War Crimes Law And The Vietnam War
The American University Law Review
Volume 17, Number 3, June 1968
By Benjamin B. Ferencz
The formulation of rules by which wars should be conducted has occupied belligerents for hundreds of years, yet man remains a primitive in governing what is the most primitive of human occupations. The maintenance or restoration of peace is an even more elusive objective. It is viewed as a singular advance of civilization when, after one or both sides have been devastated, the vanquished are brought to public trial to face the justice or vengeance of the victors. Judicial trials are meaningful not merely for condemning deeds of the past but for setting standards which will govern future conduct. In his opening statement before the International Military Tribunal, Justice Jackson declared:
We must never forget that the record on which we judge these defendants today is the record on which history will judge us tomorrow. To pass these defendants a poison chalice is to put it to our own lips as well.
To be true to our promise, we must be willing to measure the legality of the conflict in Vietnam by the precepts laid down in Nurnberg. Are criminal violations of international law being committed and what are the rights and obligations of the participants? A review of war crimes laws as applied to the facts in Vietnam may be helpful in clarifying some of the issues which have become the subject of increasing public debate.
International law develops slowly and must be seen as an evolving process. In biblical times there were few, if any, restraints on the conduct of war. The Lord’s counsel to King Saul was to completely destroy his enemy, including men, women, animals, and even the suckling children. In Ancient Greece and Rome, victory vested in the conqueror the right to kill or enslave the captives. In later years, the doctrine evolved, no doubt influenced by economic self-interest, that it was illegal to do greater harm than necessary to achieve the war objective and that therefore innocent non-combatants such as women and children should be spared. As the concept of human rights, which inspired both the French and American revolutions, began to find its echo in the rules of war, multilateral conventions set forth in formalistic detail what civilized states declared to be the international common law for the conduct of war.
Following World War I, the Treaty of Versailles required Germany to surrender for trail before an international court, those persons who had been accused of violating the laws of war. In the face of stubborn German refusal to honor the "Diktat von Versailles," the Allied Powers finally agreed to allow the accused to appear before German judges of their own Supreme Court at Leipzig. Of nearly nine hundred on the original Allied list of war criminals, only twelve were brought to trial. About eight hundred cases were dismissed on the grounds that the "misdeeds" were not covered by German law. The few persons who were given mild sentences, for such atrocities as the sinking of hospital ships and unarmed lifeboats, promptly managed to "escape."
It was with this background that the Allied governments faced the problem after World War II of bringing to justice those persons who were accused of committing crimes on a scale never before witnessed in the history of mankind.
The Principles of Nurnberg
During the war crimes trials which followed the Second World War, certain principles of law were applied which found their clearest expression at the international trials which took place in Nurnberg, Germany. Similar trials and proceedings before Military Commissions were conducted in Tokyo, in several of the countries overrun by Germany, and in the various Allied-occupied zones of the former Reich.
Following various declarations going back to 1942, the four occupying powers met in London and drew up an Agreement and Charter. According to its mandate, an International Military Tribunal (IMT), composed of representatives of the four powers, was to be created for the purpose of bringing to trial the captured Nazi leaders such as Goering et al. Three principle categories of offenses were delineated–Crimes Against Peace, War Crimes, and Crimes Against Humanity. It was agreed that those participating in the formulation of execution of a common plan or conspiracy to commit such offenses would be punishable. The accused’s official position as head of a State would be no excuse, and acting pursuant to a governmental or superior order could only be considered in mitigation.
The postulates of the London or IMT Charter were later applied in the so-called "Subsequent Proceedings" at Nurnberg: Twelve additional trails against leading doctors, judges, generals, industrialists and members of the Nazi Elite Guard (SS). These tribunals were bound by Allied Control Council Law No. 10 and certain Military Governmental Ordinances, which expanded and clarified the doctrines set forth in the earlier London Charter.
