Nuremberg and Vietnam (Reel 1)

Search and Destroy is a mission. Whereby you are given to you to destroy any didn't. We sort through the village we turned around went back through it and burned all of them shoot everything. Man woman children and the whole bit everything that could be made to be see every living thing that was sort of like the order people started getting killed and the guys walking up to the houses. On the Internet counting. Green and it's me and it's I think. And thanks to people with rifles automatic rifles and train when. I. Was a war crime and violated established international laws which the United States has long accepted. It was a

specific crime and in the last few days we've heard allegations of other crimes with the charges against Gen. Donaldson. Tonight we're going to examine whether in a far broader sense the United States has violated international law by its conduct in Vietnam. We're not going to discuss the political morality or wisdom of Vietnam but it's legality. The government says that incidents like the lie were all isolated that American troops in general had behaved honorably and debate the laws of war. But a growing number of Americans do not believe that they claim the United States has fought the war in a way which made violation of international law more likely. One prominent American who makes this charge is Telford Taylor author of the book Nuremberg and Vietnam an American tragedy. His argument is central to this program. You have a challenge or supported by a large group of men with personal experience a Vietnam policy making or fighting or of the 1945 war crimes trials in Germany. Some are

with me here in New York the British participants are in London linked by satellite. And the Germans taking part are in Berlin. Now we've divided the inquiry into three parts. And at the end three questions will be put to eminent jurists will make a summing up and the judgment of the jurists in Berlin. Professor Cohen Belden professor of international law at Cologne University. In London. Packed to see an eminent international lawyer from Team Brit University. And here in New York Judge Philip C. just. One of America's foremost legal legal figures who is also served on the International Court of Justice at The Hague. This program is being seen in the United States and West Germany and you can decide with these judges how you answer the questions the program poses. In their simplest form they are. First do the

principles of Nuremberg apply to Vietnam. Second as the United States violated the laws of war in Vietnam. And if so how high in the American leadership should responsibility go. So those are the issues and this inquiry into the public conscience of America a conscience deeply disturbed by the recent verdict on Lieutenant William Calley. The conviction of left for his part in the picture of exasperate. And. There have been more crimes discovered in. Scores of servicemen had been. For years many Americans have protested that the war many began thinking it might. Of international

law the national polls show that three quarters of Americans disapproved of the county verdict by two thirds thought County was being made a scapegoat for the actions of higher ups. And in the same poll one third of Americans actually suggested that high government and military officials should go on trial for alleged war crimes in Vietnam. Americans with that you may have in mind the precedent that dominates the thinking of everyone concerned with this issue today precedent that the Allies established in the trials at the end of World War Two beginning at Nuremberg. All of these trials were based on longstanding international law. They were in themselves a new departure. Nuremberg grew out of the pledges made by the allied leaders in the darkest hours of World War Two as hints of Nazi atrocities began to leak out of occupied Europe. The tribe you know took final shape after the world to discover the full enormity of the Nazi horror in the liberated concentration camps.

The men put on trial were not the soldiers who fought the war but the highest political and military leaders who made the policy. They were charged with crimes against humanity crimes against peace with waging aggressive war and with violating the laws and customs of war. Twenty two of the top Nazis were tried at Nuremberg. The proceedings took nearly 12 months. The judges came from America Britain France and Russia. The chief American prosecutor was Supreme Court Justice Robert Jackson. His words in 1945 have great relevance today Jackson said. Human reason demands that the law should not be considered adequate if it punishes only petty crimes which lesser people are guilty. The last step in preventing the outbreak of war which is unavoidable with international law lessness is to make statesmen responsible before the law. Let me say it quite clearly. There is here

first applied to German aggressors but it includes and must do if it's to be of service. The condemnation of aggression by any other nation not accepting those who now sit here in judgment. The Nuremberg Tribunals most of the defendants guilty and 10 of them were hanged for crimes against humanity. But Nuremberg was criticized because the victorious nations were trying the vanquished charges which might have applied to the victors. For instance the fire bombing of Dresden. Or the atomic bombing of Japan were never heard.

