July 2001

Michael Scharf
(Director of the Center for International Law and Policy, New England School of Law)

The first question we need to ask is, What laws apply? There has been a huge historical debate over whether Viet Nam was an internal armed conflict or international armed conflict. How you answer that determines which sets of laws are applicable. The dominant trend in recent years is to consider the war an international armed conflict, which means that the essential body of law is found in the Geneva Conventions.

It is absolutely clear that targeting civilians constitutes a "grave breach." We also know that in any war, there are mistakes, accidents, and collateral damage. If the commander believed he was ordering his men to fire at a military target (even if it turned out they were not), then they did not commit a war crime, provided they were not negligent in trying to identify the target. The key issue is "military necessity." If it was clear that the incoming fire was from one sniper, and you kill him, it is not legitimate to also kill everyone else in the village.

There are cases–particularly in an insurgent war–when a whole village is a legitimate military target. If you take diffuse fire from the village and, in responding, kill innocent civilians, that is not a war crime.

The problem in Viet Nam was that the VC sought to be impossible to identify. They wore no uniforms or insignia, and did not serve in an official army. They infiltrated civilian villages, taking cover among non-combatants. They used children, women, and the elderly as ‘stealth combatants,’ fostering paranoia among our troops. The VC choice of how to conduct the war means they forfeited some–though not all–of their rights under the Geneva Conventions.

The U.S. rules of obedience apply explicitly and exclusively to lawful orders. Until it becomes clear that the order is unlawful, a soldier has the right, duty, and responsibility to obey. It is indefensible to obey an order that is patently or manifestly unlawful. Where the order leaves doubt–and you don’t have lawyers in the jungle–you cannot have paralysis. A second’s hesitation can mean death for a whole platoon. If an order falls into a "gray area," the men who followed would not be subject to punishment.

Ignorance about the laws of war is not a legitimate defense. The Germans tried that at Nuremberg, but it didn’t work, since The Hague Conventions (precursor to the Geneva Conventions) were codified just after World War I. At his trial for the 1968 masssacre at My Lai, Lt. Calley claimed that he was a mere "grunt," and could not be expected to know such things. Yet they proved in that courtroom that "there was adequate training about conducting operations consistent with the laws of war." There has always been training and in fact it needn’t take long: at issue is bascially a list of things you are not allowed to do.

The incidents in question would be difficult to reconstruct. The actual documentation is sparse, there are no forensics, no satellite imagery. Over time, memories fade and warp, sometimes owing to war guilt.

It is difficult to say who, precisely, is to blame. The conduct of the entire Viet Nam war was problematic. The after-action reports systematically inflated VC casualties, and under-reported civilian casualties. The political and military communities were playing a numbers game to win popular support for the war. There were 55,000 American deaths, as opposed to several million Vietnamese. There was no need for us to kill so many.

You know, in Viet Nam, they have largely gotten past the war. In the U.S., we are still obsessed, particularly Kerrey’s generation. But it isn’t fair to try this case in the court of public opinion.

Could Kerrey be vulnerable to international arrest? No. The ICC is not functioning and even if it were, it couldn’t handle cases that predate its inception. Certain national courts have legislation enabling them to prosecute for grave breaches, genocide, and so on. But no country would take on a case where the documentation is unclear.

The most interesting aspect of Thanh Phong coming to light is that news coverage and popular interest demonstrate that, in the last ten years, Americans have been educated about war crimes. There have been numerous references to the ICTY, the ICTR, Sierra Leone, and the ICC. The public is cognizant of the rules of engagement, the laws of war. And that is a very positive development.