U.S. War Crimes: The Guilt at the Top
Johansen, Robert C.
U.S. War Crimes: The Guilt at the Top by ROBERT C. JOHANSEN HPhe conviction of Lieutenant Wil-Ham Calley has belatedly aroused many Americans and should force them to confront the stark...
...he was informed at the time of noncombatant casualties...
...The accused need not have malicious intentions to commit crimes...
...The 1929 and 1949 Geneva conventions dictate that the government that captures prisoners—whether military or civilian—is responsible for their humane treatment, even if they are transferred to an ally...
...American officials knew about the destruction and casualties...
...For example, when the Japanese General Tomoyuki Yamashita failed to keep his troops from committing atrocities as they retreated before American forces in the Philippines, he was tried and convicted, with the confirmation order for his execution bearing the approval of General Douglas MacArthur...
...custody—all these and more have been part of the public record to such an extent that high officials cannot convincingly argue that they were ignorant of such crimes...
...it is especially forbidden— (a) to employ poison or poisoned weapons...
...the shooting of civilians, either at work in their villages or being detained by our forces, by soldiers on the ground or in helicopters...
...The Army's reluctance to see the My Lai investigation carried forward to its logical conclusion was pointed out in the report of the House Armed Services Subcommittee, chaired by Representative F. Edward Hebert of Louisiana, who now heads the parent committee...
...In sieges and bombardments all necessary steps must be taken to spare, as far as possible, buildings dedicated to religion, art, science or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected...
...Obviously, North Vietnam and the Vietcong are not innocent of war crimes, although the enormously more destructive firepower of the United States dwarfs their atrocities by comparison...
...Thus the United States, as a capturing government, cannot escape responsibility for the mistreatment of the prisoners that have been turned over by the American military to South Vietnamese forces which have subjected them to intolerable conditions in prisons, to torture during interrogation, and to executions without trials...
...violations of the treaties on the laws of war, which it had ratified, not only were condoned but became a deliberate part of the American war plan...
...ROBERT C. JOHANSEN is professor of international relations at Manchester College in Indiana and a research associate of the college's Peace Studies Institute...
...The U.S...
...And criminal negligence does not require evil intent...
...Now that the crimes are American, only persons low in the military hierarchy—and no civilians—are being accused of wrongdoing...
...Army's rules of warfare set forth these prohibitions: "The right of belligerents to adopt means of injuring the enemy is not unlimited...
...crimes by the enemy can never excuse our own...
...the poisoning of wells and defoliation of fields of those people merely suspected of harboring or sympathizing with the Vietcong...
...What most Americans fail to comprehend is that to plead for Calley's relative innocence can never, in any way, eliminate American guilt for war crimes...
...In attempting to determine guilt for war crimes in Vietnam, an examination of American policies after World War II is instructive...
...Is the United States legally bound to obey the preceding rules of warfare...
...The study recommended a complete reevaluation of the practice of unrestricted bombing and shelling of the countryside, but the idea was vetoed at the highest levels of American authority in Saigon...
...In any case, crimes by the enemy can never excuse our own...
...The Supreme Court upheld the conviction on the grounds that a commander has a responsibility to know about, and prevent, chronic misbehavior...
...The entire unsystematic investigatory procedure has lacked candor, balanced judgment, a commitment to discover the truth, and a willingness to bring any high official to trial...
...Their provisions must be observed with the same strict regard for both the letter and the spirit of the law which is required with respect to the Constitution and statutes enacted in pursuance thereof...
...Do Americans indeed believe that only men of Calley's rank can be convicted because high office, prestige, and power make other men immune from the requirements of legal conduct...
...But when the same standards of criminal behavior are applied to "us" instead of to "them," must history report that we lacked the courage to examine the conduct of our leaders on the same level that we insisted upon when we were victorious in World War II...
...Army policy, as they understood it, was to take no prisoners in "kill zones...
...to commit any of the foregoing crimes [including 'inhumane acts committed against any civilian population'] are responsible for all acts performed by any persons in execution of such plan...
...In the absence of a special agreement between the belligerents, prisoners of war shall be treated as regards board, lodging, and clothing on the same footing as the troops of the Government who [sic] captured them...
...chief counsel at Nuremberg, suggests after careful investigation that the following U.S...
...In his book, Nuremberg and Vietnam...
...Sheehan has also reported that in 1967 a secret study of the pacification program was prepared for military commanders by the most experienced Americans in Vietnam...
...It declares: . . prisoners of war . . . must be humanely treated...
...Although a staunch friend of the military, Chairman Hebert declared: "The committee was ham^ pered by the Department of the Army in every conceivable way...
...Legally, this argument is completely unconvincing...
...it can exist even if only poor judgment is involved...
