July 2001

Robert Kogod Goldman
(Professor of law and co-director of the Center for Human Rights and Humanitarian Law at the Washington College of Law, American University, and first vice president of the Inter-American Commission on Human Rights)

I found somewhat shocking Senator Kerrey’s statement in his interview with Dan Rather that they were ordered to take no prisoners. That is a manifestly, patently illegal order. The United States is a party to the Geneva Conventions, and "giving no quarter" constitutes a grave breach. The Geneva Conventions make explicit that, once they are subdued, combatants, presumptive combatants and, of course, civilians cannot be mistreated. Once you have captured them, you must abstain from wreaking harm–even if just before their capture, they had engaged in hostilities against you. Since 1949–when the Geneva Conventions were signed–the United States has never complained about or protested against these rules. Even if you view Viet Nam as an internal armed conflict, captives are still entitled to the protections of Common Article 3.

If troops round up combatants, or presumed combatants, essentially telling them, "Come into the reservation," i.e., a zone of protected captivity, those individuals cannot be killed, injured, or mistreated. You simply cannot do that. It is a very serious war crime. Any round-up–even one whose sole objective is to remove people from areas that are legitimate military targets–is potentially problematic: there will always be individuals who will be left behind: children, the elderly, the infirm, who effectively lose their status as non-combatants.

We must examine the issue of the "free-fire zone," which was used in Viet Nam, as well as by the French in Indo-China and in Guatemala. The very concept is inimical, inimical to humanitarian law. In fact, the notion of a "free-fire zone" simply does not exist within humanitarian law. The most fundamental law of war is the constant, unwavering duty to distinguish between combatants and non-combatants, and thereby to distinguish between legitimate and illegitimate military targets. You cannot have a policy that places civilians at risk. There is no room for doubt on the law here.

In terms of the events at Thanh Phong, it is possible that there are mitigating, exonerating factors. Perhaps the actions are not so outrageous with the hindsight of thirty years and a good understanding of what was happening on the ground. It was night; the men were young; the modus operandi of the Navy Seals is stealth and mobility. The mission was delicate, Kerrey’s squad needed to get back quickly. It can be hard to trust apparent surrender–there could be traitors and combants among the so-called "subdued." But the law is still the law: you cannot simply kill people you perceive as potential obstacles.

We did not give our men enough training. Viet Nam was a quintessential guerrilla war. Some men got blown away because, when no one was looking, a woman pulled a grenade out from under her blouse.But here too there are limits. Don’t forget, we tried Lt. Calley [for the 1968 massacre at My Lai], and the court rejected his claim [that he was ignorant of the laws of war].

We need to know what were the rules of engagement, and who issued them? Liability should go up the chain of command. Where was the Judge Advocate? Someone here was not doing his job.

There should be an investigation, though not a witch hunt. How can you let something like this go unexamined?