Nuremberg and Vietnam (Reel 3)

What experience in government was appointed the civilian head of the top level investigation ordered by the Pentagon into the MI LA incident. Mr. Craig your report on the lie led to charges against 14 officers as high as General close to the divisional commander. Why did you feel that responsibility went no higher. Essentially it was a question of how high the information had reached our inquiry was limited to determining the adequacy of the immediate reports and investigation that had. Been undertaken following the incident. You'll recall that the facts of me lie lay buried for. Over a year and it was only when a former serviceman. Brought the matter to the attention of the Defense Department in Washington and the. Various congressional leaders that there was the investigation of which I was a

part some 20 months after the event. Do you think as Mr. Taylor suggests that there should be a full inquiry into higher responsibility. If we look at a situation such as an me lie. I don't believe that a further investigation would be very productive. We conducted an exhaustive investigation. It will in due course be made a matter of public record present time. There are court martial proceedings pending. And I'm not in a position where I can speak about the findings of our investigation but this will I think when it is a matter of public record. Show what at least in this situation went on. It's not just not quite clear do you think responsibility should go higher than the

officers you want to charged or should stay at those officers charged or who may be charged. So far as the. Passing up of responsibility I think that. It must be a conscious guilt it must be a culpable guilt that is involved and that where information does not proceed where there is not an intent to violate a legal principle that there there is no criminal liability and it would be inappropriate. Thank you sir. Now we are Strunk real generally mashes defense counsel whether here agrees with Mr Taylor the principles established by the master case are of great importance in defining the criminal responsibility for war crimes in Vietnam. I'm afraid that it's very clear under the rule as laid down by the United States Supreme Court in the case. That in view of the finding of guilt of Lieutenant Calley because of events which occurred it's on me.

Every important general officer in the chain of command. In the American army. Is responsible criminally for what occurred. This is all the way from the. Commander in Chief who at that time was President Lyndon B Johnson. Through General Westmoreland who held a position similar to that of General Yamashita in the Philippines. Now what I mean by that is this. If I can explain for a moment. In the case the United States Supreme Court. Over the strenuous objections of defense counsel of which I was one establish the principle. But it made no difference. The general you Masha didn't know what was going on and couldn't have known what was going on didn't order didn't come down didn't have any direct connection with these atrocities whatsoever. But because of atrocities which were identical in many cases with the evidence in the catalogue case of identical identical. So when the provocation because it was a war against guerillas.

Because everybody's atrocities the United States Supreme Court upheld the finding of a military commission that General Yamashita was even though he had no connection with them whatsoever simply because he was the commander in chief. Now as I said before applying a precedent. Law is based on precedent. If we apply. We have no choice not only to try. The former President Johnson and General Westmoreland but in view of the finding that these things did occur in the Cali case the only remaining fact is were these men in the chain of command. There's no doubt about it. We would literally have to convict. Former President Johnson General Westmoreland and every other general officer in the chain of command. I think it's a terrible thing and I don't think we should do it. I think we're faced with a serious dilemma. I think that the remedy should be simply to admit forthrightly face the fact that the case was a

mistake. It was badly wrong. That we should not and must not. Convict people for something they do or didn't do but because of the position they held. But further than that I think that these were crimes trials and I don't restrict it to the trial at all. I think they were all a mistake. I think there were exercises basically in vengeance rather than in the law. And I think it's most. Important that we recognize the fact. That essentially what Iraq crimes trial based on a violation of the laws of war debts. Is simply. Tried to distinguish between a good way of killing a person and a bad way. A nice way to fight a war and not the way to fight a war. The implication that it's somehow criminal to shoot a civilian. Point blank range but not criminal to destroy him by bombs from the skies or artillery shells. I come back to the clear implications of a. Round crimes trial.

Which I when you analyze it that it's perfectly acceptable for example to kill babies providing we are sufficiently revolted by the policies of the political leaders of those babies. RAR is a system of carrying out a political enterprise trying to achieve a political end by killing people. I think we've got to face up to the fact that war itself. Is the evil that war itself is the crime and that you cannot conduct this criminal enterprise by legal means. Sir when Jones in London as a another participant in the work to work crimes trials do you agree with Mr. Riehl that this was a vengeance rather than a law and that the whole exercise is pointless. No certainly not. I think it is essential to have the Nuremberg trial and the other trials first of all to expose the crimes that had been committed so that the record would be available for all time. But secondly to set