At that first Nuremberg trial. They associate American prosecutor was Telford Taylor a brigadier general in the United States Army. At the subsequent Gothenburg trials Mr. Taylor led the prosecution of some 175 other Nazi war criminals. Now he's a professor of law at Columbia University in New York. In public discussion of possible criminality of American military operations in Vietnam. And the recent trial of Lieutenant Calley for his role in the killings in the name Nuremberg has been constantly invoked. And this is very natural because Nuremberg has become a symbol and perhaps more than a symbol a sort of touchstone for the analysis of these questions. And just because of this fixation with the word Nuremberg I think it's especially important to remind ourselves at the outset that Nuremberg is only part of the picture that is much broader and of a course of human thought and action that is many centuries old.

At least since the dawn of the Christian era. Men have been aware that war is their own greatest scourge. And have been searching for ways to abolish war or failing that to mitigate its horrors. Saint Augustine Saint Thomas Aquinas developed the doctrine of Just and Unjust Wars. And this distinction loomed large in Catholic theology and diplomacy for many centuries. It died away with the decline in the temporal power of the church and the rise of nationalism. And then war came to be regarded as a legitimate means of achieving state ends. And this attitude States women jurists found acceptable until after the first world war that war because of its terrible toll of death and destruction. Sent men once again in search for a doctrine or better still a law. That would outlaw war and lay the groundwork of a durable peace. Then reinforced by the carnage of the Second

World War. These efforts led to the creation of the United Nations and the trial and conviction of some of the German and Japanese leaders for the crime described in the chart of the Nuremberg Tribunal as the crime against peace. That is the initiation of aggressive war. Now quite separately they're also developed especially within the last few hundred years. A body of custom and practice for limiting the permissible scope and methods of warfare. In part the impetus for these rules was economic. Reflecting the desire of merchants and their customers to trade and commerce should be disrupted as little as possible. But in part also the impetus was humanitarian to mitigate wars horrors and to an end unnecessary death and destruction. The fruits of these efforts are what we now call the laws of war. And they are embodied today in international treaties such as the Hague and Geneva Conventions. And the rules adopted by most nations for the governance of their armed forces.

Warfare consists largely of killing and wounding people and destroying property. Conduct which in civil life we would describe as murder or assault or arson. As soldiers in war may do these things without incurring criminal liability but only within the limits specified in the laws of war. If the soldier does violence outside of these limits he commits what we call a war crime. And unlike the crimes against peace that were judicially punished at Nuremberg for the first time. Soldiers have been tried and convicted of war crimes for at least two centuries. Some rules of war have sought to limit the use of particular weapons like submarines or bomber aircraft or poison gas. These have not been notably successful. Others have to do with the taking and treatment of prisoners and the humane treatment of civilians in areas occupied by the armed forces. These are somewhat more capable of enforcement. They're the rules most closely related to the fighting in Vietnam and I would like to say a few words about each of them. One of the oldest

rules of war is that soldiers are allowed to surrender in further resistance was useless and that the captors must treat them humanely. There are to be sure circumstances where it is dangerous impossible or impossible to take and keep prisoners and military lawyers are rather divided in their opinion on what may then be done. But under circumstances where the prisoner poses no danger to the captors they may not torture them to extract information and they are required to put them in a safe place and treat them humanely. Turning to the other category the laws of war have a good deal to say about the relations between the civilian population and the armed forces operating in the area where they live. Civilians hostile to the occupying forces and they not all of a sudden turn soldier. And start throwing grenades or firing at the troops unless they observe the requirements of the laws of war with respect to identification and carrying arms. The occupying forces for their part are required to treat

civilians humanely. Now a difficult. Question in connection with the laws of war is the one commonly known as superior orders. Ordinarily a soldier owes a duty of medians to orders and many people under the impression that this duty is absolute. In fact this is quite mistaken. Ford has long been the rule that if a soldier knows that an order is unlawful it's his duty to disobey it. The German military code of 1872 so provided and so to the rules of the American and other organized armed forces today. But military law recognizes the pressures and hazards that confront a soldier who receives an order. And even if the order is unlawful it will be given great weight in mitigation. And so too it is recognized that the greater responsibility lies with the superior who gives the unlawful order. Now all these principles were well established long before the Nuremberg trials. Nuremberg was not the beginning of the story and neither was at the end. There were many other war crimes trials in the wake of the Second World War including the international trial of Tokyo and the

