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July
2001
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 2nd 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.
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