standards for future behavior. War is of course the supreme crime. But at least one can hope that criminal as aggressive war is the number of dead babies may be diminished in the furtherance of the laws of the Geneva Convention and the laws of war are directed to introduce as much pity and mercy into war making this possible. So as a reverend just one would like to ask whether you are taking the question of your master principle and applying it to Vietnam. Do you think would you agree with those who think that the guilt should go. I think that if the facts prove that there was knowledge of the crimes of dua being committed all that those higher up or to have known of what is taking place and took no steps to prevent them happening that is responsibility. After all the military Kamandi in particularly as a part of

c'mon here's the part of example he has to protect those within the area of his command is a duty to protect civilians that Field Marshal Fine men Stan was convicted of Hamburg because it was found that he had failed to exercise that duty. That is a clear duty in the military command and he is the part of life and it is those below him of primarily the duty to a bay he has a higher duty to see that war is conducted within the limits of the laws of war as well of course as is of achieving victory. That's quite a distinction isn't it between amount as having knowledge and being in a position where they opt to have knowledge. Yes I think that is a distinction. But if crimes are sufficiently prevalent or if that means of investigating whether crimes are going on in these I understand exist to the full in Vietnam. It is a surprising situation. If war crimes. Ah being perpetrated on a

scale which is alleged to be taking place which the military commanders have no knowledge. So Reverend Jones thank you very much Mr Robert Jordan. As a recent into reason your lawyer for the Army what do you think of Mr. Taylor's legal argument that the responsibility for war crimes in Vietnam must be taken higher by the standards that your predecessors applied 25 years ago. Well of course if you want to talk about the overall conduct of the war as a as a political exercise that's one thing we did it that's very difficult but we were trying to avoid that let's talk about the problem of the responsibility flowing up from the various acts of war crimes that occur in the field. And I'd just like to read about a dozen lines from the high command keys. You're a bird. Modern war entails a large major of decentralisation high command you cannot keep completely informed of the details of military operations of subordinates and most assuredly not of administrative measures. He has a right to assume that details and

trusted to responsible subordinates will be legally executed. There must be personal der election that can occur only where the act is directly traceable to him or where his failure to properly supervise his subordinates constitutes criminal negligence on his part. In the latter case it must be a personal neglect amounting to wanton immoral disregard of the action of his subordinates amounting to acquiescence. I believe that is the standard of Nuremberg and I don't believe you should do is really inconsistent with that. I think that's a standard we ought to be applying to day in and by that standard. By and large superiors in Vietnam would not be held accountable. If those standards applied they would be held accountable. If those standards were met they would be held accountable though if they if they met these rather restrictive terms about the wanton immoral disregard and so forth and yes they would be accountable they ought to be held accountable.

That's what about this point about commanders who ought to have had knowledge and may not have. Well you know on to a difficult thing to find first of all it's one thing if you have war crimes occurring and you learn about it and you do something about it. There's a lot of evidence that General cruel act is mentioned. That's in fact what's happened in Vietnam you can't prevent everything but that is mean you have to overlook it when it happens and it hasn't been overlooked. Everybody knows a matter of common sense in a large area military operations some of these things are going to occur so everybody's on that kind of notice. But I don't believe anyone's on the kind of notice it's widespread. The place where it is so prevalent that one has to move in and stamp it out I don't believe that the evidence in Vietnam any that I've seen. Would substantiate that you lied to me is an aberration I've seen nothing that even the approximate sir Mr. McCreery Do you accept the criteria that Mr. Jordan puts forth the Nuremberg criteria on the culpability of commanders. Yes in a general way I do. I think that my own

investigations. Would indicate no conscious program of annihilation. In the first instance. And I think that that would be a necessary part of linking. An event to an overall program of unlawful conduct. So far as the gathering of information that is indeed one of the greatest difficulties of this war of finding out what has in fact gone on and in the case of atrocities they can be so localized and contain themselves and this is indeed what was founded that it was something that was capable of being contained simply because of the circumstances of this war. Mr. Turner do you in your book your say.

