Public International Law

Summary

A peaceful settlement of the Vietnam War requires some initial conception of a reasonable bargaining position for both sides. In my judgment, the United States has not sufficiently shown that it understands or is prepared to negotiate on such a basis.

Our continuing refusal to recognize the Vietcong as a formal participant in a peace settlement underscores our unreasonableness. It implies that the Saigon regime is the only legitimate political elite in South Vietnam, whereas the claims of the NLF to both autonomy and legitimacy are at least as good as, and probably considerably better than, those of Saigon. To say that Hanoi alone represents “the other side” is to insist upon the fiction that there is no genuine civil war in South Vietnam and that the war has from beginning to end been a consequence of aggression by North Vietnam. Such a premise for negotiations is obviously unacceptable to the NLF, but even Hanoi – however much it might like to control the future of South Vietnam – is naturally reluctant to concede this American interpretation of the war. Neither the actual political relationships nor the stated objectives of Hanoi bear out the American contention. As a preliminary adaptation to political reality, it is important for the United States to acknowledge the war for what it primarily is – a civil war in which both sides have received extensive military support and political guidance from outside states.

This interpretation leads to the conclusion that in any settlement Saigon and the NLF must participate and negotiate on the basis of formal equality. And if the negotiations are to succeed, once formal equality is established, it will also be necessary to recognize the factual inequality of the two sides. That is, it will be necessary to recognize that the NLF commands more military power and political stability than Saigon.

Our policy in Vietnam is an outcome of the crusade against Communism and typifies the pitfalls of accepting an over-generalized commitment to fight whenever and wherever there may otherwise result an extension of Communist influence. This anti-Communist crusade has led to the use of military power by the United States throughout the world. It has also led the United States to repudiate increasingly the procedures of the UN that it did so much to create.

Summary

I believe the United States has a strong interest in developing rules of international law that limit claimed rights to use armed force and encourage the peaceful resolution of disputes.

John R. Stevenson, Legal Adviser, “United States Military Actions in Cambodia: Questions of International Law,” Department of State Bulletin 62 (1970), 766

[P]ublic, Congressional and international support also depends on a prompt and convincing demonstration of the legality of our actions; we cannot afford to wait until action is taken to start preparing our case.

William P. Rogers, Secretary of State, Memorandum dated June 13, 1970, reported in New York Times, June 24, 1970, p. 3

The invasion of Cambodian territory by the armed forces of the United States and South Viet-Nam in the spring of 1970 raises serious questions of international law. The development of international law since the end of World War I exhibits a consistent effort to prohibit recourse to force by governments in international society. The Nuremberg Judgment called aggression against a foreign country “the supreme crime” against mankind. The United Nations Charter is built around the notion that the only occasions on which it is legal to use force are in response to an armed attack and as authorized by an organ of the United Nations. The Cambodian operation was obviously neither a response to a prior armed attack upon South Viet-Nam nor an action authorized or ratified by the United Nations. In announcing the decision to the American public on April 30, 1970, President Nixon made no effort to justify the invasion under international law. Such a failure of explanation illustrates the extreme unilateralism that has been exhibited by the United States Government throughout the Viet-Nam War. This failure lends credence to the contention that the United States is conducting an imperial war of repression in Indochina and that it owes explanations for its policy, if at all, only to the American public and, even then, mainly to provide reassurance about the relevance of a challenged policy to the welfare of American troops.

Summary

No contemporary problem of world order is more troublesome for an international lawyer than the analysis of the international law of “internal war.” A war is usefully classified as internal when violence takes place primarily within a single political entity, regardless of foreign support for the contending factions. The insurgents who won the American Revolution were heavily supported by French arms. Wars of national liberation are not new, nor is external support for an incumbent regime. But considerable historical experience with foreign intervention in internal wars has not been adequately incorporated into prevailing doctrines of international law. In an age of civil turbulence and nuclear risk, the requirements of world order make imperative the effort to overcome the consequent confusion.

