Did Bob Kerrey Violate the Laws of War? We initiate this online discussion to explore the legal issues surrounding what happened one night thirty-two years ago in Vietnam when American soldiers under Bob Kerrey’s command killed unarmed civilian women, children and elders. Kerrey has said that he was ignorant of the laws of war and believed that, on the night in question, he was giving a legitimate order. The controversy provoked by Kerrey’s revelations, and by the conflicting recollections of the members of his squad, has been heated. Crimes of War initially responded by asking four experts to interpret the laws of war that applied at the time of the incident. [Our Special Report] Now we open the discussion for other points of view. We hope that civilians and soldiers, Americans and Vietnamese, as well as individuals from all over the world will participate. Legal experts will be invited to clarify points of law. The online discussion is moderated by H. Wayne Elliott, a retired lieutenant colonel for the United States Army and a former chief of the international law division at the Judge Advocate General's School, U.S. Army. Ground rules: Comments, questions, and testimony must be civil and may be edited for clarity and brevity. Along with your comments please provide your name, e-mail address and country of residence. Responses: From: Discussion moderator - H. Wayne Elliott Date: June, 22 2001 It might help keep the discussion on track to review what the 1949 Geneva Conventions require where incidents such as the one attributed to Bob Kerrey are concerned. Killing unarmed POWs or protected civilians is a grave breach of the Geneva Conventions. In an article common to each of the four Conventions a requirement is set out to "search for persons alleged to have committed, or ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts." Article 129, GPW. But, of course, there needs to be some basis for the allegation of a grave breach. In this case, at least one member of the team has made the allegation. But other members have disputed the details. Were the members of the team still in the military, we could expect that the military would be conducting an in-depth review of the operation. But, practicality has to enter into the discussion and the process. The incident, if it happened as has been alleged, happened over thirty years ago. Finding hard evidence to support any sort of prosecution at this point may well be impossible. It is important to note, though, that any defense of "I did not know the law or the rules" will very likely fail. If this incident is determined to be something less than a grave breach of the Geneva Conventions, then the Conventions require that the United States "take measures necessary for the suppression of all acts contrary to the provisions" of the Conventions. Artilce, 129, GPW. These measures might well include increased training and dissemination of the facts and issues in the incident as part of that training. That has most assuredly been one result of the media exposure given to this incident. From: Roger William Bach Date: June 13, 2001 I may appear to be answering a question with a question. The short answer is that the real war criminals were the politicians and their close advisors were the real war criminals, even if we take into account the paranoic thinking of the cold war, still, they knew at the time that what they were doing was wrong. That is why they tried to keep so much of it secret. Those who obeyed orders or followed the 'modus operandi' of the military in the field still live with the nightmare of what they participated in. My Lai could not have been an isolated incident, it must have been one of hundreds of similar incidents. But spare a thought for those who ordered the carpet bombing of Laos and Cambodia - where the bombers could not even see their targets, but would have known that there would inevitably be civilian villages below them. People like Kissinger, Nixon, McNamara,Colby etc live and die in peace as though they have no conscience and case to answer. I have spent the past eleven years researching the role played by SEATO allies Britain, Australia and New Zealand in the CIA's Secret War in Laos. My web site address is http://www.angelfire.com/wi/poetryantiwar/index.html I would welcome any discussion about this so-far unacknowledged involvement in activities that violated every convention of war. From: Christoph Lampe Date: June 13, 2001 I feel a little uneasy about the direction in which this discussion is heading. Why is everyone just talking about the laws of war? This is very much a moral debate. Probably Mr. Kerrey didn't know the rules of proper conduct in armed conflict while he was a member of the armed forces (which, if true, is alarming to those who believe that soldiers receive COMPLETE training when they join the armed forces...), but is that really necessary?? We all have received some kind of moral education. I've been told at home when I was a schoolboy not to beat up