Control Council Law No. 10 was not merely occupation law or Allied law, as some Germans later maintained. Although it provided for courts whose members were United States or Allied nationals, it was international law applied by an international court. It represented a codification of pre-existing rules which had become part of the common law of civilized nations. The principle of fairness epitomized by the maxim nullen crimen, nulla poena sine lege was not to be violated since no one could be convicted unless it was shown beyond a reasonable doubt that he knew or should have known that his act was criminal.
A. Crimes Against Peace
Crimes Against Peace were defined in the IMT Charter as:
[P]lanning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a Common Plan or Conspiracy for the accomplishment of any of the foregoing.
Control Council Law No. 10 supplemented this to include "initiation of invasions of other countries and wars of aggression in violation of international laws and treaties.
The condemnation of wars of aggression was nothing new and had been specifically outlawed in the Kellogg-Briand Pact of 1928. The determination of exactly what constitutes a "war of aggression" is of course the crux of the matter and continues to bedevil us today when we consider Vietnam. The United Nations has probed the subject for over seventeen years without any agreement being reached. Whatever refinements of definition might be debated by politicians or legal scholars, there was no hesitation by the judges of Nurnberg in agreeing that by any standards those leaders who had systematically and flagrantly planned the invasion and subjugation of neighboring friendly states had committed a Crime Against Peace.
B. War Crimes
War Crimes were defined by the IMT Charter as:
Violations of the laws or customs of war. Such violations shall include but not be limited to murder, ill-treatment or deportation to slave labor or for any other purpose of civilian population or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages or devastation not justified by military necessity.
Control Council Law No. 10 simply clarified that the proscribed deportation had to be "from occupied territory."
The Nurnberg definitions of War Crimes contained no startling innovations. The adoption of the Hague Conventions in 1907 and other treaties had made such offenses part of the international law of many countries.
C. Crimes Against Humanity
Among the more controversial principles established at Nurnberg was the concept of Crimes against Humanity. These were defined as:
Murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population before or during the war, as persecutions on political, racial or religious grounds, in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.
The IMT considered itself to be constricted by the Charter to considering only those Crimes against Humanity which were connected with Crimes against Peace and War Crimes. Law No. 10 removed this limitation by eliminating from the definition the requirement that the acted be committed "before or during the war" and "in execution of or in connection with any crime within the jurisdiction of the Tribunal." The Control Council Law also sharpened the definition by specifying that the prohibited atrocities and offenses also included imprisonment, torture and rape. As interpreted by two of the subsequent Nurnberg courts, there could be a Crime against Humanity even though it was not committed during a war and regardless of the nationality of the victim or the place of the crime.
What distinguished Crimes against humanity from War Crimes or ordinary crimes under common law or national codes was that they constituted not isolated incidents but large and systematic actions, often cloaked with official authority, which by their dimension or brutality placed the international community in danger or shocked the conscience of humanity. The clear Nazi policy for the wholesale extermination of the Jews, for example, was so flagrant an abuse that international intervention was justified despite the fact that the acts were committed on the territory and against the nationals of the offending state.
Like Crimes against Peace, the offense of Crimes against Humanity was declaratory of the evolving conscience of the world. It conformed not to pre-existing statutes but to the movement of ideas which the new statute, reflecting the progress of law and civilization, simply codified.
D. Conspiracy and Membership in Criminal Organizations
The Charter of the IMT provided that "leaders, organizers, instigators and accomplices participating in the formulation or execution of a common plan or conspiracy" could be held responsible. This was however, interpreted by the IMT to refer only to the crimes of aggressive war. Control Council Law No. 10 expanded the rule to include any person who was a "principal," "accessory" or who "took a consenting part," or was ‘connected with plans or enterprises involving", or was a "member of any group or organization connected with the commission of," any of the crimes listed as crimes against Peace, War Crimes or Crimes against Humanity. The Charter as well as Law No. 10 allowed organizations to be declared criminal and its leading members punishable if they had knowledge that the organization was being used for the commission of crimes or if they were personally implicated in the commission of such crimes.
