The Vietnam War and International Law, Volume 4: The Concluding Phase

by Richard A. Falk

Overview

This concluding volume of The Vietnam War and International Law focuses on the last stages of America's combat role in Indochina.

The articles in the first section deal with general aspects of the relationship of international law to the Indochina War. Sections II and III are concerned with the adequacy of the laws of war under modern conditions of combat, and with related questions of individual responsibility for the violation of such laws.

Section IV deals with some of the procedural issues related to the negotiated settlement of the war. The materials in Section V seek to reappraise the relationship between the constitutional structure of the United States and the way in which the war was conducted, while the final section presents the major documents pertaining to the end of American combat involvement in Indochina. A supplement takes account of the surrender of South Vietnam in spring 1975.

Contributors to the volume-lawyers, scholars, and government officials-include Dean Rusk, Eugene V. Rostow, Richard A. Falk, John Norton Moore, and Richard Wasserstrom.

Originally published in 1976.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691617220
Publisher:	Princeton University Press
Publication date:	03/08/2015
Series:	American Society of International Law , #4587
Pages:	1066
Product dimensions:	6.10(w) x 9.10(h) x 1.90(d)

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The Vietnam War and International Law

The Concluding Phase Volume 4

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By Richard A. Falk

PRINCETON UNIVERSITY PRESS

Copyright © 1976 Princeton University Press
All rights reserved.
ISBN: 978-0-691-09230-0

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CHAPTER 1

Law and National Security

JOHN NORTON MOORE

The role of law in the management of national security has been debated throughout American history. Traces of the debate may be found as long ago as 1793 in the exchange between Hamilton and Jefferson about the relative importance of "interests" and "morality" in deciding whether the United States should support France in the war with England. Jefferson found an obligation to support France under the 1778 treaty of alliance and urged that the treaty obligation was binding on the nation. Hamilton countered that there was no obligation but even if there were it did not require the United States to jeopardize its "essential interests."

At the turn of the century the debate achieved- clearer focus in the writings of Alfred Thayer Mahan, the great sea power strategist, and Elihu Root, Secretary of State and a distinguished American jurist. The core of this second round was the importance of arbitration and other third-party machinery for the settlement of international disputes. Root and other jurists urged greater resort to international arbitration. Mahan countered that law, while sometimes useful, was incapable of dealing with questions of national expediency such as the Monroe Doctrine.

In the aftermath of World War II the debate was resumed more sharply and with a broader focus. On one side were international relations theorists such as Hans J. Morgenthau and George F. Kennan, who saw only a small role for international law and who opposed their "realist" position to what they believed were dangers of a "legalistic-moralistic" approach in dealing with national security issues. On the other side were jurists such as Hardy C. Dillard and Myres S. McDougal, who warned that the realists had an incomplete understanding of the role of international law and that their view, if influential, could be costly for American foreign policy.

The realists have, throughout the debate, had an important message. Over-reliance on international law can be a prescription for disaster in a loosely organized and intensely competitive international system. If the disappointments with arbitration treaties and universal disarmament schemes during the interwar years did not drive this home, the advent of the cold war certainly did. All this, however, has led to an overly broad indictment of the legal tradition. For while we have been preoccupied with the dangers — some very real — of a "legalistic-moralistic" strain in American foreign policy, we have failed to see the cost resulting from the slender capacity of our national security process to take an international legal perspective into account.

II

National security decisions must consider a range of component issues. At a first stage these include: What are the national goals? Are they realizable in the context in which they must be pursued? If so, are they realizable at a cost-benefit ratio which makes their pursuit in the national interest? Are preferable alternatives available which will achieve the goals at a more favorable ratio? And how can policies, once chosen, be most effectively implemented and justified?

Legal considerations, like political, military and economic considerations, are relevant to each of these issues. Yet there are no international legal specialists on the increasingly important staff of the National Security Council even though that staff now comprises over 50 substantive officers. Similarly, there is virtually no reference in the Pentagon Papers to the legal dimensions of policy in the Vietnam War. These examples illustrate a structural weakness in the national security process which impedes the consideration of international — and sometimes constitutional — legal components of policy.

