Issues of the war that have provoked public controversy and legal debate over the last two years-the Cambodian invasion of May-June 1970, the disclosure in November 1969 of the My Lai massacre, and the question of war crimes-are the focus of Volume 3. As in the previous volumes, the Civil War Panel of the American Society of International Law has endeavored to select the most significant legal writing on the subject and to provide, to the extent possible, a balanced presentation of opposing points of view. Parts I and II deal directly with the Cambodian, My Lai, and war crimes debates. Related questions are treated in the rest of the volume: constitutional debate on the war; the distribution of functions among coordinate branches of the government; the legal status of the insurgent regime in the struggle for control of South Vietnam; prospects for settlement without a clear-cut victory; and Vietnam's role in general world order. The articles reflect the views of some forty contributors: among them, Jean Lacouture, Henry Kissinger, John Norton Moore, Quincy Wright, William H. Rhenquist, and Richard A. Falk.
Originally published in 1972.
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The Vietnam War and International Law
The Widening Context Volume 3
By Richard A. Falk
PRINCETON UNIVERSITY PRESSCopyright © 1972 Princeton University Press
All rights reserved.
From the Vietnam War to an Indochina War
DURING the last week of April 1970 the Vietnam war became the Second Indochina War. On April 24 and 25 representatives of the four movements of the Indochinese Left convened at a certain spot in south China to seal an alliance that had been contracted many years before by three of the movements — the North Vietnamese Lao Dong, the Pathet Lao and the South Vietnamese National Liberation Front (NLF) — and to which Prince Sihanouk, overthrown a month earlier by the Cambodian Right, was now adhering in a conspicuously unconditional manner. The Indochinese revolutionary front thus came into being.
Five days later, President Nixon announced the entry into Cambodia of sizable American contingents backed up by South Vietnamese units. This operation, dubbed "Total Victory," was presented in Saigon as an attempt to wind up the war and be done with it. In this manner a strategy was defined which confuses the idea of victory with that of extending the conflict outside Vietnam. In the light of the disclosures made two weeks before by a subcommittee of the Senate Foreign Relations Committee regarding American participation in the fighting in Laos, the conclusion is inescapable that on April 30, 1970, the United States embarked on what is now the Second Indochina War.
Thus Richard Nixon became the first Republican President to increase the responsibilities of the United States on that Asian landmass into which Washington's best strategists have so often insisted that no American army must ever plunge. And the operation was launched under conditions that the worst enemies of the United States might have hoped for. "We must have two or three Vietnams!" Ernesto "Che" Guevara had trumpeted in 1967 in the name of the worldwide revolution. And there they are, from Luang Prabang to Kep: two or three Vietnams, that is to say, the whole of that territory of Indochina which French colonization seems, in retrospect, to have put together to serve as the framework for a revolutionary undertaking — a framework that is more open to Vietnamese energies than the restricted territory of Vietnam alone.
The very word "Indochina" was created by colonization and for colonization; the Danish-born geographer Malte-Brun coined the term in 1852. In 1887, an Indochinese administration was set up, under the authority of a governor general presiding sometimes in Saigon and sometimes in Hanoi, composed of the following elements — the colony of Cochin China in the south; the protectorates of Annam in the east, which retained a ceremonial sovereign residing in Hue, and of Tonkin, in the north, where an "imperial delegate" resided; and the kingdoms of Cambodia and Laos in the west, whose monarchical systems were left intact by the colonizers. This arrangement was a strange combination of three Vietnamese countries strongly marked by Chinese influence and Confucian historical tradition and the little kingdoms of the Mekong, which belong, rather, with the cultural sphere of India and are wholly dominated by the strictest form of Buddhism.
In concocting this amalgam of nations and civilizations, the French colonizers were, like their British rivals in Nigeria, attempting to set up the most economical kind of operation, one by which some of the colonized peoples are made to exploit the others. And to a large extent they succeeded. In Vietnam they managed to maintain a class of mandarins, which enabled them to develop an artful indirect kind of colonization. In Laos and Cambodia, a class made up of Vietnamese petty officials, small businessmen and artisans served as the motor of French colonization. In this way a relatively economical system of exploitation was established, and the three peoples to be dominated were, in appearance, lined up against one another.
In fact, the French colonizers overshot their objective; in spite of themselves they united, in a strange way, these three different peoples, at very dissimilar levels of development, and in so doing imposed on them a single historical framework which the revolutionaries are now making use of for their own purposes. Of course, the Vietnamese intermediaries did inspire ill feeling and hatred of the kind which recently exploded in Cambodia. But this ill-will does not appear to be great enough to deflect the three peoples from developing together on converging courses in the years to come.
