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July
2001
Steven
R. Ratner
(Professor
of Law, University of Texas at Austin, and co-author of Accountability
for Human Rights Atrocities in International Law: Beyond the
Nuremberg Legacy (Oxford University Press, 1997 and 2001).
The angle that interests me is the objective of the mission.
According to The New York Times Magazine article published
on April 29, 2001:
Typically,
Navy Seals undertook kidnap or assassination missions, looking
to eliminate Vietcong leaders from among the local population…Within
weeks of Kerrey’s arrival…American and Vietnamese
intelligence reported that the senior Vietcong leader in
Thanh Phong, the `village secretary,’ was planning
a meeting…in the area. Effectively the mayor of the
hamlet, the village secretary, was a prime target, and Kerrey’s
squad began planning a `takeout’ mission…."
The
key question is whether the target of the assassination mission
is military or civilian. The laws of war prohibit the targeting
and assassination of civilians. In the context of Viet Nam,
it was not always easy to determine who among the Vietcong
was a combatant and who was not. The Vietcong functioned as
both a military force and a civilian infrastructure; they
installed officials in towns, villages, and hamlets to provide
discipline and structure in a variety of institutions. If
it can be established that the village secretary targeted
by Kerrey’s squad had a military role, then many legal
problems disappear. If he did not have a military function,
then the mission is very problematic. Any legal conclusions
about the operation must of course be based on established
fact.
The
same issues arise with respect to Operation Phoenix, the CIA
project to "neutralize" the civilian infrastructure
of the Vietcong in South Viet Nam. The CIA recruited South
Vietnamese to carry out this operation, in which upwards of
20,000 individuals were killed. As for claims that Lt. Kerrey
was merely "following orders": One must refuse to
execute a manifestly unlawful command. Was the order in question
patently unlawful? Did Kerrey know whether the intended targets
of the raid were civilians?
A
famous case on this question occurred in 1948. Usually referred
to as "The High Command case," its official designation
is U.S. v. Wilhelm von Leeb, the lead defendant being one
of Hitler’s leading generals. The prosecution centered
on Hitler’s order to assassinate the Commissars, or the
political officials in what was then the Soviet Union. The
U.S. prosecuted for war crimes, based on the fact that these
officials were civilians. Von Leeb, interestingly enough,
had protested the order, and even tried to get Marshall Keitel
to get it canceled. Von Leeb was exonerated, but the subordinates
who carried out this facially illegal order–"notorious,"
in the words of the ruling–were convicted.
The
events at Thanh Phong should not be taken lightly, but they
should not be singled out or viewed in isolation. We will
never know what, exactly, happened on the night in question.
People remember incorrectly, and develop coping mechanisms
to live with traumatic events. As time passes, it gets harder
and harder to reconstruct events. The Demnanjuk trial of the
1980s is an excellent case in point. [Survivors disagreed
as to whether Ivan Demnanjuk, who had been living in the U.S.
since shortly after the war, had been their abusive guard
at the Treblinka concentration camp–after so many years,
they couldn’t be sure that his was the face they remembered.]
The
problem is that discussion about Viet Nam tends immediately
to be politicized, indeed polarized, between those who supported
the war and those who did not. We must include new voices
in this hard debate, hear from scholars young enough not to
have personal history related to the war. For this reason,
I don’t think there should be a Congressional hearing.
But there should be public dialogue, perhaps in the form of
a conference that would set out to explore a specific problem,
and that would include a broad range of military and civilian
scholars.
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