U.S. IN Vietnam: Rationale & Law
Falk, Richard A.
U.S. IN VIETNAM: RATIONALE & LAW A peaceful settlement of the Vietnam war requires some initial conception of a reasonable bargaining position for both sides. In my judgment, the United States...
...The Eisenhower Doctrine implied a broad discretion by the United States government, a discretion that has come increasingly to mean U.S...
...The result is a sort of compromise between pragmatics and law that leads to a failure of achievement and erodes the most basic limitations imposed by international law upon the discretion of states—rules governing the use of military force...
...The United States must supply that assistance...
...Instead, it tempers its use of force to moderate the illegal quality of the action and cut down the level of opposition in its own society...
...Neither of these presuppositions seem to exist and, therefore, what is being tested by our military presence is not a commitment to collective self-defense...
...We label the war in whatever manner justifies our action and then refuse to allow international institutions to pass judgment upon what we do...
...And what is more, Mr...
...is that the Vietcong is the beneficiary mainly of help from North Vietnam, a small state and a member of the region, whereas the Saigon regime receives help from a great power with neither a physical nor traditional presence in Southeast Asia...
...The U.S...
...In effect, this combination of massive military intervention and political domination suggests that the original war in which the United States came to the defense of an embattled Saigon government has been lost and that a new one has begun in which the United States pits its own military might against the challenge of the Vietcong...
...Vice President Humphrey's tour of Southeast Asia at the start of 1966 adds further to this picture of the United States acting on its own to guarantee governments of the area unlimited support in the event they are confronted with an internal or external enemy that we and they identify with Communism...
...The Saigon regime can be sustained only by a spiraling of U.S...
...The Communist powers have their own symmetrical doctrine to justify interventions in civil wars, based upon rendering support for "wars of national liberation...
...A further asymmetry unfavorable to the U.S...
...Such a conclusion seems to overlook the discrepancy between the unilateral quality of the United States' presence in Vietnam and the collective and consultative nature of the SEATO arrangement...
...This explanation presupposes an armed attack from North Vietnam and a legitimately vested political authority in South Vietnam competent to claim self-defense...
...From the viewpoint of the victim of attack it is better to be defended effectively from the outset or not at all...
...Such a premise for negotiations is obviously unacceptable to the NLF, but even Hanoi—however much it might like to control the future of South Vietnam—is naturally reluctant to concede this American interpretation of the war...
...Even Vietnam has not led to a softening of this general commitment to a global crusade against Communism...
...military involvement in conflicts that are in part, at least, civil wars...
...intervention in it assumes an imperial prerogative to control the outcome of civil wars in which victory might otherwise be won by a regime with leftist sympathies or personnel...
...It has also led the United States to repudiate increasingly the procedures of the UN that it did so much to create...
...Our continuing refusal to recognize the Vietcong as a formal participant in a peace settlement underscores our unreasonableness...
...This fortunate fact, if properly integrated into decision-making, suggests a beneficial set of limits upon American foreign policy...
...When examined, this promise turns out to be nothing more substantial than the SEATO obligation stressed by Secretary Rusk...
...All of which suggests how absurd it is to find justification in the SEATO treaty for an essentially unilateral operation...
...doctrine and practice with respect to using military power—even in comparison to China, the state alleged to be most destructive of minimum conceptions of world order...
...Mao went on to say, "Of course, whenever a liberation struggle existed China would publish statements and call demonstrations to support it...
...Either the hawkish outlook must totally prevail with all its attendant risks and policies, including possibly the atomic mining of Haiphong and the nuclear bombing of Hanoi and China, or there must be a rather awkward retreat from the present position of military crusade, including possibly a concession of defeat in Vietnam, unilateral withdrawal, and a fundamental repudiation of the American option to use military power for purposes other than for genuine instances of self-defense against armed attack...
...The commitment to defend societies against Communist aggression had as its premises, first, the existence of a monolithic Stalinism active in world affairs, and second, the vulnerability of Western Europe to subversion after World War II...
...As a preliminary adaptation to political reality, then, it is important for the United States to acknowledge the war for what it primarily is—a civil war in which both sides have received extensive military support and political guidance from outside states...
...More than any other, this asymmetry intensifies the perception of the war as a Western effort to frustrate the realization of Asian ambitions in the post-colonial period...
