144-145

Guilt reaction, 154-156, 160

Haakon (of Norway), 25

Hagenbach, Peter von, 81-82

Hague Convention (Fourth, 1907), 22-23, 29-30, 35, 132, 134, 151; see also Geneva Conventions

Hague Rules, 36n., 40, 47

Hale, Capt. Nathan, 21, 31n.

Hamilton, Alexander, 105-106

Hammer, Richard, 125, 170

Handwerk, Brig. Gen. Morris, 181

Hébert, F. Edward, 166

Hess, Rudolf, 87-88

"High Command Case" (Nuremberg), 176

Hilsman, Roger, 190

Himmler, Heinrich, 25

Hiroshima, see Aerial bombardment

Hirota, Koki, 91

Hitler, Adolf, 25, 70, 74, 85, 104, 118, 201

Hlond, August Cardinal, 25

Hoopes, Townsend, 179, 190-191

"Hostage Case" (Greece), 138-140

INDEX 221

Hostages, 55-57

Human rights, 79

Hunter, Gen. David, 55n.

Huntington, Samuel P., 147, 202

Illegal war, see Legality of war
*Independence* (ship), 43

Inter Allied Conference on the
Punishment of War Crimes
(1942), 26

International authority, see *International law*

International Control Commission,
100

International Court of Justice,
82n.

International duties, 84

International law, 80-81, 84, 92-
93, 100, 114, 118-120

Commission (1950), 97

International Military Tribunal,
*see* London Charter

Iselin, Henry, 81

Israeli-Arab hostilities, see *Arab-
Israeli hostilities*

Italian aggression, 87n.

Jackson, Justice Robert H., 11-
12, 75-76, 93, 111, 179

Japanese aggression, 85n., 87; see
*also* Crimes against peace
atrocities, see Atrocities, Japanese
courts, 141n.

Jefferson, Pres. Thomas, 105

Johnson, Pres. Lyndon B., 15,
95, 106, 140, 179-180,
183-184, 187-188, 190-
191, 205

Just and unjust wars, 58-77, 98,
115, 119

Kaiser, see William II (of Germany)

Kellogg, Frank B., 59, 69

Kellogg-Briand Pact (1928), 59,
69, 71, 74, 84, 101

Kennedy, Sen. Edward M., 198-
199

Kennedy, Pres. John F., 14, 106,
157, 205

Kennedy, Sen. Robert F., 171

Korean War, 101, 107, 186-187

Koster, Maj. Gen. Samuel W.,
127

Krupp Industries, 88

Land Warfare (rules), see U.S.
Army, Law of Land War-
fare

Lang, Daniel, 134

Laos, 108

Laws of war, 20-25, 28-35, 38-
41, 54, 83-84, 89, 133-
135, 141n., 142, 168

League of Nations, 67-70, 78

Legality of war, 99-100, 102-
107, 110-114

Leipzig (Germany) Supreme
Court (1921-22), 24

Lester, Maj. Gen. James A., 181

Levy, Dr. Howard (Capt., U.S.
Army), 15, 163-165

Lieber, Francis (Lieber Rules,
1863), 21, 33, 36n, 41, 47,
54, 57, 65, 106, 185

*Life* (magazine), 15

Lifton, Dr. Robert Jay, 171

Lincoln, Pres. Abraham, 21

Lippmann, Walter, 95

Livingston, Dr. Gordon, 171

*"Llandovery Castle" Case,"* 24

Locarno Treaty, 69

London Charter (1945), 79-81,
87n., 97, 114-116, 186

London Naval Treaty (1930), 23,
37

MacArthur, Gen. Douglas, 92,
94, 181-182

McClellan, Gen. George B., 53

McConnell, Gen. John P., 198

McKinley, Pres. William, 186

McNair, Sir Arnold, 71

McNamara, Robert, 191, 205

McNaughton, John, 180

MACV (Military Assistance Com-
mand Vietnam), 180

Marshall, Chief Justice John, 43,
105, 107

Mexican War, 21

Military Assistance Command
Vietnam, see MACV

Military attitudes, 169-171, 174
authority, 132-133

commissions, see Military or-
ganization

courts, see Military organiza-
tion

leadership, 201-202

"necessity" (rule), 34-38, 61-
62, 137, 143

orders, see Superior orders

222 INDEX

Military attitudes (Cont.)