E. Individual Responsibility
Perhaps the most significant, and the most controversial achievement of Nurnberg was the application and clarification of the doctrine of individual responsibility. The Charter declared:
The official position of defenders, whether as heads of state or responsible officials in Government departments, shall not be considered as freeing them from responsibility or mitigating punishment.
Although Hitler, the Head of the German State, evaded trial by committing suicide, the Tribunal found no difficulty in holding personally responsible such high government officers as Goering, Rippentrop and the heads of many departments convicted during the Subsequent Proceedings.
"He who violated the law of war," said the Tribunal, "cannot obtain immunity while acting in pursuance of the authority of the State if the State in authorizing action moves outside its competence under international law."
It has been argued that to hold an individual responsible for a "war of aggression" was an extension of the existing law. No one was charged at Nurnberg with a Crime against Peace unless he occupied a policy-making position. It was felt that the law had developed to a point where leading officials who knowingly committed the most serious of all crimes could no longer find sanctuary in an artificial and outmoded doctrine.
Closely related to the elimination of the defense that the deed was an act of State or done by the Head of State was the clarification that superior orders constituted no absolute defense. Art. 8 of the Charter stated:
The fact that defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment, if the Tribunal determines that justice so requires.
These rules remained essentially unaltered in Control Council Law No. 10.
Because of popular misconceptions, it has frequently been alleged that eliminating superior orders as a defense created ex post facto law. There seems to be a fairly widespread notion that nay officer or soldier who refused to obey an order of his superior officer is liable to capital punishment, or even to be shot on the spot. While it is true, particularly in time of war, that a soldier’s primary duty is obedience and that failure to enforce such a rule would encourage insubordination and would subvert military discipline, nevertheless it has been the law for a long time that the order must relate to a military duty and there is no duty to obey an order which is manifestly illegal. This has long been recognized by American courts as well as courts in England, France and Germany. These well-established principles of law were merely reaffirmed and strengthened at Nurnberg.
Nowhere was it held in any of the Nurnberg trials that a soldier has the duty to determine at his peril the legality or illegality of every order he receives. He was merely forewarned that if it should be obvious to every reasonable person that the order was a violation of national or international law, such as the mass murder of innocent children and unarmed civilians, or the execution of a policy or racial extermination, then the one who gives or carries out such an order may be accused of having committed a crime and he will have to answer for his deeds. Insofar as he acted under the duress of superior orders and not of his own free will, those facts, including the imminence and severity of the duress, would constitute circumstances to be considered in mitigating the punishment.
These, in short, are the principles of war crimes law developed over the centuries in the continuing growth of international law. After Nurnberg there should have been no doubt that those who violate the long established customs of war by the commission of prohibited acts of abuse may be called to account. Those leaders who initiate invasions and wars of aggression may personally be punished. Inhumane acts systematically committed on a large scale, and political, racial or religious persecution may constitute Crimes against Humanity. Any leader who plans or conspires to commit such offenses or knowingly joins or aides an organization dedicated to the perpetration of such crimes, may be condemned a criminal. The fact that an act was done by order of the State or a superior officer will offer no defense if the doer knew or should have known that the act done was in fact unlawful.
In articulating the principles evolved from a developing common law of civilized conduct, the Nurnberg Tribunals made a significant contribution toward a more humane and peaceful world. Yet the fires of war have not been extinguished and man’s inhumanity to man flourished on an international scale. There is obviously a need for new and better tools to enforce a rule of law. The first step is understanding the facts and the precedents, and a close study of the events in Vietnam is an appropriate beginning.
The Charge of Criminal Conduct in Vietnam
Each side in the Vietnam conflict has publicly charged the other with War Crimes and Crimes against Humanity. The United States and its allies have been accused of the wanton destruction of villages, the dropping of napalm bombs, devastation not justified by military necessity, the mistreatment of prisoners and the use of poison gas against old people, women and children.