...Thus, the recent use of American military power in the Dominican Republic is an extreme instance of the claims originated in the Eisenhower Doctrine...
...The regional framework, then, operates as a legitimizing umbrella for decisions by single nations to use military power...
...Also, given the Rusk view that each member of SEATO determines its own military response, it is possible to imagine two members of SEATO coming to opposite conclusions about who is the wrongful faction in a civil war and then engage in a war against one another, each acting to carry out its so-called fundamental SEATO obligation...
...spokesmen contend that we are fighting in Vietnam to uphold the principles of collective self-defense...
...Both in word and deed, it is the United States that is using armies in flagrant disregard of the fundamental rules of world order and adopting the role of an imperial power accountable only to itself...
...Such a stand also tended to vindicate the American claims that it was not using the United Nations solely as a weapon in the cold war...
...commitment took explicit account of the inability of Great Britain to continue giving support to Greece...
...commitment beyond Europe to embrace the far less stable nation-states of the Middle East...
...No one argued during the Spanish Civil War that the massive interventions by the Germans and the Italians on the side of Franco would have entitled the Soviet Union, as an ally of the incumbent, to bomb Germany and Italy in "self-defense" of Spain...
...The consequence is an image of impotent unrestraint...
...It was not previously thought to cover interventions in civil wars...
...It would imply, for instance, that France is violating the treaty because it has refused to support our intervention...
...One would have hoped that the minimum lesson of the war would be to convince the Administration that new procedures for collective responsibility and action must be devised to avoid a repetition of the Vietnamese nightmare...
...The rule against armed attack of the kind present in Korea or Suez is a basic norm of world order which the United Nations and its membership is committed to uphold...
...That is, it will be necessary to recognize that the NLF commands more military power and political stability than Saigon...
...To justify defending such a government is to pervert the notion of selfdefense— as the United States correctly felt the Russians perverted the same notion when they militarily intervened in Hungary to suppress the Nagy uprising in 1956...
...Succesive regimes have also been brought into being, in part at least, by U.S...
...military intervention anywhere, if necessary to defend a government from a Communist takeover...
...This interpretation leads to the conclusion that in any settlement Saigon and the NLF must participate and negotiate on the basis of formal equality...
...In my judgment, the United States has not sufficiently shown that it understands or is prepared to negotiate on such a basis...
...The artificiality of this posture reinforces the widespread impression that the United States is using its great power to intervene brutally— and futilely—in a war that was and should have remained essentially Asian in character, that is, truly subject to regional control...
...military and economic power...
...One wonders, also, whether a face-saving settlement in Vietnam attained after many years of protracted violence will reassure countries about the benefit of U.S...
...This earlier expectation cannot be overlooked in trying to determine the terms for a fair settlement of the present war in Vietnam...
...Furthermore, no criteria were offered to distinguish aggression from revolution or civil strife...
...Suppose the worst fears of Washington are realized and the American commitment is not taken as seriously as before—is this necessarily detrimental to national or global interests...
...The United States is, however, a country in which a consensus evidently can be mobilized in support of action that is at once moderately illegal and ineffective, but may nevertheless be very costly...
...Rusk went on to say that "it is this fundamental SEATO obligation that has from the outset guided our actions in South Vietnam...
...The United States has neither a special insight into nor a special vulnerability to such aggression...
...The dangers of the nuclear age and the values of the American policy make the imperialistic alternative highly unpalatable, although increasingly plausible to the extent that the realistic planners of military policy are frustrated by the incompatibility between the American mission in Vietnam and the military means needed to accomplish it...
...For the United States is not the sort of country that can mobilize a consensus within its own society for the effective use of military power when that use is in flagrant disregard of international law...
...The American role at the Bay of Pigs is the most prominent recent precedent...
...Over and over again President Johnson and his chief lieutenants have emphasized that we are in Vietnam "because we have a promise to keep...
...The policy seems designed to pledge us to go on fighting wars of the Vietnam variety wherever and whenever they break out...
...Bombing of North Vietnam is a dramatic illustration of this process...
...The Eisenhower Doctrine of 1957 crucially expanded American responsibility for the containment of Communism...
...Rusk insisted that unilateral military action was authorized by the SEATO treaty without any obligation for accountability at either the regional or global level: "If the United States determines that an armed attack has occurred against any nation to whom the protection of the treaty applies, then it is obligated 'to act to meet the common danger' without regard to the views or actions of any other treaty member...