organization, 21

trials, 158-165, see also War trials

Moore, John Norton, 101, 117

Moscow Conference, 78

“Muscatine,” 127-129

My Khe, 127-128

My Lai, 128, see also Son My
Incident Subcommittee, 166

Origen, 59

Orwell, George, 198

Oswald, Lee, 157

Nagasaki, see Aerial bombardment

National Lawyers Guild, 96

National Liberation Front (NLF),
see Vietcong

“Necessity principle”, see Military “necessity” (rule)

Neubacher, Hermann, 192-193

New York Penal Law, 98

Ngo Dinh Diem, President, 186

Nimitz, Adm. Chester W., 37

Nixon, Pres. Richard M., 106,
126, 196

Norden, Eric, 96

Nuremberg Charter, see Nuremberg principles

defense, 15, 119

principles, 95-97, 99, 109,
113-116, 118-120, 140-
141, 185-187, 207

war trials, 11-17, 27, 31, 37,
46, 55, 57, 67, 75-76, 78-
94, 103, 118, 120, 126,
139-140, 176, 179

Pact of Paris (1928), see Kellogg-Briand Pact

Pal, R. M., 85n.

Paris Peace Conference (1919),
66-67, see also Versailles,
Treaty of

“Pastoral Constitution on the
Church in the Modern
World” (1965), 74n.

Peers, Lt. Gen. William R., 166,
168, 172, 177

Persecutions, see: Human rights,
Crimes against humanity

Peter (of Yugoslavia), 25

Peters, Col. William E., 55n.

Philippines Campaign (1900),
173-174

“Pinkville,” 123n.

Political question doctrine, 109-111

Population transfers, 145-146

Presidential power (war), 104-109, 111-112, 117-118, 121

Principle of reason, see Rule of reason

Prison camps, see: Andersonville, Auschwitz, Prisoners of war sentences, 86-88, 90-92

Prisoners of war, 12, 22, 24, 26, 31n., 40, 130, 137, 141n., 148-152

Protective retribution, 54

Pufendorf, Samuel, 63

Quang Ngai Province, see Son My

Raeder, Adm. Erich, 37

Reformation, 64

Refugees, 195, 198-199, 202;
see also Deportation of Jews,
Population transfers, Senate
Refugee Subcommittee

Reprisals, 53-57, 149, 194-195

Responsibility of (war) behavior,
121, 176-182; see also Superior Orders

Retaliations, see Reprisals

Reynolds, Maj. Gen. Russel B.,
181

Roling, Bernard V. A., 85n.

Roman Catholic doctrines (war),
61-64, 72n., 74n.

Roosevelt, Pres. Franklin D., 26, 78

Rosenman, Judge Samuel, 75

Rossen, Lt. Gen. William B., 180

Rostow, Eugene V., 184, 187, 205

Rostow, Walt W., 15, 183, 187, 190, 205

Ruby, Jack, 157-158

Rule of reason, see Military “necessity” (rule)

Rusk, Dean, 14, 96, 103, 184, 205

Sakai, Gen. Takeshi, 87n.

Salisbury, Harrison, 141

Schell, Jonathan, 147, 169, 171, 174, 197-198

INDEX 223

Schlesinger, Arthur M., Jr., 183,
186

Schwarz, Pvt. Michael, 153

Scott, Gen. Winfield, 21

Seaman, Lt. Gen. Mathew O.,
167

SEATO (Southeast Asia Treaty
Organization), 15, 101, 103
108, 183

Selective Service, 202-204

Senate Refugee Subcommittee,
206

Sharp, Adm. Ulysses Grant, Jr.,
180

Shelton, Col. Robert W., 161, 163

Sheppard, Dr. Samuel H., 157

Shoup, Gen. David, 192

Son My killings, 12-13, 15, 17,
39, 53, 123-129, 132-135,
137-140, 145, 148, 152,
153-154, 162, 166-169,
177-178, 180