The Viet Cong, in turn, are accused of murdering and kidnapping South Vietnamese officials and civilians loyal to the Saigon government, of torture and mistreatment of prisoners, the plunder and pillage of property, and the use of flame-throwers against non-combatants.
Crimes against Peace are also charged. The United Sates is accused of being an imperialist aggressor against the national liberation movement of the peoples of Southeast Asia. The totalitarian regime in Hanoi is accused of aggression against the Republic of Vietnam.
A. War Crimes and Crimes Against Humanity in Vietnam
We have seen that the traditional laws and customs of war clearly prohibit such offense as murder, ill-treatment or deportation of civilians, the ill-treatment of prisoners, killing of hostages, plunder, the wanton destruction of cities, town or villages or devastation not justified by military necessity.
In every major conflict there are unavoidable incidents of brutality in clear violation of the laws of war. Such criminal acts should be punished whenever and wherever the perpetrator is apprehended. Not every charge, however, states facts which, even if admitted would set forth a crime.
One of the most widely publicized complaints, for example, has related to the use of napalm bombs by United States forces. The customs of war have been periodically modified to keep pace with the expanding technology of destruction. The bombing of defended cities has, whether it pleases us or not, become a permissible act of warfare. Flame-throwers and incendiary bombs were widely used in World War II and even those responsible for bombarding London with explosive rockets of dubious precision were not tried as war criminals but were hailed instead as valuable scientists when they placed their knowledge at the disposal of the victorious powers. Atomic weapons have been used and even the more destructive thermonuclear devices are no doubt among the treasures of well stocked arsenals. Until these weapons are specifically outlawed in binding international agreements their use, no matter how abhorrent, would not under the present state of the law, be legally prohibited.
Legality is determined not by the technique but by the degree of destruction and the target. The historic principle remains valid that no greater force may be used than is reasonably required to achieve the military objective. Non-combatants and civilian establishments such as hospitals, churches or schools, may not be the objective of deliberate attack. The use of napalm or fragmentation bombs against a military target or the use of chemicals to destroy the foliage which conceals the enemy or even crop which nourishes him, may be devastating and harsh, but it is not a crime. No one was ever tried as a war criminal for such actions.
Should destructive devices be directed against a civilian population, however, or an area which had surrendered, it would of course constitute a war crime and any order to participate in such action should be disobeyed. The United States Rules of Land Warfare, in defining how hostilities may lawfully be conducted, would require no other behavior.
Killing, maiming, imprisonment and other acts productive of great human suffering are the stuff of which all wars are made, yet the so-called Law of Nations has not yet developed to a point where it can validly be said that all hostilities are ipso facto legally punishable as a Crime against Humanity.
If it could be shown that for political or religious reasons any protagonist in Vietnam carried out systematic and wholesale persecutions involving extermination, enslavement, deportation or other inhumane acts, such offenses would justify international intervention to protect the interests of mankind, and any person who knowingly participated in such criminal deeds would properly be punished. It does not appear likely, however, from any of the published reports, that the cruelties committed in Vietnam are sufficiently similar to the Nazi persecutions of Jews, Gypsies and Poles, to justify a finding on the basis of the Nurnberg precedent that Crimes against Humanity have been committed.
The most difficult question to decide is whither the war itself is of such a nature that it may properly be condemned as a Crime against Peace.
B. Crimes Against Peace in Vietnam
The law laid down at Nurnberg set forth that those in positions of high responsibility who planned, prepared, initiated or waged war of aggression or in violation of the international agreements would be guilty of Crimes against Peace. To establish that this particular crime is being committed it must therefore be shown that the events in Vietnam constitute aggression or a breach of international obligations.
1. Is There a War of Aggression in Vietnam?
Following World War I there were attempts made through the League of Nations to outlaw "wars of aggression." These efforts reached their culmination in the widely accepted Kellogg-Briand Pact of 1928. Although war was renounced as an instrument of national policy, many of the signatories, including the United States, carved out an enormous loophole by making it specifically clear that they reserved the right to have recourse to war if, in their unfettered judgment, it was necessary for their self-defense.