...In Vietnam the Saigon regime functions as a puppet government without a real will of its own...
...The United States is not able to altogether cast aside the restraints of international law...
...When applied to Vietnam, the notion that this SEATO framework imposes "an obligation" upon the United States is especially far-fetched...
...Yet the United States took a strong stand in the UN against our closest allies, suggesting the precedence of collective security over the vagaries of alliance politics...
...From military aid to military advisers to ever-increasing military forces—without in any way turning the tide of the war...
...11 Then came a major change...
...The general conception had been that third powers owed a duty of neutrality to both sides in a civil war, but that if intervention did take place on one side it legitimized proportional counter-intervention, but did not create the basis for "action in self-defense...
...but it is dramatically more so to consider that it has a unilateral prerogative, even an obligation, to use its military power to uphold regional security independent of the wishes of the countries that actually comprise the region, and to do all this under the banner of regionalism...
...This new role for U.S...
...At what point does external support for an insurgency become equivalent to an armed attack...
...intervention...
...Bombing is clearly an illegal extension of the civil war to the territory of an external political entity, and not even an extension limited to the destruction of privileged sanctuary given to guerrillas...
...2) it extends the U.S...
...The civil war was won by the Greek government, the situation in Turkey was stabilized, and elsewhere in Western Europe the advance of Communism was halted, in part as a result of large-scale American aid made possible by the Marshall plan...
...The victim of attack, then, is an artificial entity that would not exist to be defended, nor would it request defense, if it had not been created and sustained by U.S...
...In 1965 Mao Tse-tung accurately pointed out in an interview with Edgar Snow that "China gave support to revolutionary movements but not by sending troops...
...And if the negotiations are to succeed, once formal equality is established, it will also be necessary to recognize the factual inequality of the two sides...
...There is no other country to which democratic Greece can turn...
...The result is a self-professed test of will, the outcome of which is made relevant to the whole future of collective self-defense...
...The support given by the United States, then, to the regime of South Vietnam immediately and decisively undermined the expectations of all the principal participants at Geneva in 1954—that is, that the Geneva Agreements, if carried out, would lead eventually to the control of all of Vietnam by the Hanoi government...
...the worst possible reassurance is to be defended ineffectively but at ever-increasing magnitudes in a protracted conflict, the only function of the defense being to avoid the formal acknowledgment of defeat on the part of one's ally...
...Mao might have also added a willingness to send relatively low-level financial and military aid...
...marines were sent to Lebanon to help the shaky Chamoun regime survive internal crises allegedly provoked by external "intervention...
...For one thing, the French lost in 1954 a war fought to control the entire territory of Vietnam...
...Neither the actual political relationships nor the stated objectives of Hanoi bear out the American contention...
...and (4) it anticipates U.S...
...At some point, long since passed, the proxy quality of such a war becomes manifest to all...
...Rusk relied heavily upon a strained construction of Article IV of the SEATO treaty—namely, "each party recognized that aggression by means of armed attack would endanger its own peace and safety, and agrees that it will in that event act to meet the common danger in accordance with its constitutional processes...
...It is a necessary part of the rethinking that might lead to an understanding of what would, under the circumstances in Vietnam, constitute a reasonable set of expectations for a peace settlement...
...some world-wide consensus can usually be mobilized under such circumstances...
...But even the most militant Communist conception of support, the Chinese, falls far short of overt military intervention— except perhaps to offset overt military intervention on the other side...
...opposition to the use of military force by Israel, France, and the United Kingdom in the Suez campaign of 1956...
...In fact, if South Vietnam witnesses the expansion of the concept of collective self-defense to cover responses to interventions on the side of insurgents in a civil war, then the United States is promising a great deal indeed to countries around the globe...
...commitments on a scale that seems out of all proportion to the matching North Vietnamese interventions on the side of the Vietcong...
...This anti-Communist crusade has led to the use of military power by the United States throughout the world...
...V From the American point of view, even if one were to grant the validity of the extravagant role assumed by the United States in world affairs, fighting in Vietnam appears to be the wrong war in the wrong place waged for the wrong reasons...
...It is this realization that has prompted so many experts to commend formal and informal contacts directly with the leadership of the NLF, as against acting as if Hanoi asserts complete control over the insurgents in South Vietnam...