The central issue is whether an externally abetted internal war belongs in either traditional legal category of war – “civil” or “international.” Four sub-inquiries are relevant. What are the legal restraints, if any, upon national discretion to treat a particular internal war as an international war? What rules and procedures are available to determine whether foreign participation in an internal war constitutes “military assistance,” “intervention,” “aggression,” or “an armed attack”? What responses are permissible by the victim of “aggression” or “an armed attack”? Finally, what should be the roles of national, regional, and global actors in interpreting and applying the relevant rules?

If the internal war is regarded as a “civil” war, then the legally permitted response to intervention is restricted to counter-intervention; an intervening nation whose own territory is not the scene of conflict may not attack the territory of a state intervening on the other side. If foreign intervention were held to convert an “internal” war into an “international” war, the intervention could be regarded as an armed attack that would justify action in self-defense proportionate to the aggression. The victim of aggression is entitled, if necessary, to attack the territory of the aggressor, expanding the arena of violence to more than a single political entity. Given the commitment of international law to limiting the scope, duration, and intensity of warfare, it would appear desirable severely to restrict, or perhaps to deny altogether, the discretion of nations to convert an internal war into an international war by characterizing external participation as “aggression” rather than as “intervention.”

This collection of scholarly and critical essays about the legal aspects of the Vietnam War explores various crimes committed by the United States against North Vietnam: war of aggression; war crimes in bombing civilian targets such as schools and hospitals, and using napalm, cluster bombs, and Agent Orange; crimes against humanity in moving large parts of the population to so-called strategic hamlets; and alleged genocide and ecocide. International lawyer Richard Falk, who observed these acts personally in North Vietnam in 1968, uses international law to show how they came about. This book brings together essays that he has written on the Vietnam War and on its relationship to international law, American foreign policy, and the global world order. Falk argues that only a stronger adherence to international law can save the world from such future tragedies and create a sustainable world order.

Summary

Today, “Nuremberg” is both what actually happened there and what people think happened, and the second is more important than the first … it is not the bare record but the ethos of Nuremberg that we must reckon today.

Telford Taylor

We must never forget that the record on which we judge these defendants is the record on which history will judge us tomorrow. To pass these defendants a poisoned chalice is to put it to our lips as well.

Justice Robert H. Jackson

In keeping with Telford Taylor's admonition, the focus of this article is upon “the ethos of Nuremberg” rather than on a reconstruction of the historical record yet again. And this ethos is itself shaped by the unfolding historical setting. The interpretation of the Nuremberg ethos is at the present juncture very much caught up in the global atmosphere brought about by the end of the Cold War. It has been especially shaped by the decision of the United Nations Security Council in 1993 to convene an ad hoc tribunal at The Hague to indict and prosecute individuals accused of war crimes arising out of the breakup of the former Yugoslavia, especially in relation to the war in Bosnia, as well as those associated with the genocidal events occurring in Rwanda during 1994. Almost fifty years passed between the establishment of the Nuremberg Tribunal and the ad hoc arrangements occasioned by the events in the former Yugoslavia and Rwanda. In the intervening period there were many atrocities assuming the form of “crimes against humanity” and even “genocide,” yet no intergovernmental or United Nations initiative ensued. It would seem that the East/West divide precluded the convening of a war crimes tribunal throughout the Cold War, while the absence of strategic conflict in the 1990s has allowed such initiatives. The idea of an international criminal process has even been relied upon as a kind of compensatory undertaking expected to reduce the heat from the public for the failure to mount effective humanitarian interventions to protect the peoples of Bosnia and Rwanda, who were at extreme risk.

Summary

This volume rests on a simple proposition: The legal arguments against military intervention in Vietnam were wrongly rejected by the US government and, until these are reconsidered and reversed, failure abroad and deterioration at home are the likely results.