When the London Charter of the IMT was being drafted in 1945, the American delegation proposed that an aggressor be explicitly defined in the Charter as that State which would be the first to declare war on another State, invade the territory of another State with its armed forces, or attack by its armed forces the territory, vessels or aircraft of another State. Although no political, military, economic or other considerations would justify aggressions, the proposed definition specifically provided that: "resistance to an act of aggression, or action to assist a State which has been subjected to aggression, shall not constitute a war of aggression."
Justice Jackson called attention to the fact that the United States had entered the war not because Germany had invaded or attacked the United States but because Germany’s resort to war was regarded as an illegal attack on international peace. The United States intervention was legal since we were extending aid to people who had been unjustly and unlawfully attacked. With surely no malice afterthought, the United states, in trying to define aggression at Nurnberg, set forth what was to become the justification for United States involvement in Vietnam nay years later.
The United States has maintained that its action in South Vietnam in not unlawful aggression since it is participating in collective defense against armed attack from the North. Although the Charter of the United nations, like the Kellogg-Briand Pact, prohibits the use of force against the territorial integrity or political independence of any state, it also provides specifically that if an armed attack occurs against a Member of the United Nations the Charter shall not impair the inherent right of individual or collective self-defense until such time as the Security council has taken the necessary measures to maintain peace. The United States had argued convincingly that even though South Vietnam is not an independent sovereign State or a member of the United Nations, it nevertheless enjoys the right of self-defense, and the United States is entitled to participate in its collective defense.
Under the self-defense doctrine, the bombing of North Vietnam for the purpose of repelling or impeding an armed attack which had its roots in that area would be legally justifiable if no more force was used than was necessary. By limiting the application of its power and by restricting its objectives to the defense of South Vietnam the United States would be complying with the existing legal requirements.
The United States had justified its action not merely as a defense measure but one undertaken in fulfillment of an international legal obligation as well as a moral obligation. In the Southeast Asia collective Defense Treaty, the signatory parties (not including Vietnam) agreed that n the event of aggression by armed attack against any designated territory, including the free territory under the jurisdiction of the State of Vietnam, each party would, in accordance with its own constitutional processes, act to meet the comk0on danger. The United States maintains that this was a commitment on the part of the United States to intervene with military force is conspicuously absent. So, too, the various declarations and assurances given by the United States to the government of South Vietnam, which are set forth to further justify American action in Vietnam, merely promised help and support in resisting communist aggression or subversion in order to protect the independence of the republic of Vietnam. No one could reasonably conclude from the terms of those declarations that if the United States refused to send troops it would be a betrayal of an obligation. There is a vast difference between an obligation and an option. An authorization to take military action does not create a legal duty to do so. Per contra, the mere absence of a legal duty does not render an action unlawful, when the option to act is exercised.
It was the law established at Nurnberg that the unprovoked attacks by the Nazi government against peaceful neighbors were so blatantly aggressive by any permissible definition as to constitute Crimes against Peace. The conflict in Vietnam does not fall into such simple classification. International law has not yet developed to a point where it clearly defines what constitutes a Crime against Peace in conflicts which contain an explosive mixture of nationalistic opposition to foreign domination, civil war and social revolution.
The legal right of any lawful government to defend itself against violent overthrow can hardly be questioned. The right of any government to join in the defense of its allies or friends to protect their or its own vital interests is an ancient and well established practice. It is, however, also part of the American heritage that the people, feeling themselves aggrieved by a foreign power or a tyrannical regime, have the legal right and "it is their duty to throw off such government." The United States has the legal right to assist in the defense of the government of South Vietnam. By the same token it does not become a Crime against Peace if the citizen of either north or South Vietnam join forces for the military overthrow of a government they oppose.
