My Lai and Vietnam: Norms, Myths and Leader Responsibility

• Author: By Captain Jordan J. Paust
• Pages: 04

Farmer Ywremberg prosecutor Telford Taylor has stirred discussion of the law of war with his suggestions that high Ameriem officials may hnwe been gziilty of war crimes in Vietnam. In rebuttal, the author examines the current state of the law regarding such issues as leader responsibility, population relocation, guerrilla status, and aerial bombardment. In large m e w r e he finds that American netion hns not breached esisting legal standards. However, he does encourage a rethink-ing of existing standards and emphnsizes the need for more intensive training of combatants in the laws of war.

I. ISTRODUCTIOS

"Freud views the atrocities of war as more natural than the civilized behaviour of man,'' and "what we call 'peace' is, ap-parently, a period during which forces both psychic and material are dammed up." 2

What a pessimistic outlook at first blush, but if this is true I t is perhaps not the ultimate fate of mankind to continue to wage war in disregard of certain international rules which have been developed to control violence and competitive destruction and to limit the sufferings of the victims of war. It is more iike-ly, the author believes, that mankind can and will have to constantly guard against the excesses of individuals, groups, or governments in their treatment of fellow human beings.* As the new Army film, "The Geneva Conventions and the Soldier,"

* The opinions and coneluiion~ presented herein are thoee of the author and do not necessani) repreaent the m e w of The Judge Advoeare General's School or any other governmental agene).

'*JAGC, U.S. Army; Faculty Internatma1 and Comparatlre Law TJAGSA. A.W.,

1966, J.D.. 1968, Uniwrsity of Cahfornia at Lar Angelea,

LL.B., 1972, Umveraits of Virgma; J.S.D. Candldate. Yale En~uersity. 'Colby, Wor Crimes 23 llica L. REI 482 626 n.218 (1925) qwting m c c m y , TEE PJYCHOLOCI OF wm. see aiao, ia fheri a Btt oj caiiey InCa?, LOOK, Jun. 1. 1971. at 76-77

'Far B sweested ~ocial response in the farm of a new Comm~snian on Human Rights in Armed Conflict see Psuat An Intamtionai Struetiire for Inplommlafton of the 1949 Gbwm Co&ttmm Needs and Function Anelysia, publicaim fortheamlng.

points out,' "War sometimes brings out the best in man-charity, compassion, self-sacrifice. Too often it brings out the worst-cruelty, brutality, sadism," and in wnr It is usually harder "to do the right thing than the wrong thing." Severtheless, as the film emphasizes, the human society rightfully expect8 that a soldier's and a civilian's conduct during armed conflict shall canfarm to certain basic normative precepts knoivn a3 the international law of war.

It shall be the purpose here to identify Some of these basic precepts and to relate them to questions of leader responsibility for violations of the law of war in Vietnam. The relevant cornments of Telford Taylor in his recent book, X'vremberg and Vietnam: An .A?hericon Tragedy, will be utilized throughout as points of focus, but, unlike the bonk, this article w l l not attempt to prove that criminal responsibility exists for past conduct of certain officers or leaders. For such ~onclusion~ the

reader will have to attach hi8 own factual data to the law as ironed out in this inquiq-fm it is the Ian TT-hich this article seeks in Identify not proof of cnmmality Similarly it shall not be the purpose of this article to prove that war crimes were not committed in Vietnam by United States farces. South or North Vietnamese forces, or those of the Yiet Gong or others. That would be an imposrible task and wnuld render the article as useless as the wldiy conclusionary writings which state that war crimes oecured each day and in all aleas of Vietnam or that we are all legally guilty of those crimes which have been committed. Instead the task is formidable enough for we will attempt to identify all of the prominent myths that have found a certain acceptance among some of the members of the public and also among certain wiiters who should be more attuned to the differences between law and myth or politicized C O ~ C ~ U

mrtha must be explored, not to exculpate brutality. lam and criminality in propa perspective.