...In Duffy's defense, four infantry officers said under oath that U.S...
...Because there is ample evidence that the My Lai tragedy differed only in degree from similar atrocities in Vietnam, this critical question must be answered: who in the chain of command should bear the responsibility for war crimes...
...The attack or bombardment, by whatever means, of towns, villages, dwellings or buildings which are undefended is prohibited...
...War Crimes: The Guilt at the Top by ROBERT C. JOHANSEN HPhe conviction of Lieutenant Wil-Ham Calley has belatedly aroused many Americans and should force them to confront the stark possibility that some apparently respectable officials, including Richard Nixon and Lyndon Johnson, are war criminals...
...The thought that the man living in the White House may be a war criminal is a repugnant, unbelievable idea to most Americans who have been conditioned to think that only enemies of the United States commit war crimes...
...In view of the established rules governing warfare, these specific actions by U.S...
...On the contrary, the very highest civilian or military official is guilty if he gives a command that requires a subordinate to violate the rules of warfare, if he condones war crimes by men under his command, or if he does nothing to stop war crimes which he can reasonably be expected to know that men under his command are committing...
...Duffy claimed that in killing the man, he was following orders: "I was asked to bring in a body count, not to bring in prisoners...
...The paramount crime resulting from the inescapable conclusion that officials did know was that U.S...
...the utter failure to provide adequate care for refugees or prisoners in detention camps...
...A New York Times reporter, Neil Sheehan, writes that on the basis of information available to the public it can be concluded that civilian deaths from bombing were deliberate, not haphazard, horrors...
...In any case, the widespread belief that Calley was a scapegoat for the Army should encourage us to search beyond a bewildered and doubtless patriotic platoon leader to locate where the full responsibility for criminal acts rests...
...Instead, a claim of Calley's innocence necessarily shifts the guilt upwards in the chain of command...
...Many of these crimes have been routinely reported in U.S...
...In Quang Ngai Province, where civilian casualties were unusually high, Lieutenant General Robert E. Cush-man was commander, and he in turn reported to General William C. Westmoreland, top U.S...
...for several years he has taught international law on war crimes...
...Third, determination of guilt rests largely upon international laws which are an expression of general moral standards that can conveniently be examined even outside judicial tribunals...
...he personally countermanded a subordinate's order for an immediate and thorough investigation...
...devastation of large areas of the country in order to expose the insurgents...
...Millions of citizens have voiced their protests against attributing guilt to a man who killed old men and women and babies...
...Without doubt the thought has occurred to men like General William C. Westmoreland, former top commander in Vietnam, that guilt should be borne at higher levels of command...
...government, with the widespread support of public opinion, pressed for trials and convictions at the conclusion of World War II when Germans and Japanese were the accused...
...the bombing of hospitals and religious shrines...
...American policy, he said, was to destroy the rural society in order to deny it to the guerrillas...
...These acts have, in fact, become part of established practice in Vietnam...
...The laws of war in no way limit guilt to combat soldiers carrying rifles and directly committing misdeeds...
...The jury requested him to appear as a witness in the Calley case, but the military judge curiously refused to call him on the unconvincing grounds that the general's testimony would not be relevant to the charges against Calley...
...Upon condemning Yamashita to death for war crimes, MacArthur spoke words that if brought to their attention today should cut deeply into the conscience of every officer in Vietnam: "Soldiers of an army invariably reflect the attitude of their general...
...at the same time there has been no equivalent outcry from masses of Americans against the arbitrary deaths of thousands of civilians in Vietnam...
...For Westmoreland, now Army Chief of Staff, recently recommended demotion for two officers, Major General Samuel W. Koster and Brigadier General George Young Jr., who were accused by a military panel of inquiry of covering up My Lai atrocities, and against whom charges were subsequently dropped...
...Army briefings in Saigon, and they have been confirmed by returning veterans, scores of independent reporters, and the Senate subcommittee, headed by Senator Edward M. Kennedy, which was assigned to study civilian casualty and refugee problems in Vietnam...
...Significantly, some of the same officers against whom charges were later dropped declined to answer the subcommittee's questions on grounds that answers might be self-incriminating...
...Although it is a cherished principle of jurisprudence that a man is innocent until proven guilty, this cautionary principle must not prevent a public, informed consideration of our highest leaders' possible guilt in committing war crimes...
...units to burn the houses, kill all the animals, and poison the fields and wells of villages suspected of harboring Vietcong...
...The current official U.S...
...The bare statistics reveal the massive devastation of South Vietnam: nearly one third of the people of South Vietnam—and now even one third of the Cambodians—have been killed or made refugees, most as a result of American firepower...
...Thus, even professed ignorance as to what is occurring does not free a general or the President of guilt if war crimes are perpetrated by men over whom he has responsibility for knowing about their behavior...
