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46
WAR CRIMES
CLE OF RESP
THE
L~
RICHARD A. FALK
Mr. F d k , a member of the poktical science faculty at Princeton Unaversity, is spending the current academic year at the
Center for Advanced Study i n the Be!zavioral Sciences at
Stanford University. He 2s the author of Legal Order in a
Violent World [Princeton Univematy Press).
If certain acts in violation of treatles are crimes, they
are crimes whether the United States does them or
whetherGermany does them, and we are not prepared
to lay down a rule of criminal, conduct against others
which we would not be wiIlmg to have invoked against us.
-Mr. Justice Robed Jackson,
NATIONIJUWX~
26, .Z%O
with the ten-year-old children. It may not be humanitarian, but thats what its like.? (-The New York
Times, December 1, 1969.) The massacre itself raise::
a seriousbasis for inquiry into thernihtaryand
civilian command structurethat was 111 charge of
battlefield behavior at the time.
However, evidence now available suggests that the
armed forces have tried throughout the Vietnamese
War to suppress, rather than to investlgate and punish, the comrnissron of war crimes by American personnel. The evrdence also suggests a failure to protest or prevent the rnanlfest and systematic con7mission of war crimes by the armed forces of the Saigon
regime.
Thus a proper inquirymustbe
conducted on a
scope much broader than any single day of slaughter. The offzczal policzes developed for the pursuit of
belligerent objectives in Vietnam appear to violate
the same basic and minimum constraints on the conduct of war as were violated at Song My. The B-52
pattern raids against undefended villages and populatedareas,free
bomb zones, forcibleremoval
of civillan population, defoliatmn and crop destruction, and search and destroy missions have been
sanctioned by the United States Government. Each
of these tactical policies appears to violate international laws of war that are binding upon the United
States by international treaties ratified by the government, with the advice and consent of the Senate.
The overall American conduct of the war involves a
refusal to differentiate between combatants and nom
combatants and between milltaryandnonmilitary
targets. Detailed presentatlon of such acts of war in
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77
78
In fact,the effectiveness of the law of war depends, above all else, on holding those in command
and in policy-making positions responsible for rankand-file behavior on the field of battle. The reports
of neuropsychiatrlsts,trained
in combattherapy,
have suggested that unrestramed troop behavior 1s
almost always tacitly authorized by commanding officers-at least to theextent of conveying theimpression that outrageous acts will notbe punished.
It would thus be a deception to punish the trigger
men at Song My without also looking higher on the
chain of command for the real source of responsibility.
The Field Manual of the Department of the Army,
F M 27-10, adequately develops the principles of responsibility governing members of the armed forces.
It makes clear that the law of war is binding not
onlyupon States as such but also upon individuals
and, in particular, the members of theirqrmed
forces The entire manual is based upon the acceplance by the United States
of the obligalion toconduct warfare in accordance with theinternational
law of war. The substantive content of international
law is contained in a series of international treaties
that have been ratified by the United States, including principally the fiveHague Conventions of 1907
andthefour
Geneva Conventions of 1949.
These internationaltreaties are part of the su-
I havealready suggested
that many officlal battlefield
the Uniied States in Vieham
These official policies should
THE N A T I O N / ~ a26=
~ 1970
~ ~ ~
ao
The United States Government was directly associated with the development of a broad conception
of criminal responsibility for the leadership of a
state during war. A leadermusttakeaffirmative
acts to prevent war crimes or
dissociate himself from
the government. If he fails to do one or the other,
then by the very actof remaining in a government of
a state guilty of warcrimes,he
becomes a war
criminal.
Tokyo
Finally, as both theNurembergandthe
judgments emphasize, a government official is a war
criminal if he has participated in the initiation or
execution of an illegal war of aggression. There are
considerable grounds for regarding the United States
involvement in the Vietnamese War-wholly apart
from the conduct of the war-as involving violations
of the UN Charterand other treaty obligations of
the United States. (See analysis of the legality of
U.S. participation in Vietnam and International Law,
sponsored b y the Lawyers Committee on American
Policy Towards Vietnam; see also R. A. Falk, editor,
The Vietnam War and International Law, Vols. 1
and 2.) If U.S. participation in the war is found illegal, then the policy makers responsible for the war
THZ N A T I O N / ~ U T l w l l . 26,
~ 1970
b.
their governments to account for indulgmg or ignaring the dally evidences of barbarism. We are destroying ourselves by destroying the environment
that perrnlts life to flourish, and we are destroying
our polity by destroying the values of decency that
might allow men eventually to live together in dignlty. The obsolete pretensions of sovereign prerogative and military necessity had better be challenged
so011 if life on earth 1s to survive,
POLITICS OF THE
6NMENT
GENE MARINE
MT.Marine,editor and journalist specializing in Phe West
Coast scene, is the author of America the Raped (Simon &
Schuster).
A graduate studentin
,82
TYE NATION/JanwtrlJ
26. 1970