There are, of course, showcase examples of national security decisions in which legal considerations have played a constructive role. Chief among them are the Berlin crisis of 1948 and the Cuban missile crisis of 1962. The "Forrestal Diaries" indicate that Forrestal and President Truman discussed "the controlling legal rights and undertakings" as a starting point for policy in the Berlin crisis. The United Nations was also used extensively and helpfully during the crisis. Similarly, because of early involvement of the State Department's Legal Adviser's Office, international legal considerations played a significant role in shaping U.S. policy during the missile crisis. Legal initiatives included designation of the action as a quarantine — since a blockade might have been construed as an act of war — and collective authorization by the Organization of American States (OAS).

Much more abundant examples can be found of insensitivity to international legal considerations. In order to justify the initiation of bombing of North Vietnam in February 1965, for instance, the raids were announced as reprisals for Vietcong attacks on the U.S. military advisers' compound at Pleiku. A case can be made that this bombing of the North, like U.S. participation in the War, was a lawful defensive response against a prior intervention by North Vietnam amounting to an armed attack under Article 51 of the U.N. Charter. But there is overwhelming authority that reprisal, which is a technical legal term for minor coercion in response to a breach of an international legal obligation not amounting to an armed attack, is barred by the Charter. By their unawareness of the relevant legal considerations or their unwillingness to take them into account, American policy-makers had chosen a public justification blatantly in violation of international law.

The April 1965 intervention in the Dominican Republic provides another example of insensitivity to legal considerations. The announced purpose of the first phase of the U.S. action in landing 400 marines was to protect U.S. nationals, a purpose which if carefully implemented would be lawful. But the action was neither implemented nor justified with the legal basis for such action in mind. And the second phase of the action, which committed more than 21,000 U.S. forces to an effort to end the Dominican civil strife, was undercut from the beginning by the failure to initiate the action under Article 6 of the Rio Treaty and by the overly broad rhetoric of President Johnson in proclaiming the inadmissibility of another Communist government anywhere in the hemisphere, a reason for the action which would make it in violation of Article 2 (4) of the U.N. Charter. These failures subsequently obscured the real differences between the U.S. action in the Dominican Republic and the Soviet action in Czechoslovakia.

Still another, and poignant, example is the lack of vigorous effort in the Indochina War, at least during the early years, to implement the laws of war. The United States is party to a variety of treaties relating to the conduct of warfare, including the Fourth Hague Convention of 1907 Respecting the Laws and Customs of War on Land and the four Geneva Conventions of 1949. It also recognizes a substantial body of customary international law setting minimum humanitarian standards for the conduct of warfare.

As the Son My tragedy amply confirms, violation of these standards may undermine the national effort as well as offend moral sensibilities. But the Son My tragedy also raises broader problems concerning the present status and effectiveness of the laws of war, problems which have been insufficiently considered by U.S. policy-makers. First, officially defined restrictions on combat too frequently have not been understood or implemented in the field. For example, there seems to have been wide disparity in understanding among regional commands in Vietnam that the "body count" was to include prisoners of war as well as enemy casualties and that "specified strike zones" did not override the laws of war which hold that attacks on noncombatants are not permissible. Second, the manifest ambiguities and deficiencies of the law, in face of the complexities of a counterinterventionary setting and newer military technology, have largely gone unattended. For instance, the principal legal analysis for the massive use of chemical herbicides in Vietnam seems to have been a memorandum prepared in March 1945 by Major-General Myron C. Cramer, then Judge Advocate General, concerning the possible use of chemical anti-crop agents against pockets of Japanese on the Pacific islands. This example is symptomatic of a lack of adequate legal review of newer weapons and tactics.