Paraphrasing according directly I believe that the model in the case of the Army and the model health as you put it of the Army can only be restored if. The Guild of leaders is scrutinised by the same standards that as you say their revered predecessors applied 25 years ago. Do you think the definition Mr. Jordan and Mr. Moore create the criteria they are suggesting or what you mean. Well I think there's no disagreement with a statement of principle. I would like to comment on what Mr. Riehl said about this very point and I'm sorry he's not here because I would have to challenge you very explicitly. His interpretation of the decision and you marched in what she have self right in such a valuable service. He says the court held that a commander could be held responsible even if he didn't know about things. But in his own book he quotes the Chief Justice Stone as majority opinion in that case and what the court ruled was that an army commander has a duty to take such appropriate measures as are within his power to control the troops under his command which I take it you

couldn't do unless he knew about them. Now that seems to me a perfectly sound principle whether you in fact had the power or was a question of fact on which the Supreme Court said the military commissions judgment was conclusive but I think the decision in principle is perfectly sound. Could I make one comment on what Mr Roache said before I was going to go back to Mr. Rhodes Why don't you make your comment and then we'll go back to him when I was about to be a little more impolite and gentle cool act and say that I don't think Mr. Obama's invocation of the historical approaches has clarified the situation here. I don't think that we've been talking about a teller without a Jago. It seems to me that we have all along had in mind that the North Vietnamese conduct of operations to get conk conduct of operations the use of civilians and so forth is a large part of the precipitating factor here. Mr Roach says that the North Vietnamese invaded South Vietnam assuming that to be true if he means it that in any way relaxes our own obligations under the laws of war. I think the answer is plainly no. Nor do I think the issue here is

whether we should be compared to the Nazis. The question is whether we are or are not complying with the laws of war that we ourselves agreed to be bound by. And finally the analogy between the president's responsibility and Governor Reagan seems to me quite out of place. The president is commander in chief and is in the chain of command over the generals and others under him. Governor Reagan is not in the chain of command over whoever it was that killed those people in California. Mr Roach I was simply trying to make the point on responsibility. That the president of the United States is responsible for everything that happens just as the governor of California is responsible for everything that happens under his jurisdiction. I do not believe that one can pin objective guilt on a president on the basis of actions which they in no way had any knowledge of nor did they blind themselves deliberately to and in fact they were subjectively innocent. And I think that the attempt to launch this thing to a ploy a domino

theory of guilt into this in a situation. Is a mistake. Does anybody else want to come back quickly. Yes Mr. Kerik I. Think it's unfortunate that Mr. Rove made that historical interpretation he has because it gets us into the question which we don't have time for a big just an unjust war and I think it very strange that he begins his historical analysis in 1957 ignoring the United States is involved with the French and for that I'm afraid Mr. Kerry that we don't have that is the time we have available to make your observation. Yes we know I've heard all the arguments. The moment has come to turn to our three eminent jurists for a summing up and judgment. Three questions for them to consider are on the basis of what you've heard tonight. Has it been established by Mr. Telford Taylor and others that first the principles of international law as applied at Nuremberg are binding on the United States and the other belligerence in Vietnam. Second that in

addition to acknowledged atrocities like American military conduct in Vietnam has included methods of warfare that violate the laws of war. And third that American military and political leaders are responsible for such violations under international law and that the guilt for atrocities like me lie goes higher than the men so far charged. Now first can we hear from L.A. Law to protect in Britain. While it's impossible in a summary judgment like this to do justice to the complex and important issues at stake. But one thing's absolutely clear on all sides that the principles of international as applied at Nuremberg binding on the US and on the other belligerence in Vietnam but it's worthwhile remembering what those principles are the main ones are that it is illegal to start and wage an aggressive war. The other one is of course the obvious proposition of liability for war crimes and the possibility that responsibility may

go up the line not turning to the second question whether the American methods of war in Vietnam violate the rules of war. Well again it's difficult to express a view about this. The measures we've heard described like free fire forced evacuations saturation bombing and so on may well have elements of illegality in them. But it depends in each particular case what the circumstances are. We've heard a little bit tonight about the doctrines of military necessity and the possibility of reprisals. And we have to apply those concepts in any given case. And we're not hearing more about an individual accusation. One can't do that. There remains the question of whether American military and political leaders are responsible for these violations under international law or not. It's important to appreciate that just because a soldier commits an offense that does not mean that his superior

officer necessarily also labile the superior is only liable if he actually ordered the offense or if he so had a reasonable basis for knowing of the offense and did nothing about it. Now this will cover the ordinary chain of command in the field. There is also the question of whether you can go beyond that to attribute responsibility to the American superior military and political readers. I'm very doubtful about this in respect of war crimes in the field. I'm rather persuaded by the arguments I've heard tonight about the young Ashita case that the Supreme Court faced the responsibility of the commanding officer in that case rather too high. And there are decisions of war crimes tribunals in Europe that placed it somewhat lower. But with students with a question which I think if I'm wrong at the present time as to the responsibility of the American political leaders for the war in Vietnam the question of whether the

