Nuremberg and Vietnam (Reel 2)

Alford Zeigler who was defense counsel for Rudolf Hess Hitler's deputy were still in prison doctors Idol is now a professor of law in Munich. Doctors I don't then I 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 them. You know I don't. Yes so I am of the opinion that all states are bound by the your event principles as you did on the other hand you would have to take into consideration that you may not only want crimes and crimes against humanity dealt with in Nuremburg that led to war as such a crime against peace when it was being dealt with. And to this extent I must say that a principle has been violated which forms part of any civilized legal system and means

that nobody can be condemned because of an act which was not. Punishable at the time the act was committed. It is true that the law as a means of enforcing believe objectives there has been no legal principle and there is at this time no legal principle according to which a minister or a general officer can be convicted because of the conduct of this war can be held responsible personally and the criminal law. His second objection would have to be raised is that only one of the two sides was accused that the other party which also committed war crimes undoubtedly could not be held responsible. Recall the

attacks on Liston and the dropping of nuclear bombs on Hiroshima and Nagasaki. Yes and I interrupt we have made that point ourselves here this evening in New York. Could I just ask you in person do you believe yourself that the Nuremberg principles apply to the warfare in Vietnam. Yes indeed that principals have to give all of that to the extent that the Vietnam War is an international dispute in which on the one hand the armed forces of South Vietnam and the United States are involved. And on the other hand the policies of North Vietnam. Thank you very much doctors I will be coming back later. Mr. Taylor would you like to come back on any of these arguments just for a moment yes. Dr. sidles two points about crimes against peace being as he put it ex post facto and Victor's judging vanquished at Nuremberg are of course the

two arguments have been most commonly made in derogation Nuremberg trials but they aren't so important I think this afternoon because the trials of Lieutenant Calley and others growing out of Vietnam are trials by our own authorities of our own them and they do not raise these problems. As far as is concerned I think it's clear that he hasn't drawn any sharp issue with what I said and I quite agree with him that there is a degree of folklore about Nuremberg I picked up a student pamphlet at Columbia which should inform me that my country has established that a citizen must not go along with policies he believes to be wrong. That's what the Nuremberg trials were all about. Well of course they don't stand for anything like that. At the same time while we shouldn't regard them too broadly I think we're using Nuremberg here as a shorthand expression for much more than Nuremberg alone. We're talking about the other trials one of which Mr. Riehl mentioned. We're also talking about the 1949 post Nuremberg amendments to the Geneva Conventions which contain provisions very relevant to the warfare in

Vietnam. Mr. Fisher Do you want to come back. No I very briefly I think while there may be some difference between Professor Taylor general Daler and I as to how we would formulate the Nuremberg Principles the fact they're generally affable war crimes the laws of war to Vietnam. I wouldn't dispute. I would however not like to let this portion pass without expressing quite a vigorous dissent from Mr. Riehl statement as to what the Supreme Court held. In the case. I don't think that they held tall that General was an underwriter so to speak of every war crime by his command I think they held it under the circumstance I think will come into the question of responsibility in our law section. Jones in London would you want to come back in this discussion. Is the fact that the element of personal Did election by the defendant was established in abundance. We approach the trial with a view to establishing that personal responsibility and there

is no doubt that that was done to an extreme degree so that to that extent it presented an easier task than perhaps the American authorities have gotten some of the cases that are arising and will arise out of the Vietnam War. Thank you very much. Now let's turn to the second major question this evening. Has the United States actually violated the laws of war we've been hearing about in Vietnam. Now at the heart of this question is the kind of war it's been in Vietnam in the manner in which the United States has fought it. Yet presented the American military with enormous tactical problems. It was the first major war between a sophisticated mechanized army and a largely guerrilla force. There was no front line. It was difficult to tell who the enemy was. They wore no uniforms. They lived with the civilian population and often used women and children in the fighting.

American tactics had to adjust to this. Helicopter borne of civilian. Attacks and massive chemical raids deep in this new kind of warfare the civilians were constantly at risk. And that brings us to the second part of Mr. Taylor's argument. They conduct of warfare in Vietnam. When I think that any assessments of the validity of American operations in Vietnam and I start out with a realisation that there are important violations on the other side. I will say nothing at

this point about the violation the neutrality of Laos and Cambodia. More important to our present discussion are the references I made earlier to the region even restrictions on fighting by noncombatants. Civilians are not supposed to start to play soldier. It is a violation of the laws of war if they do. These laws are constantly violated by the Vietcong which of course makes the identification of friend and foe all that much more difficult for our troops. This is of course from many of the civilians who do this and out of patriotism Sometimes it's done out of fear of the Viet Cong. But in any event it's the declared policy of the North Vietnamese described at length by General Giap in his book on the subject. Inevitably embarking on a war in which all people are supposed to be involved in or out of uniform is going to lead to extensive loss of