trial of General Yamashita in Manila. About 10 years ago I don't like when it was tried in Jerusalem and there is still a war crimes trials going on in Germany today. Now I think the beyond question the United States and the other belligerence in Vietnam are bound to observe and enforce these laws of war. All the participants except the Vietcong are parties to the 1949 Geneva Conventions. The United States is the principal architect of the Nuremberg trials and sponsored the resolution endorsing the Nuremberg Principles that was adopted by the United Nations Assembly. At no time to my knowledge has the United States government suggested that its forces in Indochina or anywhere else are not bound by the laws of war. From time to time we hear suggestions that the laws of war are not worth preserving and that efforts to punish violations in the Kelley trial do more harm than good. Admittedly these rules are vague. They're often violated with impunity. But in the sense that they save lives they work. It's only necessary to recall the

millions of prisoners of war who return to their homes after the Second World War to appreciate the value of these rules in terms of life and death. To reject them as a counsel of despair. And we should not refuse to do what we can because we cannot do more. Even more important is the necessity that soldiers retain such respect for the value of lice that unnecessary death and destruction will continue to repel them. Combat soldiering is a traumatic experience at best and it is vital that the soldier not regard his uniform as a license to kill indiscriminately. Otherwise he may start attacking his comrades his officers. Or if he returns home his fellow citizens. As it was put by Francis Lieber the author in 1863 of the First Army regulations on the rules of war. Men who take up arms against one another in public war. Do not cease to be moral Bean's responsible to one another and to God. Thank you Mr. TURNER. Adrian Fisher was also at the Nuremberg trials as

a technical advisor to the American judges there. Since then he's been a legal advisor to the U.S. State Department and for eight years was deputy director of the U.S. Arms Control and Disarmament Agency. He's now dean of the law school at Georgetown University in Washington. He sees the significance of Nuremberg quite differently. Well I would say in a somewhat different perspective there's very little the General Taylor has just said that I would take direct issue with. I think I'd like to supplement it a little bit. I would like to add that the notion of individual responsibility for violating of the laws of war didn't start with Nuremberg and started many many years before they were born. Most Americans know about his captain very Andersonville the Confederate captain of that infamous prison. But I think there's a great deal of shall we say folklore about Nuremberg that really should stand some critical examination. The first is the so-called Nuremberg defense. Namely under no circumstances are

superior orders to be considered relevant you can you're supposed to disobey the order at all costs at your peril. Well that of course while it is true with the charter of Nuremberg provided that superior order should not be a defense but only in mitigation of punishment. The way it actually worked. We were talking there about Cabinet officers about four star generals five star generals and people who were following someone else's orders. They were not political leaders held as political leaders who was giving the order to Hermann Goering for example. These were people involved in directly instituting and carrying out programs that involve the murder of 78 million civilians in the enslavement of five million more. So when one hears the term Nuremberg defense use rather lightly I think when all is in a sense to coin an American political figure. Look at the record and to this I would commend the current set of charges on the issue of superior orders given by our own Court of Military Appeals which really put the issue. Was there a moral choice if there was a

choice and you were in position to make it. You have to stand by it. Now the other thing I would like to point out with respect to putting Nuremberg in perspective particularly as it applies to where we say political figures the political figures at Nuremberg were not tried as political figures perhaps some were indicted for that reason. But had this been in the concept of political responsibility the tribunal would not have acquitted shocked in Van Poppel. They convicted people who had been directly involved in specific programs in violation of specific treaties and conventions. And I think the history may have this rather ironic note on it. Had been involved in them. And if one may use this term in this sense had been bragging about their success in carrying them out. It's probable that the reports on the on the number of Jews killed by the Einsatzgruppen in some cases was exaggerated. Because as one of the

defendants said I believe the commander of that group who reported the killing of a hundred thousand people in one mission was bragging. So here we do have a a quite different and one sort of forgets about how horrible the crimes were there. These were programs to for the annihilation of seven or eight million people and the enslavement for five million more. And the people charged were those directly involved in the execution of those programs. So when the concept of political responsibility is mentioned one ought to bear in mind that there was no sense of political responsibility at Nuremberg. It was straight accountability for criminal actions taken by people who had a Maro choice. These were people put in the position that they were by Hitler These were people scrambling to get near Hitler's right hand and saying how well they were doing in carrying carrying out his wishes. So I just like to end on this note when thinking of the quote Nuremberg Principles. I hate to use the