2. Are International Obligations Being Violated in Vietnam?
It has been argued that the Vietnam conflict is a war of aggression since international obligations are being violated. In addition to the general peace-keeping provisions of the Kellogg-Briand Pact and the United Nations Charter, one must consider if there are any binding obligations which derived from the Geneva Convention of 1954.
On July 21, 1954, after an agreement on the cessation of hostilities in Vietnam had been concluded between the commanders of the French Union Forces in Indochina and the People’s Army of Vietnam, a "Final Declaration" was issued which intended to restore peace in Indochina. The participants at the Conference were Cambodia, Laos, the Democratic Republic of Vietnam, the State of Vietnam, the People’s Republic of China, the United Kingdom and the United States. The Declaration took note of the agreement ending hostilities and particularly the causes prohibiting the introduction into Vietnam of foreign troops or arms. There was to be no interference in Vietnam’s internal affairs and no foreign military bases were to be established. The People’s Army of North Vietnam was to be regrouped behind a provisional demarcation line. The political system was to be decided in free general elections by secret ballot scheduled for July 1956 under the supervision of an international commission composed of representatives from Canada, India, and Poland.
The United States specifically refused to join in the Geneva Declaration. Although it "took note" of the agreements, it declared that it would view with grave concern any renewal of aggression in violation of the agreements and that the United States would continue to seek unity through free elections supervised by the United Nations.
It is apparent that the United States was convinced at the outset that free elections in the American sense would not be possible. In the United States view, the communist leaders in the North were running a police state where no one dared to vote except as directed. This, coupled with the existence of communist sympathizers in the South, would have given the communists a decisive edge and almost certain victory which, for political and security reasons, neither the South Vietnamese regime nor the United States government was willing to accept. The elections envisaged for 1956 were never held. The communists, feeling victory snatched from the hands, resumed hostilities in an attempt to unify Vietnam under their control. The type of warfare waged included infiltration across the provisional demarcation line, recruitment of sympathizers in the South, intimidation of villagers, guerilla attacks and conventional military assaults. The United States moved to prevent a Viet Cong victory by the injection of increasing doses of military support.
The United States had never agreed to be bound by the Geneva accords. It cannot therefore be accused of having violated that agreement by its political decision to intervene militarily in Vietnam. Even if the United States might be accused of having for its own political purposes provoked a breach of the peace by encouraging the signatory government of South Vietnam to refuse to implement the Geneva agreement it is very doubtful whether under the present definitions or precedents such action might be construed to be criminal.
The pattern of aggression witnessed during World War II is absent in Vietnam. Although each side seeks the establishment of an acceptable political system, neither one has an objective its self-aggrandizement by the calculated and unprovoked assault and conquest of neighboring states. There is widespread disagreement among friends and foes regarding the justification for the action taken by either side. In the absence of the universal abhorrence which stigmatized the Nazi aggression, it is most unlikely that the tribunals at Nurnberg could have denounced either side for committing Crimes against Peace in Vietnam.
3. Is There Need for a Declaration of War in Vietnam?
The question is raised whether the absence of a formal declaration of war has rendered unlawful the military action taken by the United States in Vietnam. There is no doubt a war can exist de facto without any declaration, and indeed this has almost been the rule. It has been established that between the years 1700 and 1872 there were about 120 wars and a formal declaration of war preceded hostilities in about ten cases.
This not to say that such practices are sanctioned by international law. From the time of Grotius, a declaration of war has been considered necessary. The Hague Conference of 1907 prohibited hostilities between the contracting parties without some kind of war declaration. The State Department has taken the position that the absence of a formal declaration of war is not relevant in determining whether the use of force is lawful ads a matter of international law. Legal authorities can be assembled to support both positions.
In view of the common practice of States to engage in wars without formal declarations and the disagreement and confusion which exists among legal scholars, it can hardly be concluded that the mere absence of a formal declaration of war thereby brands every ensuing conflict as a Crime against Peace. The decisive element in determining criminal culpability may really be whether the armed hostilities are conducted with a belligerent intent. If carried on for the purpose of conquest or enslavement the animus belligerendi would render the hostilities unlawful. It would, however, be a great strain to pour the Vietnam situation into such a mould. Civil war is never solemnly declared. It always begins by insurrection against the authority of the government, and the absence of formal declaration does not per se establish criminal liability.