life and raise the level of cruelty. It's the best well in the world on the other side. Mistakes are going to be made. And I think that the leaders of the cong bear a heavy responsibility for starting a kind of warfare which is almost bound to lead to a hard and hard consequences for the civilian population. Despite this the United States and its allies in Vietnam are bound by the laws of war and to our credit I think there's been no effort to suggest that we're not. And now the question remains whether we are and some of our methods and some of the episodes that have taken place in Vietnam violating the laws of war and my position is that that we are quite clearly in some respects more arguably in others. And I'd just like to mention these is the basis for our subsequent discussion. There is of course to begin with the charge often made that our entire intervention in Vietnam is in essence an aggressive

war and therefore in violation of the rule against crimes against peace which was adjudicated in Nuremberg. I personally think this is very difficult to assess one way or the other. Many people think it's quite clear that we are at fault. It's quite clear that we are in a rightful posture there and have a word to say later about the extent to which courts can involve themselves in this. But coming to the more conventional war crimes there are really two categories of things. There are kinds of operations that are open and involved and authorized at the top level. And then there are things that are not so openly avowed and her departure from the rules written in the book so to speak. But which may be the product of lack of training lack of discipline and other faults at the higher level. Among those things which are open and involved are the forced evacuation of civilians from large areas of the countryside and turning

into what had been called free fire zones. I think it is exceedingly dubious some of the Geneva Conventions one of these evacuations are lawful or not. And I think it is even more dubious indeed I would be prepared to take a flat position that it is not lawful to declare large areas free fire zones in which any human being who is found there can be made a target without any inquiry as to whether he's rightfully there or not or what his role has been. Then there is the matter of punitive airstrikes on villages. It is one thing to use aircraft or artillery to wipe out snipers or resistance. It's quite another to go into a village which has been occupied and kill the inhabitants because they have harbored the Vietcong. Indeed it's a violation of our own rules of engagement to do that. The treatment of prisoners of war is another important problem. In which the main allegations have been mistreatment of prisoners by the South Vietnamese but often prisoners whom we have put into their hands. Then finally. There

are episodes like. Which plainly are not in accordance with the orders or the rules of engagement that are high command is distributed there. And the question there is the extent to which these episodes involve responsibility at a higher level because they are the result of shortcomings of training indoctrination and discipline. The extent to which the men do this because they have seen similar conduct tolerated by their officers. The extent to which their conduct is influenced by examples of the officers themselves have set. The extent to which these episodes may be the result of things like a body count policy which may encourage killings for the purpose of inflating the body count. Now I think these things do carry a burden of responsibility to a higher level. There of course is endless argument about how often these things occur how widespread they are. Much depends upon where one has been and what one has seen. But I do believe. That the results of this have been an intolerable

amount of death and destruction which is traceable largely to our conduct of the war and for which we are therefore responsible. Until a month ago Robert Jordan was the general counsel to the United States Mr. Jordan. How do you view Mr. Taylor's argument. Well I think there's no dispute about the applicability of the Geneva Convention and the general principles of Nuremberg. We are talking however about war crimes we're not talking about wise or unwise productive or unproductive policies. Now there are various kinds of war crimes one of the kind that's committed by disappear or. By issuing an order in which case I think responsibility is clear. There are crimes committed by subordinates either on their own initiative or in carrying out those orders and those are normally relatively clear. There's a question of the responsibility of the superior for crimes committed by the subordinate or those of lack of attention to training and other things that Professor Taylor has mentioned.

Now in Vietnam I think one of the tragedies of this whole exercise to me is that in ministration of the war by General Westmoreland has been highly criticized in part by people who use Professor tailless book as a point of departure and then expand from there. The delegate to the international committee the Red Cross in Saigon commented on the Mac V directives saying it was a brilliant expression of the liberal unrealistic attitude. This text could very well be a most important one in the history of the humanitarian law. For the first time the government goes far beyond the requirements of the Geneva Convention in official instruction to its armed forces. The dreams of the day or the realities of tomorrow and the day those definitions are similar ones will become embodied in an international treaty will be a great one for man concerned about the protection of men who cannot protect themselves. May it then be remembered that this light first shone in the darkness. The tragic war in Vietnam and I think of