It may seem, with the passage of more than fifty years since the American military engagement in Vietnam became a serious commitment of national policy, that the legal controversy that accompanied the involvement should be forgotten, and that the most reasonable recommendation would be to move on. The world has changed drastically in this past half-century, as has – especially – the context in which force is used, creating a drastically different relationship between international law and recourse to force beyond the borders of a sovereign state.

Actually, the passage of time and the preoccupation with present security challenges have led to an unfortunate neglect of the Vietnam precedent, which retains an extraordinary relevance, especially for the development of American thought and practice relative to military intervention in foreign societies. As this collection of writings attempts to show, unlike more recent legally dubious interventions, especially associated with the attack on Iraq in 2003, there has been no high-profile government attempt to provide a convincing legal rationale for its recourse to force.

Until Vietnam, with some important exceptions relating to covert intervention as in Iran (1953) and Guatemala (1954), the United States was associated with the promotion of the rule of law in international political life and an attitude of respect toward the constraints on the use of force set forth, largely at the urging of Washington, in the Charter of the United Nations. Constructing a global legal order was a vital ingredient of its leadership role assumed at the end of World War II, and reinforced by the backing of the UN in the Korean War and the stand against recourse to war and acquisition of territory through force by its European allies and Israel in the 1956 Suez War.

Summary

In the best traditions of scholarly debate Professor John Norton Moore has taken sharp and fundamental issue with the legal analysis of the United States' role in the Viet Nam war that I outlined in a previous issue of the Yale Law Journal. Professor Moore has not persuaded me either that my approach is “simplistic” or that its application to Viet Nam is “unsound,” but he has identified weaknesses and incompletenesses in my earlier formulation. In addition, he has developed an alternative legal framework for assessing foreign intervention in violent struggles for the control of a national society. My objective in responding is to clarify the contending world order positions that each of us espouses. Although Professor Moore affirms and I deny the legality of the United States' military role in Viet Nam, the main center of intellectual gravity in this debate is less passing judgment on the grand legal issue of American presence (at this stage, a legalistic exercise) than it is assessing the policy implications of the Viet Nam precedent for the future of international legal order.

Professor Moore and I agree that international law can serve as a significant source of guidance to the national policy-maker in the area of war and peace. International law implies a process of decision incorporating perspectives that tend to be left out of account when government officials develop national policies solely by considering capabilities, strategies, and current foreign policy goals that are designed to maximize the short-run “national advantage.” International law contains rules and standards rooted in the cosmopolitan tradition of a community of nations, whereas foreign policy tends to be rooted in the more particularistic traditions of each state. The future of world legal order may depend to a great degree on the extent to which the decision process relied upon in principal states to form foreign policy can come increasingly to incorporate more cosmopolitan perspectives.

International law has itself evolved through a process of decision in which national policies governing the appropriate uses of military power have been clarified by the assertion of adverse national claims buttressed by supporting explanations and rationale. This process is especially germane whenever the relevance of the rules to the claims of states is challenged on a legal basis, as it has been since the outset of major United States involvement in Viet Nam.

Summary

This monograph deals with the legal status of the United States involvement in the Vietnam war. It tries to move beyond the existing legal literature in two principal respects:

Summary

“The Nuremberg Defense in the Pentagon Papers Case,” Columbia Journal of Transnational Law, 13, 2 (1974), 208–38.

“A Nuremberg Perspective on the Trial of Karl Armstrong,” in Richard A. Falk, A Global Approach To National Policy, Cambridge, Mass.: Harvard University Press, Copyright © 1975 by the President and Fellows of Harvard College, as chapter 8: 133–45.

“Telford Taylor and the Legacy of Nuremberg,” Columbia Journal of Transnational Law, 37, 3 (1999), 693–723.