...The war has significant asymmetries both in respect to the scale and visibility of military intervention by outside powers and in terms of the relative independence of the internal faction on whose behalf the intervention is taking place...
...What is important here is the extreme militancy of U.S...
...We have already extended to Greece certain types of relief and economic aid, but these are inadequate...
...Dean Rusk's opening statement to the Senate Foreign Relations Committee in February 1966 reiterated claims of unilateral prerogatives...
...Quite the contrary...
...The American use of military power, however, rested upon the wider justification that North Korea was engaged in a war of conquest initiated by a massive armed attack across an internationally recognized frontier...
...Why is the United States alone willing to sacrifice the lives of its men and pay the enormous costs of waging this unsuccessful and protracted war...
...The security of the United States in traditional terms of national independence is greater than that of any country in the world...
...3) it was formulated in ideological rather than world-order terms...
...III U.S...
...Accommodation of the two attitudes toward foreign policy is obviously unsatisfactory...
...Why are not other countries joining us more vigorously in our Vietnamese effort...
...The war in South Vietnam is not even a good test if the pledge is identified with obligations of collective selfdefense...
...Underlying this expectation that alternative means of promoting security might be developed is the strong belief that there exists a general interest among all countries in preventing aggression against themselves...
...Recently Jean Lacouture has correctly pointed out that at Geneva "The West succeeded in wresting from the victors half the territory and the larger part of the material wealth of Vietnam...
...The point is that the war in Vietnam has reached a level of intensity at which a fundamental orientation becomes essential...
...President Truman's central rationale appeared in a speech to Congress: "Greece must have assistance if it is to become a self-supporting and self-respecting democracy...
...Our special responsibility in the struggle against Communism was reasserted in Korea, with our military power committed nominally as a peace-keeping operation under the auspices of the United Nations, but largely financed and handled under the independent authority of the United States...
...IN VIETNAM: RATIONALE & LAW A peaceful settlement of the Vietnam war requires some initial conception of a reasonable bargaining position for both sides...
...A joint resolution of Congress, at the request of Eisenhower, authorized the President "to use armed force to assist" nations in the Middle East resisting "armed aggression from any country controlled by international communism...
...However, the non-military policy-makers have moderated the use of bombing in such a fashion as to assure that it will not be effective militarily...
...I would identify this reorientation of policy as cosmopolitan isolationism...
...No other nation is willing and able to provide the necessary support for a democratic Greek Government...
...The appearance of defeat has been somewhat avoided by changing the parameters of conflict through a series of very critical escalations of the U.S...
...It is precisely my argument that the United States commitment is excessive—because it is both too unilateral and too extensive...
...It is the United States that seeks to end the war by negotiations undertaken in accord with its wishes, and appears on the international scene as the belligerent opposing the Vietcong...
...It is radical enough for the United States to consider itself a regional power in every part of the non-Communist world except Africa...
...in fact, several successive such "wars" have been "lost...
...Certainly these states are not likely to forgo their independence by seeking from Moscow or Peking what they no longer can obtain fully from Washington...
...And if these countries did object, what could they do, in any event, except seek alternate means to uphold their security...
...This distinction between collective self-defense and counter-intervention is fundamental...
...Part of the true explanation is the degree to which our perceptions have been shaped by a self-created myth of American responsibility...
...military power was advanced without any serious consideration as to how it might affect our obligations to the United Nations, especially the commitment to renounce the use of force in international affairs except in case of self-defense against an armed attack from an external source...
...If the concept of armed attack is restricted to direct border-crossing forms of aggression, then it is relatively easy to identify the situations in which resort to self-defense outside the UN, whether individual or collective, is appropriate...
...In 1947 the Truman Doctrine was formulated specifically to help the government of Greece defeat a Communistled insurgency and to bolster the internal security of Turkey...
...If this is the way the United States deals with collective self-defense, it is not very comforting to those countries truly counting on us...
...The political underpinning of our continued commitment is the belief voiced by President Johnson in his Johns Hopkins speech of April 1965 that "Around the globe from Berlin to Thailand are people whose well-being rests in part on the belief that they can count on us if they are attacked...
