Steven
R. Ratner
(Professor
of Law, University of Texas at Austin, and co-author of Accountability
for Human Rights Atrocities in International Law: Beyond the Nuremberg
Legacy (Oxford University Press, 1997 and 2001).
The angle that interests me is the objective of the mission. According
to The New York Times Magazine article published on April 29,
2001:
Typically,
Navy Seals undertook kidnap or assassination missions, looking
to eliminate Vietcong leaders from among the local population…Within
weeks of Kerrey’s arrival…American and Vietnamese intelligence
reported that the senior Vietcong leader in Thanh Phong, the `village
secretary,’ was planning a meeting…in the area. Effectively
the mayor of the hamlet, the village secretary, was a prime target,
and Kerrey’s squad began planning a `takeout’ mission…."
The
key question is whether the target of the assassination mission
is military or civilian. The laws of war prohibit the targeting
and assassination of civilians. In the context of Viet Nam, it was
not always easy to determine who among the Vietcong was a combatant
and who was not. The Vietcong functioned as both a military force
and a civilian infrastructure; they installed officials in towns,
villages, and hamlets to provide discipline and structure in a variety
of institutions. If it can be established that the village secretary
targeted by Kerrey’s squad had a military role, then many legal
problems disappear. If he did not have a military function, then
the mission is very problematic. Any legal conclusions about the
operation must of course be based on established fact.
The
same issues arise with respect to Operation Phoenix, the CIA project
to "neutralize" the civilian infrastructure of the Vietcong
in South Viet Nam. The CIA recruited South Vietnamese to carry out
this operation, in which upwards of 20,000 individuals were killed.
As for claims that Lt. Kerrey was merely "following orders":
One must refuse to execute a manifestly unlawful command. Was the
order in question patently unlawful? Did Kerrey know whether the
intended targets of the raid were civilians?
A famous
case on this question occurred in 1948. Usually referred to as "The
High Command case," its official designation is U.S. v. Wilhelm
von Leeb, the lead defendant being one of Hitler’s leading
generals. The prosecution centered on Hitler’s order to assassinate
the Commissars, or the political officials in what was then the
Soviet Union. The U.S. prosecuted for war crimes, based on the fact
that these officials were civilians. Von Leeb, interestingly enough,
had protested the order, and even tried to get Marshall Keitel to
get it canceled. Von Leeb was exonerated, but the subordinates who
carried out this facially illegal order–"notorious,"
in the words of the ruling–were convicted.
The
events at Thanh Phong should not be taken lightly, but they should
not be singled out or viewed in isolation. We will never know what,
exactly, happened on the night in question. People remember incorrectly,
and develop coping mechanisms to live with traumatic events. As
time passes, it gets harder and harder to reconstruct events. The
Demnanjuk trial of the 1980s is an excellent case in point. [Survivors
disagreed as to whether Ivan Demnanjuk, who had been living in the
U.S. since shortly after the war, had been their abusive guard at
the Treblinka concentration camp–after so many years, they
couldn’t be sure that his was the face they remembered.]
The
problem is that discussion about Viet Nam tends immediately to be
politicized, indeed polarized, between those who supported the war
and those who did not. We must include new voices in this hard debate,
hear from scholars young enough not to have personal history related
to the war. For this reason, I don’t think there should be
a Congressional hearing. But there should be public dialogue, perhaps
in the form of a conference that would set out to explore a specific
problem, and that would include a broad range of military and civilian
scholars.
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