Gary
Solis
An
expert on war crimes, Gary Solis, Ph.D., has written two books on
Viet Nam. A retired Marine, he served two tours in Viet Nam: in
1964, as a 2nd Lieutenant platoon commander; and in 1966
as a captain. Since 1995, he has taught the laws of war (a course
he created) at the United States Military Academy at West Point.
The views expressed here are his own, and do not necessarily reflect,
or represent, those of the USMA.
Bob
Kerrey came to see me, on April 21, and asked, "Did I commit
war crimes?"
Any
attempt to answer that question must be based on the facts. The
problem is that there are two competing versions of the factsSenator
Kerreys and Gerhard Klanns. I have no doubt that these
individuals are equally sincere in their accounts. But memory is
the most faulty of resources. Especially thirty years after the
Viet Nam war.
If you
believe Senator Kerrey, as I am prepared to do, no war crimes were
committed at Thanh Phong. If you believe Mr. Klannwhich I
dont, but again, I dont doubt his sinceritythen
there were.
Perhaps
I speak out of loyalty, though not entirely so. I had never met
Kerrey before that day a couple of weeks ago at West Point. Bob
Kerrey is the first to concede that his memories may be unreliable.
But they are his memories, they have plainly tormented him.
I view him as a military and civilian hero. An educator.
As a
former prosecutor, I wouldnt touch this case. Its the
classic "He said/she said." I would no more prosecute
Mr. Klann than I would Senator Kerrey. And I am not impressed by
the so-called testimony of the woman in Viet Nam [Pham Tri Lanh]:
first she said she "saw" the events, later she said she
"heard" them.
Youve
asked me to break down the events in question. I was not present,
have not conducted an in-depth investigation, and so my knowledge
of the particular mission has limits. With that caveat, let us look
at the simplest issue first: if Lt. Kerrey, as squad commander,
believed the civilians were armed, then there was no crime in killing
them. His order to shoot would have been lawful; to have disobeyed
his order would have been cause for court martial.
The
more complicated event in this operation centers on the knifing
of the "old man," whom Klann described as struggling fiercely,
refusing to die. Klann recounts that Kerrey came over to assist,
putting a knee to the mans chest, enabling Klann to cut his
throat. Now if Commander Kerrey came to the defense of a soldier
wrestling with the enemy, again there is no war crime. But given
the competing versions of the facts, I would have to say that, in
my view, there is the potential. Klanns account, in which
the old man is unarmed, is troubling. But it is not conclusive.
The
after-action report [AAR] says they killed 21 VC and captured two
weapons. If Kerrey knew that theyd taken out only civilians,
how do we account for the discrepancy? It is unclear who exactly
submitted the report, but if Kerrey didand he claims he did
notthen that would be disturbing. But we need to look at the
AAR in the larger context of Viet Nam. The fact is, you gave them
what they wanted. They wanted elephants? Yeah, we bagged seven.
In some units, there was real pressure for body counts. Youre
in competition with other units and if youre career-minded,
you dont need a weatherman to know which way the wind blows.
A moment
ago, you asked, "Was the definition of VC `everyone we killed?"
Yes, even the water buffalo, though I think we stopped short of
chickens. Im exaggerating to make the point, of course. The
AARs were done by a chain of individuals, not necessarily
well-educated and not necessarily in direct contact with one another:
Kerrey would have submitted the basic information upon returning
to base or maybe even in the swiftboat taking them back; the drafting
would be done by another guy; someone else would transcribe; and
yet another soldier would cable or radio it in. Lots of opportunity
here for inaccuracy, distortion, inflation. Happened all the time.
We also
shouldnt overestimate the value of [Kerreys] Bronze
Star, which was awarded on the basis of the AAR. Virtually every
officer in Viet Nam got one. It was unheard of to refuse. But not
the Congressional Medal of Honor [which Kerrey also received]. That
was sacrosanct. That was for heroes.
It has
become a parlour game for Americans to accuse other Americans of
war crimes. Kerrey was 25 years old, he learned the hard way. So
did virtually all of the boys over there. Thats the hideous
part: wars are fought by kids. Viet Nam was further complicated
by Project 100,000, which entailed the yearly conscription of 100,000
"Cat 4s", or individuals designated Mental Category Four.
They could read, but only at a comic-book level. The training manuals
were in fact color cartoons. The effect of their entrance on the
battlefield should not be underestimated.
I never
suffered what Kerrey did, but I think all of us would say that there
were things we didnt understand, things we might have done
differently with the advantage of age and experience. This is not
to suggest that Viet Nam was a war without rules. Based on
my tours in Viet Nam, I would say that the vast majority of our
combatants were conscientious and careful. At no time did anyone
say, "Do whatever
" In reponse to your question about
the New York Times Magazines report that Captain Hoffman
[Kerreys area commander] requested and received permission
for "a loosening of the rules [of engagement]", I would
say, Hell no! I never heard of such a request being made.
Anywhere. We have a saying in the military: "Were the
U.S., not the SS."
The
Geneva Conventions of 1949 were integrated into our legal system
through the Uniform Code of Military Justice, passed as federal
law on 5 May 1950; the Manual for Courts-Martial, which implements
the UCMJ, came into effect 31 May 1951. The Law of Land Warfare,
para. 509, makes explicit that obedience to an unlawful order
is no defense against a charge of war crimes. There is a good deal
of supporting case law: Little v. Barreme, 6 U.S. (2 Cranch) 170
(1804); Mitchell v. Harmony, 54 U.S. (13 How.) 115 (1851); Judgement
in the Case of Lieutenants Dithmar and Boldt, 16 Am. J.Intl
L. 708 (1921); U.S. v. Huet-Vaughn, 43 M.J. 105 (CAAF 1995).
Over
the course of the Viet Nam war, there were 122 war crimes convictions:
95 in the army; 27 in the marines. Those defendants were adjudged
by uniformed juries, and punished in accordance with their offenses.
But war crimes are notoriously under-reported. The vast majority
never come to light, owing to confusing conditions on the ground,
loyalty among soldiers, and insufficient respect for the enemy.
There is a further procedural reason that it is hard to trace this
legal history: you do not find "war crimes" in the language
of the UCMJ, which uses a penal code vocabulary: for example, "murder"
(Section 918, Art. 118); or "rape" (Sec. 920, Art. 120).
Moreover, the only records we have are appellate records. So if
a case ends in acquittal, it is very hard to locate. If there is
appeal on conviction (and appeals were virtually automatic), all
youll find are the specific appellate issues: admissibility
of a particular piece of evidence; admissibility of the defendants
confession, etc. There is nothing about the substance of the underlying
conviction.
In terms
of military education, My Lai was a turning point. At West Point,
I teach a semester-long course on the laws of war. Other departments
and disciplines teach these issues as well: philosophy; behavioral
science and leadership; law; and field training. We also have academic
competitions on these questions with the Naval Academy, the Royal
Air Force, and the Canadian armed forces.
Given
the lack of evidence and conflicting accounts, the prospect of reconstructing
what happened at Thanh Phong seems extremely dim. I am not saying
that no one should try. I am saying that everyone should hold their
accusations on the basis of insufficient evidence.

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