Summary

Since 1950, five American Presidents have supported a series of policies designed to maintain a pro-West, anticommunist government in control of South Vietnam. The persistence of such policies exhibits remarkable continuity, given the enormous difficulties encountered in pursuing this objective. There have been many efforts to explain the origins and durability of the American commitment. None has proved entirely satisfactory. It seems clear that the impetus for the policy arose from at least three principal objectives: the containment of the world communist movement, the more specific containment of mainland China, and the containment of revolutionary nationalism. But such goals can be pursued in a variety of ways, and it remains unclear why over the years the United States was prepared to make such immense sacrifices in blood, treasure, and prestige in their pursuit.

One rationale offered was the recollection that policies of appeasement – in what might be called the “lesson of Munich” – had not prevented World War II. American policy-makers prominent during the buildup of a military commitment to defend the Saigon regime seemed to believe the idea that the international communist movement was monolithic and committed to world conquest; they therefore saw the choice as one between “standing up to aggression” or provoking World War III. The notion of “containment” or “holding the line” arose as a reaction to Stalinism but persisted into the 1960s, long after Stalin's death and despite hard evidence of a deep Sino-Soviet split. This notion was accompanied by an image of “falling dominoes”: If South Vietnam should fall to communism, then Thailand, Cambodia, Laos, and the Malay peninsula would also fall in inevitable succession. Therefore, although the stakes in Vietnam might appear small and remote if taken in isolation, it was argued that a large commitment was nevertheless justified because of these larger concerns – namely, the geopolitical stability of all of South Asia and the establishment as precedent of a significant prohibition against a communist aggressor.

Such reasoning is abstract and ideological and does not fit too well with the concrete facts of conflict in Asia, especially in Vietnam. When the United States made its original economic commitment to the French in 1950, the struggle for Indochina was a typical anticolonial war of independence of the sort that developed in Asia and Africa after World War II.

Summary

“A Vietnam Settlement: The View from Hanoi,” Princeton University, Center of International Studies, Policy Memorandum No. 34 (1968).

“US in Vietnam: Rationale and Law,” Dissent, May–Jun. 1966, 275–84.

“International Law and the United States Role in the Viet Nam War,” Yale Law Journal, 75, 7 (Jun. 1966), 1122–60.

“International Law and the United States Role in Viet Nam: A Response to Professor Moore,” Yale Law Journal, 76, 6 (May 1967), 1095–1158.

“The Six Legal Dimensions of the Vietnam War,” Princeton University, Center of International Studies, Research Monograph No. 34 (1968).

Summary

“Learning from Vietnam,” in A Global Approach to National Policy by Richard A. Falk, Cambridge, Mass.: Harvard University Press, Copyright © 1975 by the President and Fellows of Harvard College, as chapter 4: 57–74.

“The Vietnam Syndrome: From the Gulf of Tonkin to Iraq,” chap. 8 in The Record of the Paper: How the New York Times Misreports US Foreign Policy, by Howard Friel and Richard Falk, Verso, London, 2004: 226–50.

“‘The Vietnam Syndrome’: The Kerrey Revelations Raise Anew Issues of Morality and Military Power,” The Nation, Jul. 9, 2001, pp. 18–23.

“Why the Legal Debate on the Vietnam War Still Matters: The Case for Revisiting the International Law Debate.”

Summary

Forty years after the defeat of the United States in Vietnam, the central lessons of that war remain unlearned. Even worse, the mistakes made and crimes committed in Vietnam have been repeated at great human, material, and strategic cost in a variety of subsequent national settings. The central unlearned lesson in Vietnam is that the collapse of the European colonial order fundamentally changed the effective balance of power in a variety of North/South conflict situations that reduce the agency of military superiority in a variety of ways.

