War Crimes: Who's Sorry Now?

A week after the new Revolutionary Government in Chi Minh City began the arduous task of rebuilding and reunifying a nation ravaged by decades of anti-colonial and civil wars. President Ford held a press conference, where UPI reporter Helen Thomas asked him to discuss the lessons of Vietnam. Ford seemed miffed by the question. "It was sad and tragic in many respects," he responded, with no apparent sense of understatement. "I think it would be unfortunate for us to rehash allegations as to individuals that might be to blame, or administrations that might be at fault."

Unsatisfied with the president's evasion. Thomas asked Ford if he thought that we couldn't learn from the past. "Miss Thomas, I think the lessons of the past in Vietnam have already been learned," Ford said, becoming openly hostile to the line of questioning. "We should have our focus on the future, and as far as I'm concerned that's where we will concentrate."

Vance Hartke, a U.S. Senator from Indiana who describes himself as one of the first members of Congress to break with the government's Indochina policy, was less reluctant to discuss the lessons of Vietnam. Speaking on the Senate floor the same week that Ford fended off Helen Thomas's requests for conscious reflection on a war that spanned the administrations of six American presidents, Hartks said he had once felt outrage at the men who committed the United States to a war policy he said was "without political, military or moral justification." But these feelings of outrage, be said, have subsided.

"Now in the sadness that every American must feel in the face of the pitiful plight of the Vietnamese people," Hartke told his colleagues, "it is clear that Indochina was a drama without villains." However bad, however destructive, however unjustified American Indochina policy may have been, Hartke said, the men who made that policy should not be judged too severely in the aftermath. The war makers, he explained, were "desperate men caught up in a process that had a momentum of its own and which they neither understood nor could control."

Mainstream American politicians like Gerald Ford and Vance Hartke are looking for a graceful way to close the books on U.S. involvement in Indochina. The hawks of the war era, men like Ford who wanted to beat back the advance of communism in Southeast Asia, are humiliated by America's defeat and resentful toward those who forced restraint upon the war effort. In a different political climate the hawks might be clamoring for recriminations against those who caused the United States to "lose Vietnam," but for now they are satisfied to forgive if everyone else will forget. And the liberals are willing to play along. Men like Hartke still get up to say that they were right all along about Vietnam, that we didn't belong there and that we couldn't win, but there will be no finger-pointing from either side. That way nobody gets hurt, at least not until the next time around.

As the years go by, the truce between the two groups of public officials we used to call hawks and doves will probably prove to be infinitely more durable than the "peace with honor" that Richard Nixon achieved in Paris shortly after the 1972 Christmas bombings of Hanoi. A conspiracy of silence will rob the United States of its Vietnam heritage: the moral, legal and political questions that American involvement raised but never quite settled.

Most American public officials have never exhibited much willingness to discuss the subject of war crimes in Vietnam, either while the war was going on or now that it is over. But the war crimes issue was once a much-discussed one outside of the government establishment. During the spring and winter of 1967, for instance, the Bertrand Russell Foundation sponsored the first International War Crimes Tribunal, which gathered evidence of malfeasance in the American conduct of the Indochina war. Russell and Jean-Paul Sartre invited the American government to send representatives to state its case to the tribunal, but the Johnson administration chose not to respond to the invitation. Pressed by reporters to explain the administration's disregard for Russell's efforts, secretary of state Dean Rusk replied that he had no intention of "playing games with a 94-year-old Briton." By the end of the tribunal's first two sessions, the United States had been indicted in absentia for crimes against peace, crimes of war, and crimes against humanity.

In early 1971, the Vietnam Veterans Against the War began its Winter Soldier Investigations, an inquiry into American war crimes in Indochina. A VVAW panel took testimony from nearly 100 veterans of the U.S. war effort, and compiled an impressive record of military disregard for life and the rules of war.

Even the U.S. Congress took up the war crimes question, albeit in an unofficial way. After the My Lai revelations, ten liberal members of the House of Representatives jointly sponsored the Congressional Conference on War and National Responsibility, where a number of experts on a specially invited panel expounded on matters like the relevance of the Nurenberg war crimes trials to American conduct in Vietnam, the use of experimental weapons like herbicides in jungle warfare, and the dilemmas of individuals who opposed the war.

The congressmen themselves were largely noncommital on these questions, but one, Henry S. Reuss (D-Wisc.), called for "the application of existing facets of the law of war to some of the hellishness that has been brought to our attention in Vietnam"--in effect, a call for some sort of war crimes proceedings. Since the war has ended, Reuss has remained silent on the subject of war crimes, and he will probably follow the lead of his colleagues on Capitol Hill in letting the matter rest.