trials, 156-159, 163, 165-
166, 178

Southeast Asia Collective Defense Treaty, see SEATO

Southeast Asia Resolution, see
Tonkin Resolution

Southeast Asia Treaty Organization, see SEATO

Spanish-American War (1898),
56, 186

Stalin, Joseph V., 78

Stewart, Justice Potter, 112

Stimson, Henry, 75

Story, Justice Joseph, 44-45

Stuart Restoration (1660), 43

Styer, Lt. Gen. William D., 181

Suarez, Francisco, 62-63, 72-
73, 97, 203

Submarine warfare, 89

Superior Orders, 42-53

Supremacy clause (U.S. Constitution), 114-116, 118

Surratt, Mary, 21

Taft, Sen. Robert A., 14

Taney, Chief Justice Roger B.,
44, 110

"Task Force Barker," 127-129

Tertullian, 59

Thomas Aquinas, St., 61-62

Tokyo war trials, 76, 81-82, 85,
87-92, 103-104, 118-120

Tonkin Gulf, 101

Resolution (1964), 108-109,
115

Treatment of prisoners, see
Prisoners of war

Truman, Pres. Harry S., 76, 106-
107

Tu Cung, 123n., 128

Tuchman, Barbara, 124

Turkish massacres (1915), 186

Ultimatum to Vietnamese People, 144

Undeclared War (1798-1800),
107

Under-maintenance (Vietnam),
196-200, 206-207

Unjust wars, see Just and Un-
just wars

United Nations, charter, 78-80,
93, 96-97, 100, 103, 115-
116, 118, 185, 207-208

War Crimes Commission
(1944), 27, 71, 74

U.S. Army, Field Manuals, 33,
36n., 47-51, 53, 56-57

Law of Land Warfare, 145,
149, 173

Public Information Detach-
ment, 129

U.S. Congress (powers), 104-110,
114, 117-118, 121

U.S. Constitution, 98, 109-111,
114-116, 118

U.S. military organization, see
Military organization

U.S. Supreme Court, 107, 110-
118, 121, 156-157

Vattel, Emmerich de, 63, 73

Versailles, Treaty of, 67

Vietcong, 102, 126-132, 136-
137, 144-146, 169-171

Military unit: 48th Local
Force Battalion, 127

Vietnam War, 11, 15, 17, 32,
38, 52, 54-55, 80, 94-121,
126-153, 183-207

American involvement, 183-
207

cost, 198-199

Vietnamese atrocities, see Atrocities, Vietnamese

war crimes, see War crimes,
Vietnamese

224 INDEX

Vitoria, Francisco de, 62, 73

Vo Nyuyen Giap, Gen., 135, 137

Wallace, George, 154

Wallace, Maj. Gen. Lew, 45-46

War behavior, see Responsibility
of (war) behavior

War crimes, 19-41, 79, 94, 96,
111

numbers, 28

Vietnamese, 123, 26, 130,
134, 149-153

War laws, see Laws of war

War of aggression, see Crimes
against peace

War trials, see: Andersonville;
German Supreme Court;
Nuremberg; Tokyo

Warren Commission, 156-157

Washington, Pres. George, 21

Wechsler, Herbert, 110-111

Weichs, Field Marshal Maximilian
von, 192

Westmoreland, Gen. William,
168, 180-181, 191

Whitworth, William, 184

Wilhelmina (of the Netherlands),
25

William II (of Germany), 67n.

Winder, Gen. John H., 46, 83

Wirz, Maj. Henry, 24, 45-46,
81-83

Wolff, Christian, 63

World War I, 55, 66-68

World War II, 70-71, 74, 118,
155, 175-176

Wright, Lord (of Durley), 72

Wyzanski, Charles, 113

Xom Lang, 123n., 128-129; see
also Son My

Yamashita, Gen. Tomayuki, 53,
91-92, 94, 181-182

Zones (Geneva Agreement, 1954),
102