What makes this change elusive is that it reflected developments that fall outside the policy parameters influential in the leadership circles of most governments for a cluster of reasons. Most fundamentally, governmental geopolitical calculations relating to world order continue to be based on attributing a decisive causal influence to relative military capabilities, an understanding at the core of “realist” thinking and behavior. Within this paradigm, military superiority is regarded as the main driver of conflict resolution, and the winners in wars are thought to reflect the advantages of hard-power differentials. The efficiency and rewards of military conquest in the colonial era vindicated this kind of realist thinking. Europe with its dominant military technology was able to control the political life and exploit the resources of populous countries throughout Asia, Africa, and Latin America with a minimum of expenditure and casualties, encountering manageable resistance, while reaping the rewards of empire. The outcomes of World War I and II further vindicated the wider orbit of the realist way of thinking and acting, with military superiority based on technological innovation, quantitative measures, and doctrinal adaptation to new circumstances of conflict receiving most of the credit for achieving political victories.

The Vietnam War was a dramatic and radical challenge to the realist consensus on how the world works, continuing a pattern already evident in nationalist victories in several earlier colonial wars, which were won – against expectations – by anti-colonial forces. Despite these illuminating results of colonial wars after World War II, the American defeat in Vietnam came as a shock. The candid acknowledgment of this defeat has been twisted out of recognition to this day by the interpretive spins placed upon the Vietnam experience by the American political establishment.

Summary

INTRODUCTION

The most celebrated case brought by the United States Government against domestic opponents of the Vietnam War arose out of the release in 1971 of major portions of the so-called Pentagon Papers by Daniel Ellsberg and Anthony Russo. As is generally known, the Government's misconduct in United States v. Russo eventually led to the dismissal of the charges. As a consequence, important questions concerning the application of international criminal law embedded in the litigation were never resolved, although interim rulings by Judge Matthew Byrne suggested their disposition at the trial level. In particular, the defendants Ellsberg and Russo tried to argue that the disclosure of the Pentagon Papers was a reasonable and effective method of terminating their complicity with a war conducted in violation of international law.

International law imposes criminal liability for complicity in crimes against the peace. It is arguable that this potential liability of Americans has been officially recognized as part of the American law. Hence, fairness to potential defendants makes it essential that they be allowed to rely upon any defense that arises out of their accountability under international law standards. In addition, the substantive merits of international criminal law make it desirable to encourage national implementation, including a recognition that individual action undertaken to prevent the consummation of international crimes should be accorded precedence over conflicting dictates of national law.

This article will examine these issues in the context of United States v. Russo. I shall show that the released portion of the Pentagon Papers contained strong evidence supporting a reasonable belief that the United States had pursued and was continuing to pursue a Vietnam policy which violated international law; and that the defendants, Ellsberg and Russo, could reasonably infer that they were accessories to the commission and execution of public policies in violation of international law. Furthermore, I will argue that the defendants could have been internationally indicted for these acts in accordance with precedents established by the Allied prosecutions of German citizens following World War II. Therefore, by partially disclosing the contents of the Pentagon Papers the defendants, I would contend, were making a reasonable effort to terminate their complicity in such illegal acts. Furthermore, the “superior orders” dictated by domestic law to prohibit the disclosure of such information would not act as a bar against international prosecution or conviction based on alleged violations of international criminal law.

Summary

When I contacted Richard Falk six years ago regarding a collection of his writings on the Vietnam War and international law, I did not know that he had a special relationship to Sweden. He had been invited by Peter Wallensteen who – from 1985 to 2012 – was Dag Hammarskjöld Professor of Peace and Conflict Research at Uppsala University to be Visiting Olof Palme Professor for the academic year 1990–91, which, according to Professor Wallensteen, turned out to be a very successful appointment, not least for the doctoral students and the young researchers.

