134 WAR CRIMES IN VIETNAM

If the more conservative view that the laws of war do not apply to American-South Vietnamese relations generally is taken, then one must fall back on the orthodox distinction between “friendly” and “enemy” territory. If an American soldier rapes and murders a South Vietnamese girl in Saigon, it is a crime punishable by court-martial under the articles of war, but not a war crime. The terrible episode poignantly described by Daniel Lang in “Casualties of War,” involving the American patrol that kidnapped a South Vietnamese girl to serve as luggage-carrier and lust-gratifier, and then murdered her, was apparently not a war crime, for the same reasons.⁶

But Son My was in an area regarded as a Vietcong stronghold, and the hamlets assaulted were thought to be Vietcong military bases. The troops went in expecting to encounter resistance, and under orders to destroy the habitations and deal ruthlessly with any resistance. It would be highly artificial to say that this was not “hostile” territory with the meaning of the Hague Convention, or to question the applicability of the laws of war to the events of March 16, 1968, at Son My. What, then, were the applicable laws?

The presence of infants and the aged, as well as many women, among those killed at Son My underlined the horror of the episode, but is not directly relevant to the legality of what was done. It is sad but true that the weak and helpless are not exempt

⁶ The crime would also be punishable under Vietnamese law, but Americans in South Vietnam, under the applicable assistance treaties, are immune from Vietnamese criminal process.

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from the scourge of war. Indeed, they are likely to be the first to succumb to the starvation and other deprivations that are the consequence and, indeed, the purpose of an economic blockade. In this day and age they are at least as often the victims of aerial bombardment as are regular troops. The death of an infant in consequence of military operations, therefore, does not establish that a war crime has been committed.

All this is as true in Vietnam as in any other war. Furthermore, in Vietnam the weaker inhabitants are not only victims, but often also participants. It is not necessary to be a male, or particularly strong, to make a booby-trap, plant a mine, or toss a hand grenade a few yards. American soldiers are often the losers in these lethal little games played by those who appear helpless and inoffensive. Furthermore, these actions are not occasional aberrations; on the contrary, they are basic features of Vietcong strategy. As the leading military figure of North Vietnam, General Vo Nguyen Giap, has put it:

> The protracted popular war in Vietnam demanded ... appropriate forms of combat: appropriate for the revolutionary nature of the war in relation to the balance of forces then showing a clear enemy superiority. ... The form of combat adopted was guerrilla warfare ... each inhabitant a soldier; each village a fortress. ... The entire population participates in the armed struggle, fighting, according to the principles of guerrilla warfare, in small units. ... This is the fundamental content of the war of people.⁷

136 WAR CRIMES IN VIETNAM

Now, guerrilla warfare is not intrinsically unlawful, but as waged by the Vietcong it is undeniably in violation of the traditional laws of war and the Geneva Conventions, based as they are on the distinction between combatants and noncombatants. Combatants need not wear uniforms (which the North Vietnamese generally do) the conventional four requirements; to wear "a fixed distinct nizable at a distance"; to "carry to "conduct their operations in a laws and customs of war." The VC disregard at least the second and in response to the Red Cross that they were not bound by the conventions, on the grounds that they were not bound by the conventions, and that the conventions contained no "action" and the need for "action" of armed forces."

Like a spy, a guerrilla may be a hero, but if he engages in combat without observing the requirements, he violates the laws of war and is subject to punishment, which may be the death penalty. Nor is there any special court for juveniles; the small boy who throws a grenade is as "guilty" as the able-bodied male of military age. This may seem a harsh rule, but it is certainly the law, and its continuing validity was reaffirmed in several of the Nuremberg trials. As one of the tribunals put the matter:

> We think the rule is established that a civilian who aids, abets, or participates in the fighting

136 WAR CRIMES IN VIETNAM

Now, guerrilla warfare is not intrinsically unlawful, but as waged by the Vietcong it is undeniably in violation of the traditional laws of war and the Geneva Conventions, based as they are on the distinction between combatants and noncombatants. Combatants need not wear uniforms (which the North Vietnamese generally do) but must observe the conventional four requirements: to be commanded "by a person responsible for his subordinates"; to wear "a fixed distinctive emblem recognizable at a distance"; to "carry arms openly"; and to "conduct their operations in accordance with the laws and customs of war." The Vietcong commonly disregard at least the second and third provisions, and in response to the Red Cross inquiry, declared that they were *not* bound by the Geneva Conventions, on the grounds that they were not signatories and that the conventions contained provisions unsuited to their "action" and their "organization ... of armed forces."

