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

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.* 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 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-

* 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.

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
uneasing 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. . . .<sup>20</sup>

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

(LC)

202 WAR AND PEACE

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

There are, to be sure, those who are able to re-
gard the political consequences of American mili-
tary operations in Vietnam as desirable. "In an ab-
sent-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 vic-
tory nor in the esoteric doctrines of counterinsur-
gency warfare. It is instead forced-draft urbaniza-
tion 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 recog-
nizes, 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 ur-
banization and modernization" is a euphemism to
end all euphemisms, fit to be bracketed with an
American general's reported and less elegant judg-
ment: "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, "un-
just"—whether because we had no right to inter-

WAR AND PEACE 203

vene in the first place, or because, in Colonel Donovan'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 international standards binding on individuals?

The Spanish theologians had a categorically affirmative 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 authorize 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 statute 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 limited forces for limited objects with no likelihood of a battlefront within this country and without a declaration of war"), Congress cannot constitutionally 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 blun-
der 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

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

FOOTNOTES 213

by Richard Falk: *The Vietnam War and International Law*, 2 vol. (Princeton U. Press 1968).

2. The quotation from Eric Norden is from an article in *Liberation* (Feb. 1966) reprinted in Raskin and Fall, *The Vietnam Reader* (1967) pp. 432–33.

3. *International Conference on Military Trials* (USGPO 1947) pp. 294, 328, and 375.

4. U.N. Document A/CN. 425, dated 26 April, 1950.

5. New York Penal Law, Sections 35.15, 35.20, and 35.25; see also Model Penal Code of the American Law Institute, Sections 3.04, 3.05, and 3.06. Of course, force may also be used to enforce the law itself, or in loco parentis.

6. Falk, *supra* note 1, vol. 2, pp. 254–56.

7. Falk, *supra* note 1, vol. 2, p. 1069.

8. There is an excellent discussion of this and related questions in "Congress, the President, and the Power to Commit Forces to Combat," in 18 Harvard Law Review 1771 (1968). Marshall's comment is from his opinion in *Talbot v. Seeman*, 5 Cranch 1 (1801).

9. 54 Dept. of State Bulletin 474 (1966), reprinted in the Congressional Record, vol. 112, No. 43 (March 11, 1966). The view so stated is in line with President Johnson's own statement at a press conference on Aug. 18, 1967, and Under Secretary of State Nicholas Katzenbach's contemporaneous statement to the Senate Foreign Relations Committee. Falk, *supra* note 1, vol. 1, p. 711.

10. *Youngstown Sheet & Tube Co. v. Sawyer*, 343 U.S. 579 (1952).

11. *Luther v. Borden*, 7 How. 1, 42 (1849).

12. Wechsler, *Principles, Politics and Fundamental Law (1961) pp. 11–13*; Bickel, *The Least Dangerous Branch (1962) pp. 69–70*.

13. *Baker v. Carr*, 369 U.S. 186 (1962).

14. The two cases quoted are *Oetjen v. Central Leather Co.*, 246 U.S. 297 (1918) and *Johnson v. Eisentraeger*, 339 U.S. 763 (1950).

15. *Mora v. McNamara*, 389 U.S. 934 (1967).

16. *United States v. Sisson*, 294 Fed. Supp. 511 (D.Mass.)

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

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 Ag-
gressive 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.

Écier, 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 Ge-
neva 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, 103f 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 Unjust 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 Detachment, 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