4. Is United States Involvement in Vietnam Unconstitutional?
If it could established that the United States military involvement in Vietnam, even though not a Crime against Peace under international law, nevertheless was a violation of the United States Constitution, a soldier would be justified in refusing to participate since the conflict would be unlawful under the laws of the United States.
The United States Constitution stipulates that the Congress shall have the power to declare war. It cannot be concluded from that provision, however, that the President shall have no authority to wage war without a Congressional declaration. The President is Commander-in-Chief of the Armed Forces. The United States Supreme Court recognized over one hundred years ago that, although the President has no power to initiate or declare war, he is bound to resist invasion by a foreign nation even without a previous declaration of war by Congress. There may be some doubt about the applicability of a foreign invasion precedent to the Vietnam situation, nevertheless, the basic principle of self-defense has been recognized as authorizing independent presidential action. The legality of the President’s action under the laws of the United States is even more apparent from other Congressional action.
The SEATO Treaty, in effect, authorized the President to act to meet the common danger short of a declaration of war. Following the attack against the United States destroyers in the Gulf of Tonkin, a more significant Congressional resolution was passed with only two dissenting votes. It authorized the President "to take all necessary measures to repel any armed attack… and to prevent further aggression." This was a clear and legal grant of unlimited authority to the President to take whatever action he might deem necessary for the defense of South Vietnam.
The Supreme Court has declined to challenge the legality, wisdom or propriety of the Commander-in-Chief in sending Armed Forces abroad, for it is the President who is exclusively responsible for the conduct of foreign affairs.
As far as Vietnam was concerned, the President not only had the constitutional power to do what he did but he also had the prior specific Congressional authorization to do so. There can be little doubt, therefore, that United States involvement in Vietnam is consistent with the law of the land.
Laws do not interpret themselves. The application of the law to the facts always requires a measure of personal judgment, and knowledge of both law and facts is essential before a valid conclusion can be reached by the individual upon whom rests the weight of decision. The burden is only carried easily where there is no room for doubt about either the legality or the illegality of the action under consideration.
Socrates, who was a great dissenter, recognized thousands of years ago that in an orderly society lawful orders must be obeyed:
[W]hether in battle or in a court of law, or in any other place [the citizen] must do what his city and his country order him, or he must change their view of what is just….
The enactment of the Selective Service Act is a valid exercise of Congressional power and its commandments are lawful orders. Draft card burning and the refusal to be inducted into the Armed Forces are therefore clearly unlawful. No one may assume in advance that his mere presence in the Armed Forces will require him to commit a criminal act. Despite the enormity of Nazi crimes, membership in even the German Armed forces was never held to be a punishable offence. There was no decision in Nurnberg which would support a conclusion that the United States Armed Forces, like pirate ships, are criminal organizations. A refusal to enter the Armed Forces cannot be sanctioned by any principles derived from the Nurnberg trials.
Any individual ordered by a military superior to commit a clear violation of the traditional laws or customs of a war or a Crime against Humanity would have a legal right and, indeed, a legal duty, to refuse. If, from all the circumstances, it would reasonably concluded that he knew or should have known that the order required him to commit a criminal act, it is his legal obligation to reject the command of his superior.
Where there is uncertainty regarding the legality of the law or the command that one who disobeys what he merely believes to be unlawful does so at his peril. It may appear, therefore, that the citizen faces a dilemma. If he believes the war to be criminal and refused to be inducted under a Selective Service Law held to be valid, he faces conviction by the civilian courts. If he allows himself to be inducted the citizen becomes exclusively subject to military jurisdiction, even if he challenges the legality of the war on constitutional, treaty or moral grounds. If, after induction, he refuses to serve in Vietnam he may expect to be condemned by a court martial. The conclusion should come as no surprise.