...Millions of Americans witnessed the spectacle on the evening television news a few years ago of entire villages being forced, at gunpoint, to evacuate houses already set ablaze by American soldiers...
...An examination of the nature of the laws of warfare suggests some answers...
...The Charter of the Nuremberg Tribunal also leaves little doubt as to where guilt lies: "Leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan...
...Since the atrocities at My Lai did occur—few dispute this—Calley's legal guilt can be mitigated only by using the defense that either he was following higher orders, or, in the absence of an order to kill civilians, he was following generally established military practice in Vietnam...
...in consequence, treaties relating to the law of war have a force equal to that of laws enacted by Congress...
...Second, even the presence of such a tribunal should not foreclose investigation by citizens who must, because of their own obligation to avoid war crimes, learn whether their fellow countrymen and their sons have been and are being expected to commit war crimes...
...Either the demotion was viewed as punishment for wrongdoing in allegedly covering up the My Lai incident, in which case the men should have been brought to trial, or demotion should not have been recommended...
...enthusiasm for body counts overriding the laws of war on the taking of prisoners...
...An American Tragedy, Telford Taylor, former U.S...
...Again, the Army Field Manual unequivocally declares: "Under the Constitution of the United States, treaties constitute part of the "supreme law of the land...
...Perhaps because, as Sheehan concludes, "devastation had become a fundamental element in their strategy to win the war...
...Conditions in refugee camps and "hospitals" for Vietnamese were intolerable in spite of the requirement in the Geneva Convention of 1949 that a belligerent must provide adequate care for refugees...
...The public reaction to Calley's conviction demonstrates the enormously one-sided view—a view not informed by objective legal criteria—which most Americans have of the war...
...b) safeguarding certain fundamental human rights of persons who fall into the hands of the enemy, particularly prisoners of war, the wounded and sick, and civilians . . . the law of war is binding not only upon States as such but upon individuals and, in particular, the members of their armed forces...
...During the trial of Duffy—at first convicted of premeditated murder but eventually sentenced to only six months—he admitted giving the order to kill an unarmed South Vietnamese in his custody...
...why did they acquiesce in them...
...personnel could be considered war crimes: the unrestricted bombing of hamlets and unidentified civilians as a form of collective reprisals for Vietcong sniping from the general area...
...The current U.S...
...actions in Vietnam can be considered war crimes: "forced resettlement of millions of rural families with utterly inadequate provision for their health and human dignity...
...the forcible evacuation of thousands of people from their homes, and the burning of their houses to prevent any possibility of their returning...
...In many provinces, three-fourths of all the village hamlets were destroyed, not in the course of hand-to-hand combat with the enemy, but as a result of the deliberate policy of destroying Vietnamese rural society...
...Why did Westmoreland recommend demotion...
...At last Americans must face the awful fact that it is unrealistic to assume that the highest civilian officials, including the President, were ignorant of the volume and causes of civilian casualties and the other illegal acts occurring regularly in Vietnam...
...This hypocritical double standard is rooted in unthinking patriotism and the belief that Vietnamese are less human than Americans: dozens of "them" can be shot near their own homes on their knees praying for life and in the absence of any trial, but none of "us" can, even after exhaustive evidence and an orderly trial, be considered guilty of killing...
...To raise the body count, they said, they had been instructed to kill anything alive...
...Therefore, abundant evidence is available which could be used to argue that Richard Nixon, Lyndon Johnson, Melvin Laird, Robert McNamara, William Rogers, Dean Rusk, Henry Kissinger, Walt Rostow, Creighton Abrams, and William Westmoreland may all be war criminals...
...One of the accused against whom charges were dropped, Major General Koster, is the former commander of the Americal Division to which Calley was assigned...
...Some war crimes were—and still are —either standing commands (free-strike zones) or established practices (mistreatment of civilians and prisoners of war) long known all the way up the chain of command to the Commander-in-Chief...
...Not only has the Army obstructed outside investigations, but according to Telford Taylor it also has failed, so far as is publicly known, even to carry out its own general investigation of the killings and the level of responsibility for the conditions that made My Lai possible...
...They were on the scene, equipped with instant communication and helicopters, and required by law to know and control what was occurring on the battlefield...
...Army Field Manual, in keeping with the Hague and Geneva conventions ratified by the United States, states: "The conduct of armed hostilities on land is regulated by the law of land warfare . . . , [including] (a) protecting both the combatants and noncom-batants from unnecessary suffering...
...complicity in the torture of prisoners by our wards, the South Vietnamese...
...Was the recommendation an effort to placate critics of the military without in fact exposing the entire military command, including perhaps Westmoreland himself, to the penetrating questions which would inevitably be raised during a trial—questions which possibly would demonstrate more than a slight complicity by top generals and civilians in war crimes...