war in Vietnam is an illegal war. If it is an illegal war they are liable. But Reagan did tell him so. As explained how difficult it is in the state of our present knowledge to assess the conditions of mind of the people concerned and all effect and one always has to bear in mind in this situation that it's no good to Woods going back over the ground and looking at it with the benefit of hindsight and saying they should have done otherwise. Thank you very much for such a large effect. Can we go now to Berlin and professors I will hold until then. I am in Wallace complete agreement with what talked a lot about just so that I too fully agree that the rules of Nuremberg valid international law applicable to all or all the parties in the Vietnam conflict. If they were applicable in other cases as to the second question we have heard very many

corn contre and I think of all the things I am convinced that evacuation measures of location seem to be compatible with the Geneva Convention and hence could not in any case be conjoined and leave him as a warrior. I am definitely not so sure about the free fire zones where we were very good. Controversial interpretations which seem to make it seem quite all right this is a political measure and if you can and if people understood the notion of saying that everything was alright well they misunderstood these orders if that was the case well those were unfortunate things but that would be about the putatively are strikes again much for me to justify the measure that's here. I would look at least as sponsibility. Well but they're out of the question. Sleep the way up here.

I am quite in agreement with what was quoted. Your high command case and under these circumstances I do not think that the one thing this league of. Life and of war can be against commanders and you may perhaps be understood as imposing moral standards for if you will come out of the field and not become honest but I am also more or less convince I'm quite convinced when one has been saved by a president for Taylor him so that perhaps she took when I was over just like in trying to impose who have a duty in the field to observe. I want to conclude

by saying that I fully agree with the sentiment that war itself is an evil and but just because it is an evil which unfortunately as it is to be with us it is so very important to take as strong as possible measures to ensure that the rules of war human to lose a war so heavily armed conflict. Thank you for her says I to her. Thank you very much. And finally judge in New York. Thank you. I think it is quite clear to everyone that this is not an actual trial. We are not here trying the United States of America. We are not trying any particular individual. We are not pronouncing on the guilt or innocence of any particular individual whether enlisted in our officer.

We have had to present ation of certain bits of evidence. It has been impossible obviously here for all of the available evidence to be presented. We have been told for instance in one investigation that they are not free to release that. The details are secured in that investigation. Certain measures are sub judice. I think it must also be clear and I think it is clear from what professor a lot of packed professors have said that we in expressing an opinion. Cannot base ourselves on want we have heard here tonight. It is inevitable that we each one of us are some odd affected by views which we have held as a result of our previous studies. Questions of this kind because we have all three of us been professor

of international law and have had occasion to study these matters. Now as to these specific questions I think the three of us are fully agreed that the principles of Nuremberg do applied to the United States and to it as in Viet Nam. I would put more emphasis than has been put tonight upon the resolution of the General Assembly of the United Nations which was adopted unanimously and the United States participation in that unanimous vote is a factor which must be taken into account and Its Responsibility for observing those rules as rules of international law characterized in that resolution. And the next place. I. Personally feel that we cannot find here any conspiracy to wage aggressive war in any terms comparable to those which were applicable to Hitler's

tried at Nuremberg and I think there is been pretty general agreement that this question of trying the responsibility for starting the war there was the determination of the illegality of the war is a question which probably defies examination by almost any tribunal which could be made available at this time. Moreover I think we must take into account and I think Professor Taylor has brought this to a new book that the crime of aggression has defied definition in spite of efforts over a series of years to decide what the crime of aggression is. Now as to these specific acts it seems to me that we are up against a question of evidence which we are not in a position to weigh at this time. We can only deal in certain principles. One

principle I think is clear that international law has not characterized an aerial bombardment pursy as illegal some killing from the air may be illegal but the mere fact that there has been bombardment of towns does not constitute a crime. Personally I cannot escape that conclusion and I think that this is revealed in all of the testimony tonight that there have been crimes even though some of them may have been. Contrary to orders. And finally since it is so limited I merely wish to express my own opinion on this question of responsibility. If there is an appropriate method an impartial method of determining the validity of charges then I think responsibility must be pinned up and to those who had authority to

forbid to prevent or to punish but who actually directed sanctioned approved or acquiesced in or tolerated the acts in question. It was just him. Thank you very much. Well that is as far as we can pursue these issues this evening for America. Obviously the questions remain. How much further can the United States dare to pursue these allegations of individual or national guilt. Does the nation need to clear its conscience for its own sake or for the sake of world opinion. God not God.