Robert
Kogod Goldman
(Professor
of law and co-director of the Center for Human Rights and Humanitarian
Law at the Washington College of Law, American University, and first
vice president of the Inter-American Commission on Human Rights)
I found somewhat shocking Senator Kerreys statement in his interview
with Dan Rather that they were ordered to take no prisoners. That
is a manifestly, patently illegal order. The United States is a party
to the Geneva Conventions, and "giving no quarter" constitutes
a grave breach. The Geneva Conventions make explicit that, once they
are subdued, combatants, presumptive combatants and, of course, civilians
cannot be mistreated. Once you have captured them, you must abstain
from wreaking harmeven if just before their capture, they had
engaged in hostilities against you. Since 1949when the Geneva
Conventions were signedthe United States has never complained
about or protested against these rules. Even if you view Viet Nam
as an internal armed conflict, captives are still entitled to the
protections of Common Article 3.
If troops
round up combatants, or presumed combatants, essentially telling them,
"Come into the reservation," i.e., a zone of protected captivity,
those individuals cannot be killed, injured, or mistreated. You simply
cannot do that. It is a very serious war crime. Any round-upeven
one whose sole objective is to remove people from areas that are legitimate
military targetsis potentially problematic: there will always
be individuals who will be left behind: children, the elderly, the
infirm, who effectively lose their status as non-combatants.
We must
examine the issue of the "free-fire zone," which was used
in Viet Nam, as well as by the French in Indo-China and in Guatemala.
The very concept is inimical, inimical to humanitarian law.
In fact, the notion of a "free-fire zone" simply does not
exist within humanitarian law. The most fundamental law of war
is the constant, unwavering duty to distinguish between combatants
and non-combatants, and thereby to distinguish between legitimate
and illegitimate military targets. You cannot have a policy that
places civilians at risk. There is no room for doubt on the law here.
In terms
of the events at Thanh Phong, it is possible that there are mitigating,
exonerating factors. Perhaps the actions are not so outrageous with
the hindsight of thirty years and a good understanding of what was
happening on the ground. It was night; the men were young; the modus
operandi of the Navy Seals is stealth and mobility. The mission was
delicate, Kerreys squad needed to get back quickly. It can be
hard to trust apparent surrenderthere could be traitors and
combants among the so-called "subdued." But the law is still
the law: you cannot simply kill people you perceive as potential obstacles.
We did
not give our men enough training. Viet Nam was a quintessential guerrilla
war. Some men got blown away because, when no one was looking, a woman
pulled a grenade out from under her blouse.But here too there are
limits. Dont forget, we tried Lt. Calley [for the 1968 massacre
at My Lai], and the court rejected his claim [that he was ignorant
of the laws of war].
We need
to know what were the rules of engagement, and who issued them? Liability
should go up the chain of command. Where was the Judge Advocate? Someone
here was not doing his job.
There
should be an investigation, though not a witch hunt. How can you let
something like this go unexamined? |