weaker boys. I agree that a military operation is different to a day at school (at least it should be), but ignorance of the laws of war can be no excuse for an order given that breaches even a child's moral code. From: Kevin Thoroughman Date: June 04, 2001 I was wondering if their is an actual declaration or set of rules and guidlines in war crime. Sort of like the war crime 10 commandments, what soldiers can or cant do. if so can you email me a link or where i can find it ASAP..I have a big term paper due over this subject and your web site has been the greatest so far. From: Jonathan Huston A response to Lou Marano‘s article International Justice Program Lawyers Committee for Human Rights The International Criminal Court is not about Bob Kerrey. It is about the Pol Pots and the Saddam Husseins of the world who commit atrocities but escape punishment because the justice systems of their countries (to the extent that they exist) condone their acts. Far from targeting American service members, the International Criminal Court can help safeguard their lives and dignity by enforcing established rules of war that protect military personnel in conflict situations. Clear, enforceable rules make the commission of war crimes and other atrocities less likely. When atrocities do occur, they must be dealt with promptly in a principled, transparent, and independent manner. The International Criminal Court calls on national authorities to apply internationally accepted rules to armed conflict, and only intervenes where national authorities are unwilling or unable to do so. The United States should demonstrate its faith in our military justice system by joining our NATO allies in supporting the International Criminal Court. The International Criminal Court does not conflict with the interests of the United States or of American servicemembers. Rather, it reinforces the rules of war that govern the U.S. armed forces and helps ensure their respect worldwide. Civilization: Bob Kerrey‘s “war crimes“ By Lou Marano Date: May 22, 2001 If Bob Kerrey's commando raid into a Mekong Delta village in 1969 has any lasting benefit, it will be that the U.S. Senate never ratifies the International Criminal Court treaty. Context is everything in "war crimes." But context is circumstantial by definition, and events are interpreted according to the passions or indulgence of the victors. Moreover, no defendant in an international criminal court is ever judged by a jury of his peers, violating one of the basic principles of English Common Law. With only eight hours to go before the midnight deadline last New Year's Eve, Clinton administration officials signed the treaty establishing the ICC at U.N. headquarters in New York City. On Monday, Croatia became the 32nd country to ratify the treaty, which must be adopted by 60 states in order to take effect. After 28 more nations ratify the ICC treaty, signatories are expected to assume that it applies universally. A State Department official, who requested anonymity, said Tuesday that the treaty is under high-level policy review and that the Bush administration has no intention of putting it before the Senate in its current form. But administrations come and go; we need consistency over the long haul. It is true that the ICC's jurisdiction depends on sovereign state acceptance of its authority. It is also true that if the sovereign state makes an investigation in good faith and finds no grounds to proceed, the matter is dropped. But who defines "good faith," and what if foreign jurists were to decide that the United States should investigate a matter Americans don't believe should be investigated? Further, foreign powers may appeal the decisions of sovereign nations to an ICC arbitration panel, which might decide that a U.S. investigation was not undertaken in good faith, but rather was a cover-up and a sham. Then, as far as the world is concerned, the ICC's jurisdiction would breach America's borders. At an ICC tribunal, Americans who acted in extremis would be judged by those not necessarily sympathetic to the United States or its foreign policies and who cannot be expected to give someone like Kerrey the benefit of the doubt. A World War II memoir illustrates why Americans should be judged in the American context. Charles B. MacDonald commanded infantry companies in Europe from early October 1944 until VE Day. His account of the experience, titled "Company Commander," was first published in 1947. It has been available in paperback since 1978. In his preface, here is how MacDonald described the men now being celebrated for having fought a sanitized version of what has come to be known as "the good war:" "The characters in this story are not pretty characters. They are not even heroic, if a lack of fear is a requisite for heroism. They are cold, dirty, rough, frightened, miserable characters. But they win wars." On Jan. 17, 1945, MacDonald's men attacked a position near Iveldingen, Belgium, and captured a blinded German soldier who spoke