Michael
Scharf
(Director
of the Center for International Law and Policy, New
England School of Law)
The first
question we need to ask is, What laws apply? There has been a huge
historical debate over whether Viet Nam was an internal armed conflict
or international armed conflict. How you answer that determines which
sets of laws are applicable. The dominant trend in recent years is
to consider the war an international armed conflict, which means that
the essential body of law is found in the Geneva Conventions.
It
is absolutely clear that targeting civilians constitutes a "grave
breach." We also know that in any war, there are mistakes, accidents,
and collateral damage. If the commander believed he was ordering his
men to fire at a military target (even if it turned out they were
not), then they did not commit a war crime, provided they were not
negligent in trying to identify the target. The key issue is "military
necessity." If it was clear that the incoming fire was from one
sniper, and you kill him, it is not legitimate to also kill everyone
else in the village.
There are casesparticularly in an insurgent warwhen a
whole village is a legitimate military target. If you take diffuse
fire from the village and, in responding, kill innocent civilians,
that is not a war crime.
The problem in Viet Nam was that the VC sought to be impossible to
identify. They wore no uniforms or insignia, and did not serve in
an official army. They infiltrated civilian villages, taking cover
among non-combatants. They used children, women, and the elderly as
stealth combatants, fostering paranoia among our troops.
The VC choice of how to conduct the war means they forfeited somethough
not allof their rights under the Geneva Conventions.
The U.S. rules of obedience apply explicitly and exclusively to lawful
orders. Until it becomes clear that the order is unlawful, a soldier
has the right, duty, and responsibility to obey. It is indefensible
to obey an order that is patently or manifestly unlawful. Where the
order leaves doubtand you dont have lawyers in the jungleyou
cannot have paralysis. A seconds hesitation can mean death for
a whole platoon. If an order falls into a "gray area," the
men who followed would not be subject to punishment.
Ignorance about the laws of war is not a legitimate defense. The Germans
tried that at Nuremberg, but it didnt work, since The Hague
Conventions (precursor to the Geneva Conventions) were codified just
after World War I. At his trial for the 1968 masssacre at My Lai,
Lt. Calley claimed that he was a mere "grunt," and could
not be expected to know such things. Yet they proved in that courtroom
that "there was adequate training about conducting operations
consistent with the laws of war." There has always been training
and in fact it neednt take long: at issue is bascially a list
of things you are not allowed to do.
The incidents in question would be difficult to reconstruct. The actual
documentation is sparse, there are no forensics, no satellite imagery.
Over time, memories fade and warp, sometimes owing to war guilt.
It is difficult to say who, precisely, is to blame. The conduct of
the entire Viet Nam war was problematic. The after-action reports
systematically inflated VC casualties, and under-reported civilian
casualties. The political and military communities were playing a
numbers game to win popular support for the war. There were 55,000
American deaths, as opposed to several million Vietnamese. There was
no need for us to kill so many.
You know, in Viet Nam, they have largely gotten past the war. In the
U.S., we are still obsessed, particularly Kerreys generation.
But it isnt fair to try this case in the court of public opinion.
Could Kerrey be vulnerable to international arrest? No. The ICC is
not functioning and even if it were, it couldnt handle cases
that predate its inception. Certain national courts have legislation
enabling them to prosecute for grave breaches, genocide, and so on.
But no country would take on a case where the documentation is unclear.
The most interesting aspect of Thanh Phong coming to light is that
news coverage and popular interest demonstrate that, in the last ten
years, Americans have been educated about war crimes. There have been
numerous references to the ICTY, the ICTR, Sierra Leone, and the ICC.
The public is cognizant of the rules of engagement, the laws of war.
And that is a very positive development.
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