This Indochinese concept, intimately bound up with history and with colonial methods, was, indeed, very quickly seized upon by the revolutionaries, who retained the framework imposed by their enemy the better to struggle against him. This was what one of the founders of the Vietminh dubbed one day the strategy of "the glove turned inside out."
On February 3, 1930, in Hong Kong, the Vietnamese Communist Party was founded; Ho Chi Minh (then Nguyen Ai Quoc) immediately became its top leader. But six months later the leader called his comrades together in another conference in the course of which he gave the party a new name, rechristening it the Indochinese Communist Party (ICP). It was after consulting with the leaders of the Third International that the future president of the Democratic Republic of North Vietnam reached this decision, which in his eyes had the merit of giving the revolutionary effort he had just launched a more international character. It is worth noting, moreover, that the program which Nguyen Ai Quoc promulgated at that time included the following aims: (1) to overthrow imperialism, feudalism and the reactionary bourgeoisie in Vietnam, and (2) to achieve the complete independence of Indochina. Thus the first strategist of communism in this region restored a distinction consonant with the inequalities of the three countries in terms of development by calling for a social revolution in Vietnam and a political one in the peninsula as a whole.
It must be admitted that this Indochinese strategy was for a long time quite artificial, since the ICP remained for many years essentially Vietnamese. And it must be noted that when the Laotians and Cambodians truly embarked on revolutionary action they founded their own organizations — the Pathet Lao for the first and the Pracheachon for the second.
It was on an almost exclusively Vietnamese basis that Ho Chi Minh and his comrades launched the revolution in 1945. In the two neighboring countries the independence movement was sparked by very diverse forces: in Cambodia, they were, at first, two traditionally educated intellectuals, Hiem Chieu and Son Ngoc Minh, and in Laos a curious triumvirate of half-brother princes: the feudalist Petsarath, the liberal Souvanna Phouma and the Marxist Souphanouvong. Very quickly, moreover, the Vietnamese revolutionaries were to set up cells within the Laotian movement, while in Cambodia the local revolutionaries were to conserve a much greater degree of autonomy.
In 1951, six years after the outbreak of the colonial war against France, the three Indochinese movements concluded a Viet-Lao-Khmer alliance for the purpose of preparing to extend the fighting to the whole of the peninsula. Two years later, indeed, General Giap, pinned down by the French expeditionary corps in the key zones of the deltas of the Red River and the Mekong, suddenly decided to widen the theater of operations and entice his enemies onto new battlefields. In April 1953 he drew the French general staff toward Laos, encouraging them little by little to think that that was the terrain on which they could smash him. Between November 1953 and May 1954 came the creation, then the resistance, and finally the collapse of the entrenched camp of Dienbienphu. In broadening the First Indochina War, Giap faced the loss of everything. (This was a lesson which American strategists do not seem to have remembered; I shall have more to say on the subject.)
The Geneva Conference in 1954 was to bring the First Indochina War to an end. The Indochinese front was not, indeed, much in evidence at those councils: since the revolutionary parties had not had sufficient time to coördinate their efforts, Laos and Cambodia were represented there by governments whose only wish was to separate their problems from those of Vietnam and to draw a veil over the existence on their territories of groups that were more or less Marxist. But these groups were to grow bigger in the course of the ensuing years, and at the second Geneva Conference, the one devoted to Laos in the summer of 1962, the Indochinese theme was invoked much more often. The delegate from North Vietnam, Ung Van Khiem, hinted that a neutralization of the Indochinese region would be salutary. He specifically excluded the Democratic Republic of North Vietnam from this, but left the door open for the future.
This idea was taken up again in a much more precise and interesting form in various programs promulgated by the National Liberation Front of South Vietnam, founded in December i960, which went on record as favoring an alliance of neutral nations comprised of Cambodia, Laos and South Vietnam. It seems astonishing today that observers at the time did not take greater note of the very great originality of this program and the audacity it took for those South Vietnamese underground fighters to place their future within a framework in which, at least for a time, Cambodia and Laos would be closer to them than North Vietnam. Of course, for most of the American experts the NLF did not exist except as an echo of hypocritical orders dictated by Hanoi.
It was at the beginning of 1965, on the initiative of Prince Sihanouk, that Indochina emerged clearly as the major theme of all struggle against the American intervention and for political and economic reconstruction. On February 14, 1965, a "conference of Indochinese peoples" met in Phnom Penh. For Sihanouk this was most importantly an opportunity to have his country's frontiers guaranteed by the North Vietnamese and the NLF, whom he saw as the eventual victors and thus as his future neighbors. For Hanoi and the Front it was a chance to demonstrate the solidarity against imperialism of the revolution and neutralism, of the national masses and the national bourgeoisies, of the Vietnamese and their neighbors.
