Prosecuting the "fog of war?"(1) examining the legal implications of an alleged massacre of South Korean civilians by U.S. forces during the opening days of the Korean War in the village of No Gun Ri.

• Author: Booth, Christopher D.

ABSTRACT

In the Fall of 1999, the Associated Press reported a story of an alleged massacre of Korean civilians, conducted by U.S. troops at the beginning of the Korean War in the hamlet of No Gun Ri. The story had an incendiary effect, both in the United States and abroad. The story of an incident from half-a-century ago caused many to reexamine the conduct of American forces in that war, the current security arrangements in East Asia, the U.S.-R.O.K. relationship, and the wisdom and ability of modern Americans to investigate, evaluate, and judge historical events from our current historical and cultural perspective.

International law has developed a detailed body of law dealing with war crimes through the Nuremberg Charter and the Geneva Conventions. Prosecution of war criminals by International Tribunals has been nearly non-existent since the end of the Second World War. International law appears to eliminate the defense of "superior orders," but U.S. military law is not so clear. It seems highly doubtful that the United States would allow an international body to determine the fates of any accused in this incident.

This note seeks to investigate the tangle of U.S. military law, International law, and political calculations that must be considered in developing a solution to the No Gun Ri Massacre. It also reviews the evidence and the on-going investigations as they currently stand. Finally, it offers suggestions for what the government should do if and when it determines that the situation has moved from mere allegations to verifiable facts.

1. INTRODUCTION

   Reprehensible conduct by military forces that could be considered criminal and thereby a war crime(2) was an all too common event during the past century, and seems to continue with frequency into this new one. For example, in Chechnya earlier this year, Russian forces apparently undertook a ruse that blatantly violated the Hague Convention,(3) promising Chechen fighters safe passage out of Grozny, but instead directing them into a minefield (apparently killing hundreds) and opening fire on the survivors.(4)

   "It would be idle to deny that many incidents of gross and `grave breaches"' of the international law governing conduct in civil and international armed conflicts have occurred since the adoption of the Geneva Convention in 1950.(5) Indeed, outside the ad hoc war crime tribunals for the former Yugoslavia and Rwanda, there have been no international attempts to prosecute war criminals.(6) The prosecution of those accused of war crimes have been treated, if at all, by national courts as violations of state law.(7) Given the admittedly spotty enforcement of international law or even national law in prosecuting suspected war criminals over the last half century, why has there been such international interest in an incident that if it occurred, took place half a century ago during the opening days of the Korean War?

   This paper will attempt to address this question, as well as several others. In Part II, the historical record and the events at No Gun Ri will be scrutinized. Part III will examine the jurisdiction of the military justice system. Part IV will determine whether any crimes were committed at No Gun Ri under U.S. law, and if so, which laws apply. In addition, Part IV will consider the international agreements the United States is party to, and which of these, if any, apply to this incident. Part V will discuss the so-called "Superior Orders" defense, a claim that can be anticipated to be raised in any war crimes trial. Part VI will evaluate the options available to the United States if the Army inspection team currently investigating determines that war crimes occurred. Finally, Part VII will offer this author's conclusions as to what course the U.S. government should pursue, as well as the likely outcome of this controversy.

2. WHAT HAPPENED AT NO GUN RI?

   Before examining the specific legal issues that a newly discovered war crime would present at this time, several questions must be addressed. First, why is there any interest in events that if they occurred, did so some fifty years ago? Upon establishing why such interest exists, we must next examine the events that preceded the apparent massacre. No war crime is committed spontaneously, and any investigation must subjectively evaluate the time, place, manner, and events that led to the breach of national and international law. Having established the context for the incident, the specific details of the episode can be appraised. Finally, this particular event has generated dual investigations by the United States and South Korean governments. The history of previous inquiries and the current explorations will be examined in the conclusion of this section.