Most important, adequate national and international machinery that can deal with the full sweep of these problems has been lacking. Though army regulations require compliance with the laws of war and many military and other government advisers made significant individual efforts to ensure compliance in the field, the chances for a more vigorous and imaginative implementation would have been improved if an international legal perspective sensitive to the issues had been systematically structured into higher levels of the national security process. This might have been supplied by an interdepartmental group charged with responsibility for oversight and development of the laws of war.

A fourth example of insensitivity to legal considerations is in the recurring failure to prepare an adequate constitutional basis for major military actions abroad. The failure of President Truman to secure explicit congressional authorization for the Korean War was followed by President Johnson's unnecessary reliance on an ambiguous series of attacks on American ships in the Gulf of Tonkin as the occasion for obtaining congressional authorization for the Indochina War. In both cases the failure to allow more adequately for the constitutional legal dimensions proved to be major weaknesses of policy.

The Cambodian incursion of April 30, 1970 provides a fifth example. There were at least three ways that more adequate consideration of international legal factors might have strengthened the U.S. response in the crisis.

First, North Vietnamese attacks on Cambodia might have been protested by the United States in the Security Council much as the Soviet actions in curtailing access to Berlin were taken to the Security Council to lay the groundwork for subsequent Allied action to reopen the city. The Cambodian complaint to the Security Council on April 22 would have seemed an opportune time to press such a complaint in the Council. And at a minimum, the incursion should have been immediately reported to the Security Council pursuant to the obligation under Article 51 of the U.N. Charter.

Second, the principal legal basis for the Cambodian incursion was that a belligerent state may take action to end serious violations of neutral territory by an opposing belligerent. Yet the important presidential address explaining the action to the nation did not mention the principle. This and other public pronouncements might have been more focused and carried greater weight had they emphasized the substantial international legal authority for the action.

Third, and most important, a prior understanding with Cambodia might have been obtained for public release at the time of the operation. In view of the requirement of Article IV, paragraph 3, of the SEATO Treaty, which provides that no action on the territory of a protocol state such as Cambodia "shall be taken except at the invitation or with the consent of the government concerned," such an advance agreement would have seemed particularly advisable.

Finally, and most recently, there is the example of the U.S. response to the Pakistan-Bangladesh-India war. Perhaps the lack of clarity in the U.S. position was attributable to the complexity of the situation. It is, after all, difficult to distinguish the damsel from the dragon when one side is engaged in mass murder of noncombatants and the other intervenes in a war of secession against a traditional rival. Nevertheless, America might have been more persuasive in focusing on the shortcomings of both sides if she had taken account of the legal aspects of the conflict.

Initially, the United States should have vigorously urged Pakistan to live up to the provisions of Article 3 of the Geneva Convention of 1949 Relative to the Protection of Civilian Persons in Time of War. Article 3 sets out a series of minimum standards for the protection of noncombatants "in the case of armed conflict not of an international character occurring in the territory" of a party to the Convention. In fact, the United States had an obligation under Article 1 of the Convention to undertake "to ensure respect for the ... Convention in all circumstances."

With respect to the Indian action, the United States might have pointed out more specifically that the intervention violated a series of recent General Assembly Resolutions, including the 1960 Declaration on the Granting of Independence to Colonial Countries and Peoples and the 1965 Declaration on Inadmissibility of Intervention. The 1960 Declaration was particularly on point. Section 6 declares: "Any attempt aimed at the partial or total disruption of the national unity and the territorial integrity of a country is incompatible with the purposes and principles of the Charter of the United Nations."

The point is that the actions of both sides had their warts and that legal analysis could have helped to isolate the virus and prescribe the treatment.