According to Said Mahmoudi, who is now Professor of International Law at Stockholm University, Falk became a good friend and participated in the academic as well as the general cultural and political discussion in Sweden. Professor Mahmoudi responded to an e-mail regarding Falk's status as an international law scholar in Sweden and wrote that Falk

held several important seminars and lectures during his stay in Stockholm. His time here coincided with the American invasion of Kuwait to push back Saddam Hussein. He gave a talk on the subject, which was very well received. I don't think he is unknown in Sweden. He published several important articles in DN [Dagens Nyheter] at that time. Among those Swedes who deal with international law, international relations and political science, he is a very well-known scholar. Even internationally, he is respected as one of the most leading living American international lawyers. He was a student and friend of the famous Yale international law professor Myers S. McDougal, but one of the very few who took a critical approach to the dominant power-inspired American policy in the world.

A testimony of the appreciation of Falk's merits is that he was awarded an honorary doctorate from the Faculty of Law at Stockholm University in 2006.

However, Falk's contacts with Sweden go further back. Already in 1985 he had been consulted and thanked by Ann-Sofie Nilsson, who spent that year as a Visiting Fellow at the Center of International Studies at Princeton University, for his “valuable suggestions” to her doctoral thesis “Political Uses of International Law” in political science at the University of Lund in 1987.

Summary

The Kerrey disclosures have surfaced an array of both laudable and lamentable sentiments, but perhaps none worse than those associated with William Safire's April 30 tirade directed at the so-called Vietnam Syndrome. Safire defines the syndrome as “that revulsion at the use of military power that afflicted our national psyche for decades after our defeat.” At least we can be grateful that Safire nowhere makes clear what the wars since Vietnam were that America was prevented from entering because of what he calls the “national affliction” that accompanied the syndrome. It is this alleged inhibition on warmaking that has now resurfaced in the debate about Bob Kerrey's degree of guilt and accountability, vividly presented in these pages by Christopher Hitchens and Jonathan Schell. Overall, Safire wants to affirm Ronald Reagan's embrace of illusion by regarding the Vietnam War as an occasion of national heroism and honor. Safire ends his column plaintively: “Are there no voices left, after that costly loss of life, to reject the Syndrome's humiliating accusation of national arrogance – and to recall a noble motive?”

Alas, there are plenty such voices, most strident among them perhaps that of Senator John McCain, who writes with the authority of a former POW who was tortured during a long period of captivity in Vietnam. For McCain, despite the disclosure of the deliberate killing of civilians in the village hamlet of Thanh Phong back in February 1969, Kerrey remains “a war hero” who should be understood as having done what needed to be done in the sort of war being fought in Vietnam. Most disturbing, McCain argues that Vietnam was the kind of war that required its participants to hate the enemy, and he unabashedly makes a combat virtue out of hate. In his words: “I hated my enemies even before they held me captive because hate sustained me in my devotion to their complete destruction and helped me overcome the virtuous human impulse to recoil in disgust from what had to be done by my hand.” It is bad enough when a pilot holds such views but, when hatred informs the spirit of a ground war carried on in the midst of a densely inhabited civilian society, it is worse.

Public International Law

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2 - US in Vietnam: Rationale and Law

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8 - The Cambodian Operation and International Law

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3 - International Law and the United States Role in the Viet Nam War

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Contents

Acknowledgments

Revisiting the Vietnam War and International Law

11 - Telford Taylor and the Legacy of Nuremberg

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15 - Why the Legal Debate on the Vietnam War Still Matters: The Case for Revisiting the International Law Debate

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4 - International Law and the United States Role in Viet Nam: A Response to Professor Moore

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5 - The Six Legal Dimensions of the Vietnam War

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PART III - THE VIETNAM WAR AND THE NUREMBERG PRINCIPLES

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12 - Learning from Vietnam

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Frontmatter

PART I - THE US ROLE IN VIETNAM AND INTERNATIONAL LAW

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PART IV - THE LEGACY OF THE VIETNAM WAR

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Index

Foreword: The Harmful Legacy of Lawlessness in Vietnam

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9 - The Nuremberg Defense in the Pentagon Papers Case

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Preface

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14 - “The Vietnam Syndrome”: The Kerrey Revelations Raise Anew Issues of Morality and Military Power

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