...Isolated cases of raping may well be exceptional, but widespread and continuing abuse can only be a fixed responsibility of highest field authorities...
...outlawry of every visible human being in the free-fire zones...
...attitude toward prosecuting war criminals marks a substantial departure from the body of judicial practice amassed after World War II in the trials of Japanese and German leaders...
...the act of establishing large free-strike zones in which anything that moves is assumed to be the enemy...
...Certainly some isolated illegal acts, such as rape, are performed without the President's knowledge, but others, such as the establishment of free-strike zones, the killing of civilians and prisoners to inflate body counts, the orders to evacuate and burn villages, the chronic mistreatment of civilians and prisoners of war in U.S...
...One argument used by those attempting to exonerate top level officials of any criminal behavior is that our officials may have been guilty of bad judgment but surely they have not been guilty of war crimes...
...It was against high level officials such as these that the U.S...
...Was not the nurturing by military authorities of this subhuman image of the enemy and the neglect for civilians deliberate, thus extending the responsibility for war crimes far beyond the combat soldier...
...Public officials cannot maintain an adequate defense against their own guilt merely by claiming that all soldiers have been told the rules of warfare...
...It was at the top, not at the level of Lieutenant Calley, that major attention was focused...
...every violation of the law of war is a war crime...
...The Government into whose hands prisoners of war have fallen is charged with their maintenance...
...slaughter of the villagers of Song My even to the infants-in-arms...
...There can be little doubt that responsibility for these crimes extends far above Calley...
...As Calley explained, the Army defined the enemy as "Communism," and, "They didn't give it a race, they didn't give it a sex, they didn't give it an age...
...In addition to atrocities about which high level officers must have known—they were repeated often enough—there has been extensive information available which surely would be impossible for any officer to ignore...
...The nominal reference to these rules in training is overwhelmed by the practice of what Lieutenant James Duffy has called the "mere gook" rule, in which all women, children, pigs, and buffaloes are frequently killed to inflate the body count sent to Washington for an eagerly awaiting Presidential staff...
...The leader is the essence...
...c) to kill or wound_ an enemy who, having laid down his arms, or having no longer means of defense, has surrendered at discretion...
...As the Kennedy subcommittee report documented, the United States spent twenty-eight times as much for destruction from the air alone as it spent to ease the civilian plight between 1965 and 1967...
...In the trial of Duffy—and similarly in the Calley case—psychiatrists testified that the accused had no intent to commit a crime but was instead convinced he was doing his duty and following established practice...
...and he deliberately concealed a later "investigation" from normal military channels...
...The responsibility of highly placed military officers is equally clear...
...In domestic law, if one robs a bank with good intentions for using the money, it does not make the robbery a legal act...
...For, if Calley is relatively less guilty than his conviction seems to imply, someone higher up is guilty, because the crimes did occur...
...Peculiar circumstances justify a determination regarding their guilt— outside a formal judicial proceeding: First, no tribunal is readily available for bringing charges of war crimes against high public officials...
...It clearly reveals the United States concluded, a quarter century ago, that high civilian officials and generals, not simply platoon leaders, must bear responsibility for chronic violation of the rules of warfare...
...But to those citizens who have thoughtfully, unflinchingly judged American policies against the laws of warfare, the idea carries a tragic ring of authenticity...
...b) to kill or wound treacherously individuals belonging to the hostile nation or army...
...In the Calley trial, reported Fred P. Graham of The New York Times, there was testimony that it was "common practice in some U.S...
...Yet Yamashita committed no atrocities himself, nor was there any evidence that he had ordered or condoned them...
...Yet, according to the House Armed Services subcommittee that investigated My Lai, Koster flew over My Lai in a helicopter on the day of the atrocities...
...commander in Vietnam at the time of My Lai;the chain of responsibility then ran through Admiral Ulysses Grant Sharp Jr., the Pacific commander, to the Chiefs of Staff in the Pentagon and to the National Security Council and the Commander-in-Chief...
...Still, the Army hastily dismissed charges against him even before the responsibility of his junior officers had been clarified in their trials...
...Elaboration of the rules of warfare can be found in various other sources, such as the Fourth Hague Convention of 1907, which has for decades been recognized by many nations and, for the United States, has been part of the "supreme law of the land" as a ratified treaty...
...Talking by radio to his command post before the murder, Duffy reported he was asked if the prisoner had "escaped" yet, meaning that "elimination" of the detainee should be recorded as a death resulting from trying to apprehend an escaping prisoner...
...he is a criminal if he performs illegal acts or is derelict in his duty to prevent his subordinates from committing illegal acts, regardless of his intentions...
Vol. 35 • June 1971 • No. 6