The memoranda of the meetings of the Washington Special Action Group, made public by Jack Anderson, confirm that greater sensitivity to legal considerations was called for in the India-Pakistan crisis. These sources demonstrate that the National Security Council understood the advantages of utilizing the United Nations, a use which was helpful. But they evidence little awareness of international legal norms as a basis for appraisal of the Indian and Pakistani actions or for support of U.S. policy. For example, there was no mention of the General Assembly Resolutions condemning intervention in a war of secession — Resolutions which strongly supported U.S. opposition to the Indian intervention. Similarly, no mention was made of the 1949 Geneva Convention Relative to the Protection of Civilian Persons, despite a discussion of how best to ensure the safety of the Biharis in East Pakistan and the Bengalis in West Pakistan. More dramatically, although Henry Kissinger posed a question concerning the legal basis for the Indian naval blockade, there was no legal specialist present to answer it. The resulting discussion too easily suggested that there was no legal basis for an Indian blockade and failed to consider whether incidents involving American ships subsumed violations of international law even if the Indian blockade were legal.

The legal tradition is important in making policy as well as for its implementation and justification. The i960 Bay of Pigs invasion illustrates the cost of failing to take an international legal perspective into account in planning for U.S. action. There is no evidence that the U.S. planners weighed the effects of supplying illegal assistance to the insurgents. It should have been evident that the effort — successful or unsuccessful — would establish a precedent for external assistance to exile insurgents which would work strongly against the national interest when transferred to Indochina or the Middle East. The effort was also likely to contribute to a loss of national influence as a result of the associated violations of the charters of the Organization of American States and of the United Nations. It would probably overstate the case to say that the abortive invasion would not have taken place if the legal tradition had been adequately considered, but it might have been less likely had there been full and candid presentation of the international legal costs of the action.

Quite apart from the utility of an international legal perspective in crisis management there is also a need for more systematic representation of the legal tradition in formulating a coherent and intellectually powerful foreign policy. Under the pressures of the cold war the nation has drifted away from a consistent vision of world order. Yet a foreign policy which focuses on the importance of the stability of the system and cooperative solution of global problems seems strongly in the national interest.

(Continues...)