Geopolitical front, socio-economic alliance: at Phnom Penh were to be found all the factions opposed to American hegemony, from the intellectuals, mostly bourgeois and Catholic, of Tran Van Huu's "Committee for Peace and for the Renovation of South Vietnam" to the guerrilla fighters of the Pathet Lao and the bureaucrats of the Cambodian Sangkum. The major theme of the Phnom Penh meeting was the search for a formula for the neutralization of the whole of Indochina, the first step toward which might be an international conference like that of 1962, broadened to consider the future of the three countries. But the delegate from Hanoi, Hoang Quoc Viet, opposed this idea of Prince Sihanouk's: the bombardments of the North by the U.S. Air Force had just stiffened Hanoi's attitude still further. The Phnom Penh conference made no advance along the road to peace; but it confirmed and made manifest the "Indochinesev theme, and brought to light aspirations held in common by the most diverse delegations. It was, on this level, a success.
The American bombing of North Vietnam also contributed to the "materialization" of Indochina. It did this in three ways. First, the Vietnamese revolution, attacked at the very center of its strength, sought any and all means of hitting back, and all fronts thereafter became acceptable for striking a blow at the enemy. Secondly, this retaliation, with priority targets in South Vietnam, required a step-up in the transport of men and supplies from North to South by way of the Ho Chi Minh Trail, which goes through Laos for several hundred kilometers and through Cambodia for about a hundred. And finally, this aerial strategy gave an impetus to the increase of flights by American aircraft over the most diverse objectives — including, among others, frontiers; from this across a multiplicity of aerial incursions, in 1965 and 1966, which progressively nudged Cambodia into the war.
It was, however, in Laos that the greatest extension of the war outside the frontiers of Vietnam occurred. Since 1964 — that is, since the actual dissociation of the neutralist coalition government formed in 1962, a sort of modus vivendi had been established, dividing the kingdom into two zones: in the west, seven provinces, from Luang Prabang to Savannaket, controlled (less and less) by the Vientiane government of Prince Souvanna Phouma, and to the east, from Sam Neua to the Cambodian frontier, five provinces controlled by the Pathet Lao and traversed by the Ho Chi Minh Trail. The double neutralization, both diplomatic and governmental, imposed by the 14 powers participating in the second Geneva Conference had thus given way to an actual partition.
After the halt of the bombings of North Vietnam in November 1968, however, the American bombers stepped up their raids on the Ho Chi Minh Trail linking North and South Vietnam across Laos and part of Cambodia. The frequency and amplitude of these bombings were described in a report of a Senate Foreign Relations subcommittee published in April 1970. Testifying before this subcommittee, Senator Stuart Symington declared that these raids had practically supplanted the raids over North Vietnam that had been halted, and revealed that the U.S. ambassador in Vientiane had the authority to order these bombings and specify where the bombs were to be dropped, which, according to the Senator from Missouri, made that diplomat virtually a "military proconsul." Directly challenged on this matter, former Ambassador Sullivan declared that since he had been replaced in Vientiane by his colleague Godley these bombing raids had doubled.
So Laos, where almost 40,000 North Vietnamese soldiers are permanently entrenched in a zone which covers almost half the country and against which the U.S. Air Force daily launches from 300 to 400 aerial strikes, has certainly been "in the war" for several years. But operations there took on a new dimension in February 1970, when the Pathet Lao, aided by its Vietnamese allies, overran the Plaine des Jarres, the strategic crossroads of the country, which the tacit partition of Laos had provisionally kept outside its sector. The strategic ascendancy of the communist forces was thus affirmed: it was becoming increasingly obvious that Prince Souphannouvong and his allies held the country in their hands, and that if they did not take either Vientiane or Luang Prabang it was in consequence of a political decision and not a strategic incapacity. (What is more, in spite of the redoubling of operations by the U. S. Air Force after the capture of the Plaine des Jarres, the Pathet Lao's military and political ascendancy grew still more, so that it was able, at the beginning of May, to take an important center in the south, Attopeu.)
But this strategic ascendancy has not been used (or not yet) by the leaders of the Pathet Lao in pursuit of "total victory." After his forces had seized the Plaine des Jarres, Souphanouvong sent his half-brother and rival Souvanna Phouma an offer to negotiate within the framework of the 1962 agreements, to the end of establishing a coalition government, restoring territorial unity and cutting short all foreign intervention. Obviously, the successes it had achieved in the course of the preceding months would enable the Pathet Lao to increase its demands and its share of power. But the situation of the Vientiane government was so bad that it accepted the principle of negotiation, with Washington's approval.
