Crimesof War

In the mid-1960s, when I was covering the war in Vietnam for the Associated Press, U.S. commanders were issued wallet-size cards bearing the warning to “use your firepower with care and discrimination, particularly in populated areas.” Often, these cards ended up in a pocket of a pair of tropical fatigues, where they remained, ignored, for the duration of the bearer’s tour of duty.

The intention of the Department of Defense in issuing the cards was to help prevent jittery U.S. soldiers from mistakenly, or intentionally, declaring a suspect village a “free fire zone,” then destroying it and its residents. All too often, postmortem investigations revealed that such zones had been peaceful and should not have been assaulted. This type of incident with its attendant hostile publicity—My Lai was perhaps the most infamous, if not necessarily the most egregious—was a recurring nightmare of the military high command and a succession of U.S. administrations.

But the cards only served to accent official naiveté. In reality, U.S. troops in Vietnam seldom knew with any certainty which villages were friendly, siding with the Americans and their Saigon-based allies, and which supported the Hanoi-backed Viet Cong Communist guerrillas.

The practice of establishing free fire zones was instituted because many villages in what was then South Vietnam willingly provided safe haven to Viet Cong fighters. Some, by contrast, were forcibly occupied by marauding bands of guerrillas, who used the villages for cover. Many more were devotedly anti-Communist. Yet, the American forces often had fundamental difficulty in distinguishing among any of these villagers. The fact that the guerrillas commonly dressed in black cotton pajama-style outfits, like those worn by most Vietnamese peasants, served only to heighten the confusion.

But despite the GIs’ confusion, international law enjoins armies to avoid targeting any but military objectives and assures protection to civilians, in almost any circumstance. Free fire zones as defined by Department of Defense doctrine and the rules of engagement are a severe violation of the laws of war for two reasons. First, they violate the rule against direct attack of civilians by presuming that after civilians are warned to vacate a zone, then anyone still present may lawfully be attacked. The rule prohibiting direct attacks on civilians provides no basis for a party to a conflict to shift the burden by declaring a whole zone to be “civilian free.” And second, they violate the rule against indiscriminate attack by presuming without justification in the law that warning civilians to leave eliminates the legal requirements to discriminate in targeting its weapons.

Where the protection of the Geneva Conventions does not provide a mantle to civilians is when they take “a direct part in hostilities.” There were, of course, occasions when Vietnamese civilians directly attacked U.S. troops, but those which drew the attention of news reporters were overwhelmingly those in which a village was labeled a free fire zone and innocent lives were taken in outbursts of indiscriminate fire and brutality.

Faced with this negative coverage and with severe difficulty in enforcing international laws limiting the imposition of free fire zones, as well as other elements of the rules of engagement, the Pentagon over time added more directives to its pocket cards: a village could not be bombed without warning even if American troops had received fire from within it; a village known to be Communist could be attacked only if its inhabitants were warned in advance; only once civilians had been removed could a village be declared a free fire zone and shelled at will.

According to an article by Maj. Mark S. Martens of the U.S. Army’s Judge Advocate-General’s Corps and a distinguished graduate of the U.S. Military Academy, Oxford University, and Harvard Law School, all these rules were “radically ineffective.” Often they were simply ignored. In some cases, illiterate peasants couldn’t understand leaflets dropped to warn them that their villages would soon become a free fire zone. In other cases, hurried, forcible evacuations left large numbers of defenseless civilians behind, to be killed by bombing, shelling, small arms assaults, or burning. “The only good village,” went one bit of cynical GI wisdom, “is a burned village.”

Ineffective efforts to rein in the GIs’ propensity to create free fire zones in Vietnam resulted in a sense among many Vietnamese as well as Americans that U.S. forces were undisciplined. More important, perhaps, the widely touted grand plan to capture the “hearts and minds” of the Vietnamese was immeasurably diminished by the perception—let alone the outbreaks of reality—that Americans did not value Vietnamese lives.

Toward the end of the 1960s, the term free fire zone itself was dropped from the U.S. military lexicon in no small part because that doctrine embraced actions that the United States today would regard as illegal. Subsequent U.S. military manuals and rules of engagement, whether for ground, air, or naval forces, tend to track quite closely with the central principle of international humanitarian law on civilian immunity and the prohibition on the targeting of civilians.