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Table of Contents

• Frontmatter, pg. i
• Note of Acknowledgments, pg. vii
• Contents, pg. ix
• Introduction, pg. 1
• Law and National Security, pg. 11
• Law and the Indochina War: A Retrospective View, pg. 25
• American Attitudes Toward International Law as Reflected in "The Pentagon Papers", pg. 49
• United Nations Peacekeeping: An Alternative for Future Vietnams, pg. 94
• The United Nations and the Conflict in Vietnam, pg. 114
• Aftermath of Vietnam: War Law and the Soldier, pg. 147
• Ratification of the Geneva Protocol on Gas and Bacterial Warfare: A Legal and Political Analysis, pg. 176
• Weapons Potentially Inhumane: The Case of Cluster Bombs, pg. 266
• Proscription of Ecocide: Arms Control and the Environment, pg. 283
• Environmental Warfare and Ecocide, pg. 287
• The Laws of Air Warfare: Are There Any?, pg. 304
• International Law Aspects of Repatriation of Prisoners of War During Hostilities, pg. 326
• International Law Aspects of Repatriation of Prisoners of War During Hostilities: A Reply, pg. 340
• Correspondence, pg. 358
• "Vietnam and The Nuremberg Principles: A Colloquy on War Crimes," Rutgers-Camden Law Journal, 5 (Fall 1973), 1-58, pg. 363
• A Response to Telford Taylor's "Nuremberg and Vietnam: An American Tragedy", pg. 421
• After My Lai: The Case for War Crimes Jurisdiction Over Civilians in Federal District Courts, pg. 447
• The Justness of the Peace, pg. 479
• Viet Nam 1974: A Revolution Unfulfilled, pg. 493
• One Year of Implementation of the Paris Agreement on Viet Nam, pg. 503
• The Supreme Court and the Vietnamese War, pg. 535
• War-Making Under the Constitution: The Original Understanding, pg. 573
• War-Making by the President, pg. 604
• The War-Making Powers: A Constitutional Flaw?, pg. 662
• The Indochina War Cases in the United States Court of Appeals for the Second Circuit, pg. 720
• Department of State Gives Views on Proposed War Powers Legislation, pg. 745
• Great Cases Make Bad Law: The War Powers Act, pg. 751
• Texts of (Paris) Agreement and Protocols on Ending the War and Restoring Peace in Vietnam, pg. 821
• Transcript of Le Due Tho's News Conference in Paris on Vietnam Accord, pg. 841
• An Interview With LY VAN SAU Of the Provisional Revolutionary Government Paris, January 31, 1973, pg. 846
• Dr. Kissinger's News Conference, January 24, 1973, pg. 849
• Act of the International Conference on Viet Nam, Signed at Paris March 2, 1973, pg. 864
• Four-Party Joint Communique, Signed at Paris on Implementation of Viet Nam Agreement, June 13, 1973, pg. 867
• Lao Government of Vientiane-Lao Patriotic Forces: Agreement on Cease-Fire in Laos* [Done at Vientiane, February 21, 1973], pg. 873
• Public Law 93-50 Second Supplemental Appropriation Act, 1973, pg. 883
• President Nixon's letter to Carl Albert and Mike Mansfield concerning the "Cambodia rider," August 3, 1973, pg. 883
• Holtzman v. Schlesinger, 361 Federal Supplement 553 (E. D. Ν. Y. 1973), pg. 887
• Holtzman v. Schlesinger, 484 Federal Reporter 2d Series 1307 (cir. 1973), pg. 900
• Mottola v. Nixon, 318 Federal Supplement 538 (1970), pg. 912
• Orlando v. Laird, 443 Federal Reporter 2d Series 1039 (certiori denied, 404 US 869 [1971]), pg. 928
• Commonwealth of Massachusetts v. Laird, pg. 933
• Commonwealth of Massachusetts v. Laird, 400 U.S. Reports 886 (1970), pg. 940
• Special Foreign Assistance Act of 1971, pg. 957
• President Nixon's Veto of War Powers Measure Overridden by the Congress, pg. 958
• WHITE HOUSE STATEMENT, NOVEMBER 7, pg. 961
• The War Powers Resolution, Joint Resolution, Public Law 93-148, November 7, 1973. Reprinted from the American Journal of International Law, 68 (April 1974). 372-376, pg. 962
• Department of Defense Appropriation Authorization Act, pg. 967
• Foreign Assistance Act of 1973, pg. 968
• Foreign Assistance and Related Programs Appropriation Act, pg. 971
• SPECIAL SUPPLEMENT WAR ENDS IN INDOCHINA. Editorial Note, pg. 975
• U.S. Protests North Viet-Nam's Violations of Peace Accords, pg. 977
• Department Discusses Goal of Military Assistance to Viet-Nam and Cambodia, pg. 979
• "Policy in Seven Points Promulgated and Applied by Provisional Revolutionary Government of South Vietnam, " text of statement, April 2, 1975., pg. 983
• U.S. Calls on North Viet-Nam To End Military Offensive, pg. 988
• President Ford's News Conference at San Diego April 3, pg. 990
• U.S. Foreign Policy: Finding Strength Through Adversity, pg. 991
• Excerpts from NguyenVan Thieu's Resignation Address as President of Republic of Vietnam, April 21, 1975, pg. 998
• Inaugural Address of DuongVan Minh as President of Republic of Vietnam, April 28, 1975, pg. 1001
• President Ford's Statement on Vietnam, April 29, 1975, pg. 1004
• Texts of letters sent by President Richard M. Nixon to President Nguyen Van Thieu, November 14, 1972 and January 5, 1973 released April 30, 1975 by Nguyen Tien Hung, former Minister of Planning, Republic of Vietnam, pg. 1005
• President Ford's Proclamation specifying end of the 'Vietnam Era" for purposes of qualifying for veterans benefits, May 7, 1975., pg. 1010
• Vietnam: The Final Reckoning, pg. 1011
• The Sulking Giant, pg. 1019
• VIETNAM: THE FINAL DECEPTIONS, pg. 1021
• Civil War Panel, pg. 1024
• Contributors, pg. 1025
• Permissions, pg. 1027
• Index, pg. 1031