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 2^nd 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 facts–Senator Kerrey’s and Gerhard Klann’s. 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. Klann–which I don’t, but again, I don’t doubt his sincerity–then 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 wouldn’t touch this case. It’s 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.

You’ve 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 man’s 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. Klann’s 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 they’d taken out only civilians, how do we account for the discrepancy? It is unclear who exactly submitted the report, but if Kerrey did–and he claims he did not–then 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. You’re in competition with other units and if you’re career-minded, you don’t 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. I’m exaggerating to make the point, of course. The AAR’s 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 shouldn’t overestimate the value of [Kerrey’s] 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. That’s 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 didn’t 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 Magazine’s report that Captain Hoffman [Kerrey’s 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: "We’re 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.Int’l 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 you’ll find are the specific appellate issues: admissibility of a particular piece of evidence; admissibility of the defendant’s 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.