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The Bob Kerrey Case: Interpreting the Rules of Engagement in Vietnam

Thirty-two years after the event, the Viet Nam war is again in the news, with the revelation by Bob Kerrey that a squad under his command killed unarmed, civilian women, children, and elders in a Mekong Delta village. Kerrey, a Medal of Honor winner who has long had hero’s status in the United States, said that during his time in Viet Nam, he was ignorant of the laws of war, and so believed that, on the night in question, he was giving a legitimate order.

The debate over the incident has been complicated by the different recollections of the members of Kerrey’s squad. These conflicting accounts have aroused emotional and at times heated discussion. While this controversy has been centered on the American past, it echoes debates in countries like France, which is currently re-visiting the dark particulars of its war with Algeria.

What has been missing from the debate has been a grasp of the laws of war that applied at the time of the incident at Thanh Phong. Humanitarian law, the laws of armed conflict developed over the past 150 years to demarcate civilized behavior from barbarism, provides the framework for a reasoned debate. In an attempt to foster such a discussion, the CWP sought analyses from military and civilian experts on the laws of war, and on the key legal issues that pertain to Lt. Kerrey’s mission at Thanh Phong. Numerous scholars and officials–in both military and civilian government institutions–could not speak for attribution, but nonetheless provided information, background, and analysis.

As to whether there should be an investigation, our sources disagreed: those opposed held that the killings at Thanh Phong were "an accident," or that it would be impossible now to reconstruct the operation. Sources who favored an inquiry disagreed on how to define the specific objectives, structure, and scope. Several were perplexed that the incident had not been investigated earlier, in response to the South Vietnamese reports of atrocities presented to U.S. military authorities soon after the killings.

Among all our sources, the concept of the "free-fire zone" aroused uneasiness, if not outright rebuke. "A declaration of a `free-fire zone’ does not mean a soldier has the right to kill an unarmed civilian," emphasized one military source. "In a free-fire zone, certain decisions do not need to be cleared with one’s superiors back at base. But in no wise, is the free-fire zone license to kill anything that moves."

One of the most controversial points is Senator Kerrey’s claim that he was ordered by his superiors to "take no prisoners." A military expert was adamant: "That is not meant to be interpreted literally. The meaning of `take no prisoners’ is: Fight to the limits of your valor, within the rules of engagement. Even if it endangers or complicates your return to base, you are not allowed to kill unarmed civilians. You either capture them–and treat them humanely, according to the laws of war–or you continue on your path."

All of our experts voiced concern about the way soldiers are prepared for battle. A military lawyer stressed, "This incident, and its aftermath, point to the crucial, urgent necessity for a solid and institutionalized training base in the laws of war. The knowledge has to be so deep that it is internalized: in battle, things happen so fast that if you freeze for a micro-second, you and all your men could be killed. If we encourage people to hesitate under pressure, to wonder how a given situation will be analyzed thirty years later, then we are placing them in grave danger."

In the expectation that the commentaries found here will provoke dialogue and debate, CWP will soon initiate a web discussion forum, with the hope that everyone will join in, civilians and soldiers, Americans and Vietnamese and individuals from all over the world. Legal experts will join the debate, and try to clarify points of law.

Also planned is a more extensive feature on war crimes education in the four branches of the military.

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Robert Kogod Goldman
"We need to know what were the rules of engagement, and who issued them. Liability should go up the chain of command."

Steven R. Ratner
"The key question is whether the target of the assassination mission is military or civilian."

Michael Scharf
"The conduct of the entire Viet Nam war was problematic."

Gary Solis
"The vast majority [of war crimes] never come to light, owing to confusing conditions on the ground, loyalty among soldiers, and insufficient respect for the enemy."