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is liable to punishment as a war criminal under
the rules of war. Fighting is legitimate only for
the combatant personnel. . . . It is only this
group that is entitled to treatment as prisoners
of war and incurs no liability beyond detention
after capture or surrender.⁸

However, Richard Falk and other international lawyers have strongly pressed the argument that an insurgent revolutionary movement cannot possibly comply with the rules for the identification of combatants, or other laws of war, especially when confronting a foe so vastly superior in mobility and firepower as the United States. “I would suggest,” Falk writes, “that the insurgent faction in an undeveloped country has, at the beginning of its struggle for power, no alternative other than terror to mobilize an effective operation.”⁹

This is, of course, the familiar argument of “military necessity” which we have already examined. If emblems and the other indicia of combatant status are to be discarded and the whole population engaged in combat, as Giap describes, then the same argument of necessity may justify the power against whom this type of war is directed in resorting to hitherto unlawful means to counter the guerrilla forces. As will shortly appear, this point may have some relevance to the lawfulness of the population transfers and “free-fire zones” that have become a common feature of our military policy in Vietnam.

But however far the “necessity” argument be
stretched, it cannot justify what was done at Son

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My. Given the history and location of the village,
the Americans might have had reason to suspect
that many of the inhabitants were sympathetic to
the Vietcong. There has been no suggestion, how-
ever, that there was reason to believe that any
particular individual had engaged in hostile con-
duct. Even had there been such grounds, the
slaughter of all the inhabitants would have been
an unlawful and atrocious reaction; the Geneva
Conventions are explicit that persons suspected of
violating the laws of war shall "be treated with hu-
manity" and not punished without trial and oppor-
tunity to contest the charge. And while small boys
can toss grenades, infants in arms cannot, and were
nonetheless killed along with the rest.

Painfully anticipatory of Son My was an action of
German troops during the occupation of Greece,
described in the Nuremberg tribunal's judgment in
the so-called "Hostage case":

On 5 April 1944, the notorious "blood bath" at Klissura occurred. The facts are: On the date in question an engagement between [guerrilla] bands and German troops occurred about 2½ kilometers outside the village of Klissura. After the retreat of the bands, the troops moved into the village and began searching for evidence of band support. None was found. Later in the afternoon, units of the 7th SS Panzer Grenadier Regiment entered the village and began almost immediately to kill the inhabitants. At least 215 persons, and undoubtedly more, were

WAR CRIMES IN VIETNAM 139

killed. Among those killed were 9 children less than 1 year old, 6 between 1 and 2 years of age, 8 between 2 and 3 years, and 4 between 4 and 5 years. There were 72 massacred who were less than 15 years of age, and 7 people in excess of 80 years. No justification existed for this outrage. It was plain murder.¹⁰

On the basis of this and other episodes involving troops under his command, and his "indifference to these unjustified and brutal murders," General Hel-muth Felmy was sentenced to a 15-year prison term. The three-member tribunal comprised judges of the Supreme Courts of Iowa and Nebraska, and a Michigan attorney who had served on the United States Supreme Court's Advisory Committee on Rules of Criminal Procedure.

I have dealt with the Son My killings at length because of the scale of the disaster, the extensive though belated publicity it has received, and the fact that it is the only mass killing of the Vietnam war that our Government has acknowledged as a crime. It has been said that "the massacre at Son My was not unique,"¹¹ but I am unaware of any evidence of other incidents of comparable magni-tude, and the reported reaction of some of the sol-diers at Son My strongly indicates that they regarded it as out of the ordinary. There have, how-ever, been numerous indications that our troops have killed many other civilians under parallel cir-cumstances, and equally in violation of the laws of war. Obviously, this state of affairs poses questions

140 WAR CRIMES IN VIETNAM

far more searching than the criminal liability of the
soldiers who did the shooting

In February, 1965, the U.S. Air Force began a program of aerial bombardment of Vietnam that lasted, with President Johnson announcing a famous television address not seek re-election. From Vietnamese branded the raft 1965 and 1966 repeatedly tured American pilots as Nuremberg precedents.

Home-grown critics have described sharp; Lt. Gen. James Gavin, for one, described the bombing as “militarily unsound and morally wrong.” Whether or not the bombing of North Vietnam was “militarily unsound” is a debatable but not a legal issue, and General Gavin did not make it clear whether he believed the attacks to be “morally wrong” *because* “militarily unsound,” or whether he would regard them as morally repre-hensible even if militarily effective. Nor did the North Vietnamese go beyond a general invocation of “Nuremberg” to clarify the basis of their threat-ened criminal charges against the pilots.