It will be up to future historians to find out whether or not this trend toward "appeasement" in Laos helped to set in motion the operation of March 1970 in Phnom Penh, and whether or not it was to prevent the initiation of a process which might have led to a generalized negotiation of Indochinese problems as a whole that the "ultras" — South Vietnamese, Cambodians, Thais (and perhaps, but not probably, Americans) — prepared and carried out the Phnom Penh coup d'état.
Excerpted from The Vietnam War and International Law by Richard A. Falk. Copyright © 1972 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents
- Frontmatter, pg. i
- Acknowledgments, pg. v
- Contents, pg. vii
- Introduction, pg. 1
- From the Vietnam War to an Indochina War, pg. 9
- United States Military Action in Cambodia: Questions of International Law, pg. 23
- The Cambodian Operation and International Law, pg. 33
- Legal Dimensions of the Decision to Intercede in Cambodia, pg. 58
- Comments on the Articles on the Legality of the United States Action in Cambodia, pg. 96
- United States Military Intervention in Cambodia in the Light of International Law, pg. 100
- Self-Defense and Cambodia: A Critical Appraisal, pg. 138
- United States Recognition Policy and Cambodia, pg. 148
- The Constitutional Issues–Administration Position, pg. 163
- The Constitutionality of the Cambodian Incursion, pg. 175
- Commentary, pg. 187
- The Nuremberg Principles, pg. 193
- The Hostage Case (excerpts), pg. 249
- The High Command Case (excerpts), pg. 256
- The Matter of Yamashita (excerpts), pg. 264
- Targets in War: Legal Considerations, pg. 281
- Son My: War Crimes and Individual Responsibility, pg. 327
- Legal Aspects of the My Lai Incident, pg. 346
- Legal Aspects of the My Lai Incident–A Response to Professor Rubin, pg. 359
- Nuremberg and Vietnam: Who is Responsible for War Crimes?, pg. 379
- The Nuremberg Trials and Conscientious Objection to War: Justiciability under United States Municipal Law, pg. 399
- War Crimes and Vietnam: The “Nuremberg Defense” and the Military Service Resister, pg. 407
- Conscience and Anarchy: the Prosecution of War Resisters, pg. 463
- Nuremberg Law and U.S. Courts, pg. 477
- The President, the People, and the Power to Make War, pg. 489
- The Power of the Executive to Use Military Forces Abroad, pg. 506
- Presidential War-Making: Constitutional Prerogative or Usurpation?, pg. 521
- Committee on Foreign Relations, Comments on the National Commitments Resolution, pg. 584
- Congress and Foreign Policy, pg. 595
- The Appropriations Power as a Tool of Congressional Foreign Policy Making, pg. 606
- Viet-Nam in the Courts of the United States: “Political Questions”, pg. 625
- The Justiciability of Challenges to the Use of Military Forces Abroad, pg. 631
- Judicial Power, the “Political Question Doctrine,” and Foreign Relations, pg. 654
- The Justiciability of Legal Objections to the American Military Effort in Vietnam, pg. 699
- Legitimacy and Legal Rights of Revolutionary Movements With Special Reference to the Peoples’ evolutionary Government of South Viet Nam, pg. 723
- The Viet Nam Negotiations, pg. 741
- The International Control Commission Experience and the Role of an Improved International Supervisory Body in the Vietnamese Settlement, pg. 765
- The Neutralization of South Vietnam: Pros and Cons, pg. 811
- What We Should Learn from Vietnam, pg. 827
- Controlling Local Conflicts, pg. 840
- The Causes of Peace and Conditions of War, pg. 847
- President Nixon’s Address to the Nation on “Military Action in Cambodia,” April 30, 1970, pg. 865
- Ambassador Charles Yost’s Letter of May 5, 1970 to the United Nations Security Council, pg. 873
- A Report on the Conclusion of the Cambodian Operation Statement of President Nixon, June 30, 1970, pg. 875
- The Nuremberg Principles, pg. 893
- Geneva Convention Relative to the Treatment of Prisoners of War, 1949, pg. 895
- President Nixon’s Address to the Nation on “A New Peace Initiative for All Indochina,” October 7, 1970, pg. 904
- The National Commitments Resolution Senate Resolution 85, 91st Congress, 1st Session, Adopted June 25, 1969, pg. 909
- Amendment to the Foreign Military Sales Act (Cooper-Church Amendment), pg. 910
- Civil War Panel, pg. 921
- Contributors, pg. 922
- Permissions, pg. 925
- Index, pg. 929