Professor Taylor agrees. He refers to the the overriding directives I think is impeccable. But there's a lot more there than the overriding directives. A review of the records will indicate constant attention to the subject of war crimes incidents done Fourchon happenings in General Westmoreland's commanders conferences and these are eyeball to eyeball discussions with commanders. There was a great deal of attention for example to assuring that every person in Vietnam to the extent possible every soldier had the little pocket card the nine rules that tells him how you ought to treat prisoners and these things were issued and re-issued because of the turnover and because I was in a Taurus about not keeping things that they were supposed to keep. There were changes in procedures. The free fire zone turned out to be an unfortunate term and was changed to specified strike zone because it did bring about some things I think that the people in Vietnam the in general was more and others recognized were not desirable

and. The search and destroy term for example I think sometimes led to the wrong connotation and that was changed to other expressions like clear and hold and things of that kind. But there were a lot of prosecutions a lot of attention and it seems to me quite unfortunate to try to compare the situation with General Westmoreland Vietnam with that of General. It's clear from you when you examine the Nuremberg Preston's I believe the high command case and others but the principle of absolute liability was not established there. The court in that case referred to the crimes is so widespread as to time an area that they had to be either willfully permitted or secretly ordered by the accused in the reviewing authorities took essentially the same position. Now there is in this book what I might call a strategic charge with respect to the conduct the war leaving aside the question of how we got in

Accords. The question of whether we pursued basically a wrong military policy there. And it seems to me that that issue was reasonably well established at Nuremberg. In the case of General rindu LEC and others that faulty judgment does not constitute a war crime. Certainly not in all cases and that the allowable standard is not hindsight. Perhaps the most important. Element here though is the tactical charge. What is in fact happened in the villages what about these attacks what's going on in the free fire zones. Now I think there's a great deal of misunderstanding on Professor Taylor's part but on the part of many who read his book about the role of civilians in war civilians in war have always been killed and injured and when they become mixed in the war zone and attacks or saw it on military objectives there is no

recognized principle the Law of War says that civilians were killed and the killing of them constitutes a war crime. The Hague Convention recognizes that defended cities and villages may be attacked and of course you get into the question of what is a defended and what isn't undefended. Location. I think that in these cases one has to pay a great deal of attention to the fact of the particular case there's no question that unjustified things have occurred. No one I think in responsibility would deny that we have the callee. We have adequate other evidence of that. I have not been able to persuade myself by talking to many people who have been in Vietnam that there is a widespread and conscious policy that the whole conduct of the war constitutes a war crime. I've seen a lot of attention to rules of engagement in great detail. A lot of effort to make men understand them and I think one thing that particularly needs to be understood is that the concepts like the free fire zone the free fire zone

established a political clearance for operations in an area it did not suspend the rules of engagement. The rules of engagement still apply and you have to. You might operate there but you still have to operate within the rules of engagement. Now some people undoubtedly did not but the rule was that they were supposed to. It is very difficult to discriminate between friend and foe. In Vietnam in the enemy of my conscious choices brought the war to the villages and one reason is because it makes it more difficult to fight. Another reason is because the enemy understands our reluctance to cause suffering to civilians and by operating in these areas he recognizes that the restraint of the United States its concern for civilians will be a factor that will hold it back and will keep it from conducting the kinds of operations that no doubt many other countries would not would not hesitate to conduct with respect relocations. I simply have to I think disagree slightly with Professor Taylor on that

Article 49 of the 49 Geneva Convention on civilians may or may not apply but let's assume that it does it has provisions in there some of which refers to in his book which permit legal relocation of civilians for their own protection and the like to refer to the UN Secretary General's 970 report to the General Assembly on respect for human rights and armed conflict. What you said the most effective way of minimizing or eliminating the risk to civilians would be to make systematic efforts to the effect that civilians do not remain in areas where dangers would be prevalent and a little later on it talks about efforts to ensure that civilians are removed from kept out of the areas where conditions would be likely to place them in jeopardy or to expose him to the hazards of warfare. So there is one expression of you should cast a slightly different light on the role of civilian relocations.

So now we have two somewhat different views of the United States Army's conduct in Vietnam before we come back to these two gentlemen we're going to hear some more opinions from five men who've all actually been in Vietnam during the war and all have seen it from different angles. First John Kerry a Navy gunboat commander who was highly decorated for his service in Vietnam. Since his return he's become a leader of the Vietnam Veterans Against the War. And during recent demonstrations in Washington he publicly threw away all his medals. Mr. Kerry we've heard the directives from Saigon described by Mr. Fischer just now as brilliant expositions of international law as an officer in Vietnam. How clearly were you made aware of the high command's policies on the treatment of civilians. Well on the treatment of civilians we were really not made aware of a great deal on the rules of engagement. Certainly this was a very clear cut well defined article which we