   1. Why Does this Matter, and Why is there Concern Half a Century After these Alleged Events Occurred?

      Perhaps the primary reason that both the U.S. military and government are interested in determining whether the alleged events occurred, and whether U.S. forces were involved, is that if this massacre took place, it was perpetrated by Americans.(8) This country appears to take its burden of moral leadership as the "world's sole remaining superpower" and most successful democracy seriously, and consequently holds its military (both its leaders and soldiers) to a higher standard of conduct than may be expected of the Russians or others. Additionally, there is the concern that the appearance of a cover-up by the U.S. government could harm our relations with South Korea, or other important allies.(9) The allegations of this war crime have been widely reported by the press of nations friendly to the United States,(10) and have been used for propaganda purposes by the North Koreans(11) and others opposed(12) to the presence of the United States in the region.

      The motivation for the U.S. military in getting to the bottom of the events at No Gun Ri likely stems from another incident that occurred eighteen years after these alleged events. The incident, known simply as My Lai, stands as a totem for a mass of horror, recriminations, and distrust between the political leadership, the military, and the public at large.(13) On March 16, 1968, U.S. soldiers engaged in wanton criminal conduct on an appalling scale in which company-sized forces operating in a series of hamlets in the village of Son My killed up to 504 Vietnamese civilians.(14) This shameful incident is viewed as having "stained the honor of the U.S. Army" and has affected senior leadership decisions,(15) the Army's training,(16) its policies such as the Rules of Engagement,(17) and its culture.(18) This incident has particularly sensitized the military(19) to suggestions of wrongdoing,(20) and it likely helps further explain the interest in fully investigating the No Gun Ri incident, and may even indicate the military investigators' willingness to recommend prosecutions.(21)

   2. The Situation Faced by the American Army in Korea During the Initial Weeks of Fighting Was One of Chaos, Lack of Proper Equipment, and Near Panic

      At 4 a.m., on June 25, 1950, forces of the North Korean People's Army (NKPA) crossed the 38th Parallel and began their invasion of the Republic of (South) Korea.(22) By June 30th, President Truman and his advisors concluded that the United States would intervene with "any and all" ground forces required to prevent a communist victory on the Korean peninsula.(23) The Eighth Army, consisting of four U.S. Army divisions conducting garrison duty on the Japanese home islands, constituted the available U.S. ground forces in the region.(24) Conservative estimates put the Eighth Army at only "40 percent combat effective" strength.(25) "The United States, following demobilization from World War II, was in poor shape to go to war, especially in Asia. What postwar planning there had been was for a global, European, nuclear war; to many the development of [nuclear weapons] had [rendered conventional forces] obsolete."(26)

      U.S. forces in Japan spent little time on training, and officers were constantly faced with maintaining discipline due to the lax attitude of many of the draftees that made up the occupying army.(27) The American soldiers were in a "state of psychic disarmament" and were thus riot properly prepared for combat.(28) The weapons and equipment they were issued were in many cases inoperable, incompatible with other systems, or in other ways non-functional.(29) For example, the 2.36 inch bazooka used by U.S. troops was described by soldiers as a "piece of failed [World War II] trash" that "gravediggers ... often found ground up in the bodies of GIs because, it could not stop tanks."(30)

      The first U.S. forces to see combat were a hastily assembled unit of 400 infantrymen named Task Force Smith.(31) This unit had high morale, and bravely engaged a North Korean armored force in the first U.S. action of the war on July 5th.(32) Task Force Smith suffered from all the problems endemic to U.S. forces as a whole. For example, every 2.36-inch bazooka they fired at the North Korean tanks was either a dud, or bounced ineffectively off of the communist armor.(33) Ultimately, this heroic road-block attempt (facing odds of 20:1)(34) was futile, with the Task Force suffering over 185 men killed, captured, wounded, or missing, while the North Koreans were at the most inconvenienced rather than deterred in their advance.(35) The defeat of Task Force Smith and the attendant rumors "ate like a cancer into the combat morale" of U.S. forces landing in Korea that July, with many soldiers worrying about the effectiveness of their equipment, tactics(36) and chance of success against the NKPA.(37) The reprehensible situation that these initial forces faced left such a lasting impression on the military(38) that Army leaders of the 1990's preached the mantra of "no more Task Force Smiths."(39)

      The first weeks of the Korean War were disastrous for the American forces. The end of the first...