Some of us may find it difficult to 18811ze that mmoraiity and mhumanity ale not elways refiected as illegality; bLit It 1s crucial to perceive law as objectively as poaslble if we are to advance beyond ail od hoc emotive response and finallp engage ~n a constructive crime pierentian or rights protection program Those

WAR CRIMES

of us who are quick to judge sometimes ignore the fact that men are both good and bad whether they are of our nationality or that of the enemy. Similarly, we sometimes fail to realize that both a legally justifiable war and legally justifiable conduct during war (or during peace) can cause suffering, destruction and death which men of concern find reprehensible and friphtening. The real e.il is war itself, but we must retain a tight focus on fact and the actual state of the law if we are to end these

KWS and achieve the maximum humanitarian aims in cases where armed violence occurs. Anything less would leave all of usunprotected in the future.

These are difficult realizations to make, but ones which are necessary if we are to utilize our greed, fear, prejudice, frustration and hostility to advantage by an open confrontation and by guarding each other against our own excesses. We cannot use God, fate, technology, the leniency of courts, or imaginary Hitlerian leaders as scapegoats if we are to move beyond rationalized apathy and attempt to realize the social achievements of a preventive law or rights protection program. Sor can we draft new treaties and rely on the law to protect us from our-selves. We have the ultimate responsibility and mankind must seek constructive social respon~e~since men will apply or break the law and human beings must ultimately receive the proper education, training and guidance to attenuate the evils of violence and make human rights more effective.

We cannot engage in a confusion of law and morality where humanity needs more than a moral or legal judgment to start that social achievement; and a tedious reexamination of law, human rights and political interplay is necessary if we are to move beyond rule formulation and judgment to actual implementation and protection. Moral concern 1s important in this regard, but obfuscation of law through moral suasion can cause us to lose the opportunity for a cooperative breakthrough in law effectiveness. There is another danger inherent in an apocalyptic mixing of morals and law, for if we tie legality to individualistic and temporal morality we are close to losing whatever law or re-straint we have, and we will fail to tighten the law where it isdeficient as a proper guide to social conduct.

The need to differentiate between law and morality or even myth is why this article will begin with an inquiry into the nature of international law and its relation to politics and the contemporary terminology of "community expectation." From

this background the inquiry proceeds through some of the basic myths which permeate the literature on My Lai and the conduct of the Tietnamese war The reader may not always find security in the state of the law, but security is not my purpose Indeed. If anything 1s clear from this focus it is that there is a tragic lack of awareness of the nature of human rights in times of armed conflict and the general rules of warfare in this country and in other nations around the world.

I1 THE BASIS OF HUMAS RIGHTS AND INTERSATIOSAL LAW

At the outset x e must not forget that as lawyers we must guard against normatire formulations which have no relation to reality or expectations. Hall early warned:

\iae of an international larvyei to indulge hich he is often credited. thar formulas ale

Of courze, this warning does not preclude the use of a formula which itself is based on the identifiable community "passions" for law and justice; nor does it require a disillusionment with the law and the attribution of an exaggerated role to naked

The problem for the international lawyer, however, lie8 in the identfmtion of shared legal expectations and, then, in the inquiry as to the responsiveness of a pamcular formula to those expectations.

While law must refiect the public expectations, this does not mean that legal decisions are to he purely political in nature. In fact, a political decision has none of the permanence. authoritativeness or acceptance one associates with law and should not be confwed with it. Politics is oriented toward the present and the principles of ruling, government and control or a reguIBtion of conduct which sometimes fails to reflect an authoritative or constitutive base (law being social regulation but haiine an authoritative or constitutive base). Politics is majoritarian in focus (ideally) rather than being responsive to all of the interests common to all of the members of society (i.e.. including the common interests of the minorities or "out" groups) In contrast, community expectations might be eonsidered as tho common to nearly all of the members of the human cornmunit

'HALL. IITERLATIONAL LAW, preface t3d ed. 18501. "See 11. MICDOLCAL, F. FILICIA~O,

LAW AND M~NIMLX

WORLD PI~LIC

ORDER. 3-4 (1561). on the role of "authority" [heremafter cited as XlcDoro~~]

WAR CRIMES

and our focus here should concern those which also contain an authoritative base in the shared expectation of legality or a common expectancy of the existence of rights and duties as apposed to pure aspirations as to what the law should be.i

The reader should note that Telford Taylor would seem to allow an intellectual eonfiision to come intn existence in the identification of law or legal norms. He would apparently substitute common opinion or political passions for legal, authoritative norms.8 Furthermore, there is room for further confusion in his message, since individual opinions and passion8 are given great importance even when in...