could read and in fact had to read and have to sign a piece of paper stating that we had read it and understood it. But rules of engagement are literally just that. They have rules which define when you will really return fire. And much of the operational aspects of Vietnam in the free fire zones was I would liken it at least to perhaps a bombing mission where bombers fly over the area and drop bombs on a preordained target. Whether or not anybody has fired at them that is the mission. And within the free fire zones in Vietnam those of us who took part there went into these zones with the stated mission of shooting at targets. Just a minute Mr. Kerry that you were you were a gunboat commander and get around on the rivers in Vietnam. How do you know about free fire zones. Because we operated within them all the time I operated in the. Con Delta which is has a significant number of free fire zones and in fact the entire

peninsula where we engaged in most of our action was during the period I was there a free fire zone and our missions literally took us into those rivers with orders to fire on the huts along the river banks to sink sand pans and we occasionally went in with Navy captains with the Navy commanders who would give the order open fire whether or not we'd been fired on. And we would destroy every hut along that river bank and sink every sampan in sight. Do you have any personal experience of actually being directed or encouraged to treat civilians in a way you thought unreasonable if not unlawful and reasonable. Well that alone was a way of treating them unreasonably because if civilians were in the area and weren't familiar with our boats or our presence their natural tendency was to run. And the moment they run according to the rules of engagement you could open fire on them. Therefore you were really firing on people that you had no confirmation with or otherwise. And the

result was that grandmothers and grandfathers and children would take off for cover when we came and could legitimately be cut as the sea. Your experience in the rivers in the Delta as a gunboat commander was nonetheless limited geographically. How can you be sure that what you say has a general validity. First of all it wasn't that limited geographically because I served in camera and I served in both which is on one side of the delta. I was in almost every river in the Delta as well as on the Cambodian border and I saw a great deal of action with the 9th Infantry troops with members of the mobile Riverine Force as well as with the patrol a small river patrol boats and the coastal patrols. And merely our use of harassment and interdiction fire which was firing the mortars into an area the coordinates of which had been given to us by a tactical operation center somewhere in Vietnam. That alone was indiscriminate

firing on a target which we could neither see nor determined Thank you. And it is widespread. Thank you we're going to have to move on. Let's turn to General Victor H Krulak is a former commander of the Marines in the Pacific. And before that he was a special presidential advisor on counterinsurgency and the Vietnam War and he spent a lot of time in Vietnam. General can you tell us what were the rules for the treatment of civilians in Vietnam as you understand them. I suppose I could best translated in terms of continuing Mr. Taylor's discussion of people and resettlement. I would feel here and I'm I'm very timid about saying there's no. Everyone has been polite up to now. I didn't saying it but I don't believe that Mr. Taylor quite understands the circumstances. He speaks in his book of mass routing and removal. The simple fact is no one really knows how many South

Vietnamese have been resettled or for what reasons. How many of them have come willingly from their habitation. How many of them have come unwillingly. You see they have been involved in a war for the better part of a generation and they have been the battlefield of that war. In many cases they have abandoned their homes to escape the nighttime terror and hostility of the Viet Cong. In other cases they have abandoned their homes to get out of the battlefield because they were the objects of fire from both sides but nobody knows how many have done it or for what reasons I might point out to Mr. Taylor that barbwire is not a characteristic of the areas into which these individuals have been resettled and indeed one of the real problems has been the oversaturation of some of them because of their popularity. So you see it is not an open and shut thing. It is not a

mass uprooting and removal of a people. And it has little in common indeed with the. Geneva Convention alteration which speaks to occupied territory and grow. Grew up out of the practice to counter the German action of mass deportation of slave labor. General could we when we come to the general discussion this period could we come back to this question of moving of civilian population and may I ask you in view of the assurances we've heard that every effort was made to make sure the troops understood directives. Can you tell me as a commander in the region yourself was often in Vietnam what efforts were made and were you satisfied that they were actually carried out the efforts were extensive and I'm not at all satisfied that they were always carried out to the contrary I'm quite sure that they were not after all.

Haven't we had trials of individuals who failed to carry them out. Of course they were not carried out. We're dealing with human frailty here but in the main There was a conscious effort to teach the individual the importance of a fair relationship with the Vietnamese. And you may be sure Mr. McNeil. There are white crosses in our cemeteries now because a young man who leaned over backwards to do just that. No they were not carried out with utter precision but they were they were strongly adhered to by the great mass. Could you tell us. As a former military commander what the military justification was for free fire zones. The name which was later changed as we heard the free fire zones first. I believe that Mr. Jordan used the word political That's quite correct. There were are no free fire zones to my knowledge. That first did not have the concurrence of the political leader of the province chief in each case largely an area in which the people had been made quite aware that this was

going to happen and in many cases an area sparsely populated to 10 or 20 miles. Sometimes more populous. In any case it was not a surprise to the occupants or former occupants. I might point out that with respect to free fire zones Mr Taylor makes a point that he sees nothing wrong with the bombing of North Vietnam where nothing whatever was done to take care of women and children and remove them were.