Perhaps the most influential discussion of the war crimes issue was undertaken by legal scholars who specialized in international law and the law of war. Richard A. Falk, Milbank Professor of International Law and the law of war. Richard A. Falk, Milbank Professor of International Law and Practice at Princeton University, began to argue that the U.S. war effort in Vietnam was illegal soon after American troops entered combat in Indochina in large numbers. As the war dragged on through the sixties. Falk became increasingly active in the antiwar movement, and came to argue that the standards of justice applied against Nazis at Nurenberg made high U.S. officials liable for a variety of crimes against peace and humanity. But he resisted the idea that government leaders should actually come to trial. Only in 1969 did Falk become seriously troubled by the apparent contradiction in his position. "To conclude as I had that the United States was waging a war of aggression against North Vietnam and was guilty of the systematic commission of war crimes on a massive scale in South Vietnam, and yet to shrink back from the conclusion that where there are crimes there are also criminals," he wrote in 1971, "seemed to involve a very dubious kind of intellectual casuistry."

Telford Taylor, a professor of International Law at Columbia and a one-time chief prosecutor at Nurenberg, came to share Falk's conclusion that the U.S. was committing crimes of war in Vietnam, though he had started from an entirely different perspective. Taylor had begun as a proponent of the U.S. war effort against North Vietnam, which page 4/Dump Truck in part accounts for the impact of his book Nurenberg and Vietnam. Published in 1971, this book used a conservative and restricted interpretation of international law, and in it Taylor came to the painful conclusion that his government was in fact guilty of contravening the standards of law that govern warfare. He did not deal directly with the question of whether and how the responsible American officials should be brought to trial, explaining in the spring of 1971 that this political aspect of his problem went beyond the bounds of his legal expertise.

The shooting has stopped in Vietnam, but My Lai, free-fire zones, napalming citizen populations, massive bombing of non-military targets, torture, herbicidal warfare and "forced-draft urbanization"--in sum, the tactics used by the American war machine in Indochina--all raise moral and legal questions that did not go away with the victory of the Provisional Revolutionary Government. The war crimes issue lingers, despite the silence of liberal and conservative politicians, and the American future that Ford says he will now concentrate on cannot be so easily separate from the sins of so recent a past.

For his part, Falk said last week that the need for a war crimes proceeding "is present, perhaps greater than when the war was going on, since the American involvement in the war is so easily repressed." He says that "if one takes the principle of individual responsibility seriously, then there should be some sort of war crimes trial"--but, with the same ambivalence he felt in 1969, he quickly adds, "It's quixotic to suggest that trials actually take place in this climate."

Noting that "people in this country who committed war crimes continue to enjoy respect," Falk says that the mainstream of "the American people are unprepared for allegations of criminality. "War crimes trials would be disruptive," he says, "since so many people are trying so hard to forget." He admits, though, "Maybe I've too easily estimated the mood of the nation on the war issue."

Ralph Schoenman, who served as secretary-general of the Russell War Crimes Tribunal and who now lives in Princeton, N.J., says that Falk's view of popular sentiment on the war issue is "reactionary." "Nobody but the ruling class is willing to forget Indochina." Schoenman said last week. The Russell Tribunal, he says, was "an attempt to show that American imperialism needed experimental weapons to survive the war in Vietnam," adding that the best evidence of popular support for the Russell proceedings was the large number of military personnel who showed up to testify before the tribunal.

But Schoenman too concludes that it is unfeasible to propose that formal war crimes proceedings be instituted against American policy makers. "The policy makers are accountable," he says, "but they still control the state machinery that is needed to bring them to account." He suggests that one day a new revolutionary government might seek to bring American war criminals to justice, but in the meantime he emphasizes the continuing work of the non-governmental tribunals established by the Russell Foundation. "The idea of the popular tribunal is not dead," he says. "It's a continuing vehicle used to show what's going on in Chile and with the Kennedy assassinations. It's a tactic for dramatizing evidence of official crimes."

Two Cambridge-based academics who participated in the antiwar movement in the '60s and '70s agree that the United States engaged in criminal activities in Indochina and that the war crimes issue remains a significant one, but differ drastically on the lessons to be drawn from American involvement in Indochina. Noam Chomsky, linguistics professor at MIT, says that if there were war crimes trials, they should focus primarily on the question of U.S. aggression against Vietnam and Cambodia. It would be naive to concentrate on the brutality of the U.S. war effort, Chomsky said in an interview last week, since its atrocities occurred simply because the1