The Commander-in-Chief has unquestioned authority to make foreign policy and to direct all acts which he believes to be necessary for the national defense. In the absence of any binding determination that the war is in fact unlawful, all doubts must be resolved against the one who refuses to participate. A contrary rule which would allow the individual to interpose his personal judgement gains the duty elected authorities of government would not be democracy but anarchy.
It must be borne in mind that the hostilities in Vietnam do not duplicate the patterns of World War II. The facts which justified the finding in Nurnberg that some of the Nazi leaders were guilty of initiating or waging a war of aggression are not visible in Vietnam. The United Nations Charter makes provision for collective defense. No violation by the United States of the Geneva Declaration or any obligation to declare war is apparent. American military involvement is sanctioned by both Congress and Constitution. Under the circumstances, it surely has not been established beyond doubt that the hostilities in Vietnam constitute a Crime against Peace under existing international law. If in fact the war is lawful no one can validly refuse to participate on the grounds that he would thereby be committing a crime.
Even if a debatable argument could be made that United States intervention in Vietnam is an unlawful violation of the United Nations Charter no one not in a position of leading responsibility could properly be condemned on the grounds that he knew or should have known that by aiding in the Vietnam war he was thereby committing an illegal act which he was duty-bound to refuse to do. He need not fear that by participating he will, on the basis of the Nurnberg principles, be adjudged a war criminal. If he refuses to participate he cannot justify his refusal by any obligation prescribed by the existing law.
If there is a disagreement with the political objectives of the war, doubts about its military effectiveness or revulsion against the cruelties and barbarism of armed conflict, each citizen may do what his own conscience dictates. In the United States the right to dissent is inviolate and the power to persuade others by peaceful means remains a sacred freedom. Protest on political or moral grounds should not, however, be misconceived or cloaked as a legal obligation.
He who cherishes and respects the law must measure his individual responsibility by the law as it stands today and not by what he thinks it should be or what some day may be. He will not have to drink the hemlock for corrupting the youth, but he should recognize that Socrates’ rule is still valid:
Anyone who does not like us and the city, may go where he likes, retaining his property. But he who has experience in the manner in which we order justice and administer the State, and still remains, has entered into an implied contract that he will do as we command him.
Even in a free society, if it is to remain orderly, every citizen must be bound by the laws of the sovereign to which he is subject.
As long as there is no binding determination by a legal authority universally recognized patriotic citizens concerned with peace for themselves and their children will continue to challenge the legality of every intentional conflict. The delegation of authority to international bodies has unfortunately been a slow development in relations between States. After World War I the League of Nations inspired the creation of the Permanent Court of International Justice, but because the leading powers guarded their sovereignty jealously, the jurisdiction and power of the court was strictly limited to matters which required the consent of all parties concerned.
Following World War II and the Nurnberg trials, new hope was created that a forum would exist to adjudicate vital disputes affecting the security of all men. One of the more optimistic Nurnberg judges declared: "Where law exists a court will rise… The Court of Humanity will never adjourn." But the Nurnberg courts did adjourn, sine die, and have never been reconvened or replaced. In 1950 the Council of Europe established a European Court of Human Rights but its jurisdiction was so circumscribed that it lacked all ability to influence major conflicts between nations. The United Nations Draft Statute for an International Criminal Court was revised in 1953 but it remains a draft resting on a shelf while the major powers intermittently wrangle about the definition of aggression. The price for the absence of an accepted international penal court will continue to be paid in human blood.
What an inspiring example it would be if the United States which was the forerunner in establishing the Nurnberg Tribunals would again take up the torch and help to create a new international forum where impartial men of integrity, wisdom and learning in the law could openly consider the evidence and the precedents in determining authoritatively whether the action in Vietnam is consistent with the laws of civilization. It would be not merely a contribution toward a more peaceful world but a reassuring demonstration of confidence in our course and a sign of continuing respect for the rule of law in international affairs.