good but stilted English. A request for a cigarette infuriated an American guard, who kicked the prisoner. MacDonald ordered the guard and another man to take the German to the rear, but the two GIs returned too soon to have accomplished that task. In his book, MacDonald reconstructed the ensuing conversation. "Did you get him back OK?" I asked. Yessir," they answered, and turned quickly toward their platoons. "Wait a minute," I said. "Did you find A Company? What did Lieutenant Smith say?" The men hesitated. One spoke out suddenly. "To tell you the truth, Cap'n, we didn't get to A Company. The sonofabitch tried to make a run for it. Know what I mean?" "Oh, I see," I said slowly, nodding my head. "I see." A few hours later, MacDonald was shot in the leg and evacuated. He returned to the front early in March. In the Rhineland on March 24, MacDonald's company was assaulting the German village of Bendorf-Sayn, its third objective of the morning, when his battalion radioed an urgent order to change the direction of the attack. One of MacDonald's platoons, under the command of a sergeant, found it difficult to disengage from a firefight. "We've got three prisoners in the basement of a house," (the sergeant) said (over the radio), "and we have to cross 100 yards of open field to get back out. We'll never make it with the prisoners." "Roger," (MacDonald) answered. "Do what you can." When the tired and dusty platoon rejoined the company, the prisoners were not with them. MacDonald set off his next paragraph in italics. "Company G today committed a war crime. They are going to win the war, however, so I don't suppose it really matters." Of course, MacDonald was being evasive in referring to Company G in the third person. He was Company G, being responsible for the actions of its members. The point is not to condemn or condone MacDonald's behavior. Rather, it is to show that in the 46 years between his published "confessions" until his death in 1993, no American would have dreamed of punishing him. Further, MacDonald's accounts give a hint of the conflicting pressures and swirling confusions a combat soldier experiences. Would it have been better if he were forced to protect himself from an international court by concealing war's horrors and ambiguities? Put yourself in Kerrey's place. Contrary to some reports, a "free-fire zone" in Vietnam did not mean you could kill anything that moved. It meant, for one thing, that you didn't need political clearance to call in an artillery strike. More important, it meant that the Saigon government had told local civilians to clear out. Therefore, movement in that zone at night would be considered enemy activity and would be fired upon. These rules of engagement were well understood by all, which is why many civilians in free-fire zones slept in bunkers. The Washington Post reported that the village, Thanh Phong, was a strategic Viet Cong outpost. "Beginning in 1964, it was a key delivery point for weapons and supplies from North Vietnam that were distributed along rivers and jungle trails to guerrillas across the South," it said in a recent story. Even a former Viet Cong fighter admits that the guerrillas were in the village that night, including district leaders who presumably were the targets of Kerrey's team. Tran Van Rung told reporters he was one of 11 VC assigned to protect the leaders as they met. But Tran's assertion that the VC were asleep in a bunker and were too poorly armed to protect the villagers doesn't ring true. The VC held open-air meetings at night to facilitate quick escapes. They wouldn't have been asleep. By 1969 Viet Cong fighters were well-armed -- Thanh Phong was a weapons-supply point, after all -- and if they believed that the villagers were being slaughtered, it is inconceivable that they would not have engaged the outnumbered Americans. Also, the motive attributed to Kerrey doesn't make much sense. Gerhard Klann, a member of the seven-man team, asserts that Kerrey ordered the villagers rounded up and shot because the young officer feared the civilians would betray the team's presence. But why would it be to the commandos' advantage to kill the terrified villagers for that reason? Everyone agrees that Kerry's team opened fire at some point. The sound of those gunshots would travel faster than any villager could run. During the past month, many commentators have rejected the notion, advanced by combat veterans in Kerrey's defense, that one can't judge another's actions until one has walked in his shoes. Of course, those commentators are technically correct. The country doesn't write its soldiers a blank check. But such observations are spiritually bankrupt. I am not the only Vietnam veteran -- or American, for that matter -- who gives Kerrey the benefit of the doubt and would (had the ICC existed in 1969) resist his turnover by all available means. Copyright 2001 U.P.I. United Press International From: Christopher Church Date: May 14, 2001 Is anything being done to prosecute Bob Kerrey?