...Our policy in Vietnam is an outcome of the crusade against Communism and typifies the pitfalls of accepting an over-generalized commitu ent to fight whenever and wherever there may otherwise result an extention of Communist influence...
...Ho agreed to fall back to the north in exchange for a promise that elections preparing the way for unification would be held in 1956—elections that he had no doubt of winning...
...IV Furthermore, the object of "defense" in Saigon is a regime of remarkably little viability...
...Thus, "to leave Vietnam to its fate would shake the confidence of all these people in the value of an American commitment and in the value of America's word...
...In a sense, then, the war arising out of the 1954 arrangements at Geneva, if its outcome is measured by the original parameters of conflict, has long since been lost...
...The Eisenhower Doctrine is very important because (1) it envisions the active use of military force by the United States in foreign countries, as distinct from the military aid given European countries...
...In fact, the relative invisibility of North Vietnamese military presence reinforces the impression that this second war is still being waged by a relatively autonomous South Vietnamese insurgency, receiving help on such a scale and on such terms as to leave political control, as nearly as we can tell, largely in the hands of the insurgents themselves...
...In general, a deviation from the basic legal restraints governing the use of military force in international affairs has led the United States to undertake action that is both ineffective and unpopular...
...For presumably it is the danger posed by the Soviet Union and China that has led them to seek (or accept) our support...
...To say that Hanoi alone represents "the other side" is to insist upon the fiction that there is no genuine civil war in South Vietnam and that the war has from beginning to end been a consequence of aggression by North Vietnam...
...It implies that the Saigon regime is the only legitimate political elite in South Vietnam, whereas the claims of the NLF to both autonomy and legitimacy are at least as good as, and probably considerably better than, those of Saigon...
...It would appear to be rather widely conceded that the regime of Ngo Dinh Diem, which first repudiated the Geneva concept, was instituted through the United States intervention...
...Despite the great military power of the United States, the Vietcong is said to control over eighty per cent of the country, and to have the ability to bring terror to the cities...
...In the summer of 1958 the Eisenhower Doctrine was invoked when several detachments of U.S...
...The reality of this commitment was further established by U.S...
...support to an extent greater than would non-participation from the outset...
...It is a poor demonstration because of the apparent facts and background of the conflict...
...Reinforcing this norm through bilateral and collective arrangements of collective selfdefense probably serves a constructive role so long as international institutions cannot be relied upon to take effective action in support of a victim of armed attack...
...Not only is there no prospect that dishonoring the pledge, even if we take the leap of imagination needed to believe that it exists, would radiate detrimental consequences...
...The struggle in the Dominican Republic in 1965 was as purely internal as any political struggle can be in the contemporary world, and U.S...
...It is this question that highlights the ambiguity of the American presence, and makes the war in South Vietnam such a poor demonstration of the effectiveness of collective selfdefense as a security device...
...military commitment, especially in terms of the numbers of American troops and the extension of violence to North Vietnam through bombing...
...Suppose our friends from Berlin to Thailand grow more self-reliant or search for alternative allies...
...Such an image seems frequently fostered when the United States casts aside respect for the rules and procedures of international law and embarks on military adventure...
...In retrospect the American stand is especially impressive because the attack on Egypt was partly in response to Egyptian "indirect aggression" in the form of fedayeen raids upon Israel from protected sanctuaries...
...The Vietnam story on escalation is agonizingly familiar...
...The notion of collective self-defense had been generally assumed to apply to the Korea-type war waged by one political entity against another...
...The immediate consequence of such a reorientation of policy would be to rehabilitate the distinction between civil war and international war, and a recognition that the phenomena of civil war must be handled either locally or by community action under the auspices of a regional or international institution, but not conducted as an American operation...
...In fact, the protracted quality of the war in Vietnam may cause more ultimate damage of every sort than if the United States would either conform altogether to governing rules of international law or ignore altogether legal and moral counsels of restraint in its recourse to military power...
...There is no evidence that countries dependent upon our support would object to a settlement of the war in Vietnam even if it meant a partial or total Vietcong victory...
...Under such circumstances external aid to the Vietcong has, of course, also increased, though in a far less flamboyant manner...
...Such recourse to aggression violated in blatant form the fundamental obligation of the United Nations Charter, and the action of the United States in defense of South Korea gave powerful evidence of a national commitment to back up this obligation...
Vol. 13 • May 1966 • No. 3