In fact, as already remarked, the Nuremberg and Tokyo judgments are silent on the subject of aerial bombardment. Whatever may have been the laws of war before the Second World War, by the time the war ended there was not much law left. Since both sides had played the terrible game of urban destruction—the Allies far more successfully—there

140 WAR CRIMES IN VIETNAM

In February, 1965, the U.S. Air Force began a program of aerial bombardment of Vietnam that lasted, with President Johnson announcing a famous television address that not seek re-election. From 1965 and 1966 repeatedly characterized American pilots as "Nuremberg precedents."

Home-grown critics have been sharp; Lt. Gen. James Gavin, for one, described the bombing as "militarily unsound and morally wrong." Whether or not the bombing of North Vietnam was "militarily unsound" is a debatable but not a legal issue, and General Gavin did not make it clear whether he believed the attacks to be "morally wrong" *because* "militarily unsound," or whether he would regard them as morally repre-hensible even if militarily effective. Nor did the North Vietnamese go beyond a general invocation of "Nuremberg" to clarify the basis of their threat-ened criminal charges against the pilots.

140 WAR CRIMES IN VIETNAM

far more searching than the criminal liability of the
soldiers who did the shooting at Son My.

In February, 1965, the United States began a pro-
gram of aerial bombardment of targets in North
Vietnam that lasted, with interruptions, until
President Johnson announced its cessation in the
famous television address declaring that he would
not seek re-election. From the start the North
Vietnamese branded the raids unlawful, and during
1965 and 1966 repeatedly threatened to try cap-
tured American pilots as war criminals under the
Nuremberg precedents.

Home-grown critics have been almost equally
sharp; Lt. Gen. James Gavin, for one, described
the bombing as "militarily unsound and morally
wrong." Whether or not the bombing of North
Vietnam was "militarily unsound" is a debatable
but not a legal issue, and General Gavin did not
make it clear whether he believed the attacks to be
"morally wrong" *because* "militarily unsound," or
whether he would regard them as morally repre-
hensible even if militarily effective. Nor did the
North Vietnamese go beyond a general invocation
of "Nuremberg" to clarify the basis of their threat-
ened criminal charges against the pilots.

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was no basis for criminal charges against Germans or Japanese, and in fact no such charges were brought.*

In the winter of 1966, Harrison Salisbury's reports from North Vietnam raised a storm of criticism of our bombing. In retrospect, this marked public re-action seems more significant than the content of his dispatches which, while graphically describing the extent of the physical damage, fell far short of demonstrating any intent to cause civilian casual-ties. After the experience of the Second World War one might have supposed it to be common knowl-edge that heavy bombing near populated areas—even if strictly military objectives are targeted—inevitably kills people and destroys their dwellings. That Salisbury's reports came as such a shock can only be explained by forgetfulness and wishful thinking, fostered by benighted Pentagon publicity that sought to convey that our bombs are destruc-tive of North Vietnamese bridges, factories, and gunsites, but harmless to human beings.

Others who have visited North Vietnam have remarked on the prevalence of bomb damage in rural areas apparently remote from any worthwhile

* In consequence of a curious course of history, only Japanese courts have ever considered the legality of aerial bombardment. In Aug., 1942, apparently in reaction to Gen. James Doolittle's famous carrier-launched raid over Japan the previous April, Japan passed a law for the punishment of enemy aviators who bombed illegal targets. A number of Doolittle's flyers were captured by the Japanese, and executed pursuant to this law. The trials appear to have been *pro forma*, and after the war several Japanese officers were convicted by the Americans of war crimes in that they had executed the pilots without a *bona fide* trial.

In 1963, a Tokyo civil court rendered judgment in a suit for dam-
ages brought by survivors of the Hiroshima and Nagasaki bombings.
The court denied recovery, but characterized the atomic bombings
as "contrary to the fundamental principles of the laws of war."¹²

142 WAR CRIMES IN VIETNAM

targets, and reported the use of antipersonnel bombs. It is difficult to assess these strictures. Anti-personnel bombs would be suitable for use against gunsites or other military locations. Things do not look the same from a jet bomber as they do on the ground, and the possibility of error is very great. Given the state of aerial warfare to which we were brought by the Second World War, in any event, I can see no sufficient basis for war crimes charges based on the bombing of North Vietnam. Whatever the laws of war in this field *ought* to be, certainly Nuremberg furnishes no basis for these accusations.

If the silence of Nuremberg answers no questions about what "ought" to be the law, it certainly asks them, and these unanswered questions are especially relevant to American bombing policies not in North, but in South Vietnam.