term put it in perspective that always sounds like don't take it seriously. I'd say the other way around when thinking of them. Let's just look at the record. Thank you it's been one minute Nuremberg Dr Albert Speer who was one of those charged in the question of political responsibility directly applies to him he was sentenced at Nuremberg for 20 years to 20 years in prison for crimes against humanity. He was released in 1966. He's one of the few still alive who stood in the dock at Nuremberg there recently Dr. Spear was asked why he accepted responsibility for Nazi practices like slave labor and concentration camps some of which he didn't know about when she's came. Back tired voice and I hate to prepare my defense and I have almost decided not to fight to defend myself. I stated to him and I have all this bitterness books said I

am responsible for all of it so those scenes fall asleep believe me I didn't I didn't avoid telling clearly churches what I did and even I felt responsible. Then all of us of us accused falsely accused see all of us were claiming said to myself I didn't do said but. There was another question which was occupying my mind very much this was how much of a responsibility I have to carry from also sings which I didn't know we have talked of I did said I was shining a very he said I could have known. So as climbs and said if you can do anything and the situation is you know I added to his first statement was a type you

said I also am responsible for everything which happened and even if I didn't know it into time when I was leading man of the government it means from 40 to on and included of course also Auschwitz. Another participant at Nuremberg was Sir Elwin Jones who was a member of the British war crimes executives. He's a Labor Member of Parliament and was attorney general in the last Labor government and he is in London this evening. Mr. Fisher seems to be suggesting that perhaps Telford Taylor is remembering the folklore and not the facts of Nuremberg nor somebody who took part there. Which do you do you support. Well there is no doubt that the that the outstanding contribution of Nuremberg was to assert the principle of individual responsibility for war crimes and crimes against peace and crimes against humanity. But it is quite true that those that were selected for prosecution at Nuremberg

were leading figures in the German state and the German armed forces. That was the remarkable contribution of Nuremberg to the war crimes field. We weren't content to look and chase the small band but to look where the real responsibility lay. We'd therefore didn't deal with the question of the defense of a superior order at a lower level. But I entirely agree with the formulation of the principles of Nuremberg that Telford Taylor as enunciated and what is significant about Nuremberg is not only that its principles were formulated with such clarity they were declaratory of international law and they were given added significance when the General Assembly of the United Nations confirmed and Absolom them and therefore they were made applicable universally though then and now.

Principles Did you believe then and do you believe now should apply to all subsequent warfare applied as much to the activities of my own country as to America or Russia or North Vietnam or anyone else. And the tragedy is being that there is no hope that an international criminal tribunal 90 to prosecute these offenses that wasn't achieved and have let me go in Cirebon scares me interrupting could we go into the question of tribunals in our last section and can I ask you now is there any way in which the Vietnam War as you understand it does not qualify as war or warfare by your understanding of the Nuremberg definition. I don't know the time very anxious to get involved in the merits of the Vietnam hostilities themselves. Taylor's book gives a careful analysis of the limitations of the

Vietnam war is concerned but the applicability of principles like war crime and the duty to see that civilians are not directly assaulted and those principles apply as clearly to Vietnam as do any of the seven Thank you very much for coming back to London. We're not only German but Japanese leaders were tried for war crimes after World War 2. One of the most famous was general his American defense counsel was a frank real lawyer who is now president of Metro media broadcasting. We asked Mr. Riehl whether he thinks the world war two trials made new international law and whether the United States is now bound by it. The precedents established in the post-World War to war crimes trials at. Nuremberg Tokyo by international tribunals. And those established by American military commissions to some extent were new. Especially

the international tribunals as I understand it there been no such trials before. And. There was a trial of. General Yamashita and some other Japanese generals afterward. That established as a new principle new to our system of justice particularly in the case of General you mentioned it. Because that established the principle that a commander is responsible for the actions of its troops the criminal actions of his troops in violating the laws of war. Even though he may have had no connection with them any knowledge of them and a complicity in them whatsoever. And that certainly was a new principle. As to whether or not we are bound by these things. Well the theory of our Anglo-Saxon law is that we're bound by precedence. And the further theory is that we have but one law for rich and poor for Victor and vanquished for generals and lieutenants and under that theory yes we're bound. Mr. Riehl defended Japanese accused of war crimes in Berlin tonight is

Dr. Alford Zeigler who was defense counsel for Rudolf it was deputy who was still in prison doctors Idol is now a professor of law in Munich. Doctors I don't generally know ask you since these principles were applied to your country at Nuremberg in 1945. Do you think the nations which applied them including the United States are now bound by that.