Is there any significant difference between killing a babe-in-arms by a bomb dropped from a high-flying aircraft, or by an infantryman's point-blank gunfire? As we have seen, by common practice of the antagonists in the Second World War massive aerial bombardment of population centers, for the purpose of destroying habitations and killing or terrorizing the population, became an accepted part of "strategic air warfare." If that is to be tolerated under the customary law of war, would that have justified Allied ground forces in entering German and Japanese towns with guns blazing, and killing off the infants who survived the bombing? Few would support such a proposition.

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tion, but the distinction is seldom articulated other
than by describing the aviator's act as more "im-
personal" than the ground soldier's.

This may be psychologically valid, but surely is
not morally satisfactory. The answer, if there is
one, must be found in a rule of reason, closely
related to military necessity. The Allied aviator over
Berlin and the infantryman occupying a German
town were in quite different situations. The aviator
was attacking a functioning part of the German
war machine with a weapon that could not dis-
criminate among those in the target area, any more
than could the captain of a ship participating in
a naval blockade. The soldier was part of a force
occupying conquered territory, and was in a posi-
tion to observe and discriminate among the inhabi-
tants and fulfill his military functions without
shooting babes-in-arms.

An important ingredient of this principle of rea-
son and necessity is proportion: The military end
sought should be sufficient to warrant the suffering
and destruction inflicted. To a degree this rule of
proportion was observed during the Second World
War. Oxford and Cambridge were not bombed;
neither was Heidelberg, and it is a terrible memory
that we did not stay our hand at Dresden, when
the war was as good as won. The rights and wrongs
of Hiroshima are debatable, but I have never
heard a plausible justification of Nagasaki. It is
difficult to contest the judgment that Dresden and
Nagasaki were war crimes, tolerable in retrospect
only because their malignancy pales in comparison
to Dachau, Auschwitz and Treblinka.

["144 WAR CRIMES IN VIETNAM", "These reflections have taken us away from Viet-
nam where, despite the enormous tonnage of bombs\ndropped, there have been no urban holocausts. The\nmassive bombardments by the B-52's have been\nmainly in rural and wooded areas, directed against\nsuspected enemy troop concentrations. But in South\nVietnam there has been a great deal of aerial ac-\ntivity on our part which does not fit this pattern at\nall, and that comes much closer to the situation of\nthe ground soldier. Indeed, most of these aerial ac-\ntions are carried out in close concert with ground\nforces, and are part of a single joint operation.", "A great many of these actions involve the de-\nstruction of hamlets from which a sniper bullet has\nbeen fired, or a shot has been fired at an American\nhelicopter, or near which a mine or booby trap has\nexploded, or even which are merely suspected of\nhaving harbored Vietcong. A United States Marine\nCorps \"Ultimatum to Vietnamese People\" declared\nthat \"The U.S. Marines will not hesitate to destroy\nimmediately, any village or hamlet harboring the\nVietcong,\" and another Marine leaflet informed the\ninhabitants that their village \"was bombed because\nyou harbored Vietcong\" and \"will be bombed again\nif you harbor Vietcong in any way.\"", "The by now voluminous reportorial literature on\nthe Vietnamese war leaves little doubt that air\nstrikes are routinely directed against hamlets and\neven single habitations on the basis described\nabove, in reliance on information of varying re-\nliability. Obviously, these tactics are a response to\nthe nature of guerrilla warfare, and the difficulty of"]

WAR CRIMES IN VIETNAM 145

sifting out the "enemy" in a society where there are many shades of inimical activity, and friend and foe are not readily distinguishable. Making full allowance for these difficulties, however, it is clear that such reprisal attacks are a flagrant violation of the Geneva Convention on Civilian Protection, which prohibits "collective penalties" and "reprisals against protected persons," and equally in violation of the Rules of Land Warfare.13 Son My, after all, was suspected of harboring the Vietcong, and if (as has been seen) it was nonetheless a war crime to round up the inhabitants and shoot them without trial, it would be equally criminal to have killed them by a surprise air attack.

Even more ominous problems are created by the so-called "free-fire" (artillery) or "free-strike" (air) zones that have been a frequent means of dealing with the guerrilla problem. The basic theory of this technique is that since the guerrillas live among the rural population and are difficult to distinguish, the thing to do is to remove the rural population, leaving the Vietcong isolated and exposed. Proponents of the technique often refer to Mao Tse-tung's figure of speech about guerrillas as fish, and the people as the water in which the fish swim. To catch the fish, remove the water. Q.E.D.

The method of these operations is to select an area where the Vietcong are thought to be strong, and saturate it with ground troops brought in by helicopter, with strong air support. The villagers are evacuated to refugee camps, more or less forcefully, and the homes, livestock, and all useful appurtenances destroyed, so as to render the area at