Nuremberg and Vietnam (Reel 3)

What experience in government was appointed the civilian head of the top level

investigation ordered by the Pentagon into the MI LA incident.

Mr. Craig your report on the lie led to charges against 14 officers as high as

General close to the divisional commander. Why did you feel that responsibility went no

higher.

Essentially it was a question of how high the information had

reached our inquiry was limited to

determining the adequacy of the immediate reports and

investigation that had. Been undertaken following the incident.

You'll recall that the facts of me lie lay buried for.

Over a year and it was only when a former

serviceman. Brought the matter to the attention of

the Defense Department in Washington

and the. Various congressional leaders

that there was the investigation of which I was a

part some 20 months after the event.

Do you think as Mr. Taylor suggests that there should be a full inquiry

into higher responsibility.

If we look at a situation such as an me lie. I

don't believe that a further investigation

would be very productive. We conducted an exhaustive

investigation. It will in due course be made a matter of public record

present time. There are court martial proceedings

pending. And I'm not in a position where I can speak about

the findings of our

investigation but this will I think when

it is a matter of public record.

Show what at least in this situation went on.

It's not just not quite clear do you think responsibility should go higher than the

officers you want to charged or should stay at those officers charged or who may be

charged.

So far as the. Passing up of responsibility I think

that. It must be a conscious guilt it

must be a culpable guilt that is involved and that where

information does not proceed where there is not an intent to

violate a legal principle that there there is no criminal

liability and it would be inappropriate.

Thank you sir. Now we are Strunk real generally mashes defense counsel whether here

agrees with Mr Taylor the principles established by the master case are of great importance in

defining the criminal responsibility for war crimes in Vietnam.

I'm afraid that it's very clear under the rule as laid down by the United States Supreme

Court in the case. That in view of the finding of guilt of

Lieutenant Calley because of events which occurred it's on me.

Every important general officer in the chain of command.

In the American army. Is responsible criminally for what occurred. This is

all the way from the. Commander in Chief who at that time was President Lyndon B Johnson.

Through General Westmoreland who held a position similar to that of General Yamashita in the

Philippines. Now what I mean by that is this. If I can explain for a moment.

In the case the United States Supreme Court. Over the

strenuous objections of defense counsel of which I was one establish the principle. But it

made no difference. The general you Masha didn't know what was going on and couldn't have known what was going

on didn't order didn't come down didn't have any direct connection with these atrocities

whatsoever. But because of atrocities which were identical in many

cases with the evidence in the catalogue case of

identical identical. So when the provocation because it was a war against guerillas.

Because everybody's atrocities the United States Supreme Court upheld the finding of a military

commission that General Yamashita was even though he had no connection with them whatsoever

simply because he was the commander in chief. Now as

I said before applying a precedent. Law is based on precedent. If we

apply. We have no choice not only to try. The former

President Johnson and General Westmoreland but in view of the finding that these things

did occur in the Cali case the only remaining fact is were these men in the chain of

command. There's no doubt about it. We would literally have to convict.

Former President Johnson General Westmoreland and every other general officer in the chain of command.

I think it's a terrible thing and I don't think we should do it. I think we're faced with a

serious dilemma. I think that the remedy should be simply

to admit forthrightly face the fact that the case was a

mistake. It was badly wrong. That we should not and must not.

Convict people for something they do or didn't do but because of the position they held.

But further than that I think that these were crimes trials and I don't restrict it to

the trial at all. I think they were all a mistake. I think there were

exercises basically in vengeance rather than in the law. And I think it's most.

Important that we recognize the fact. That essentially what Iraq crimes trial

based on a violation of the laws of war debts. Is simply.

Tried to distinguish between a good way of killing a person and a bad way.

A nice way to fight a war and not the way to fight a war. The implication

that it's somehow criminal to shoot a civilian. Point blank range

but not criminal to destroy him by bombs from the skies or artillery shells.

I come back to the clear implications of a. Round crimes trial.

Which I when you analyze it that it's perfectly acceptable

for example to kill babies providing

we are sufficiently revolted by the policies of the political leaders of those

babies. RAR is a system of carrying out a political enterprise

trying to achieve a political end by killing people. I think we've got to face up to the

fact that war itself. Is the evil that war itself is the crime and

that you cannot conduct this criminal enterprise by legal

means.

Sir when Jones in London as a another participant in the work to work crimes

trials do you agree with Mr. Riehl that this was a vengeance rather than a law and that

the whole exercise is pointless.

No certainly not. I think it is essential to have the Nuremberg trial and the

other trials first of all to expose the crimes that had been committed

so that the record would be available for all time. But secondly to set

standards for future behavior. War is of course the supreme

crime. But at least one can hope that criminal as aggressive war

is the number of dead babies may be diminished in the

furtherance of the laws of the Geneva Convention and the

laws of war are directed to introduce as much pity and mercy into

war making this possible.

So as a reverend just one would like to ask whether you are taking the question

of your master principle and applying it to Vietnam. Do you think

would you agree with those who think that the guilt should go.

I think that if the facts prove that there was knowledge

of the crimes of dua being committed all that those higher up or to have known of what

is taking place and took no steps to prevent them happening that is

responsibility. After all the military Kamandi in particularly as a part of

c'mon here's the part of example he has to protect those within

the area of his command is a duty to protect civilians that Field Marshal Fine

men Stan was convicted of Hamburg because it was found that he had failed to

exercise that duty. That is a clear duty in the military command and he is the part of

life and it is those below him of primarily the duty to a bay he has a

higher duty to see that war is conducted within the limits of the laws of

war as well of course as is of achieving victory.

That's quite a distinction isn't it between amount as having knowledge and being in a position where they

opt to have knowledge.

Yes I think that is a distinction. But if crimes are

sufficiently prevalent or if that

means of investigating whether crimes are going on in these I

understand exist to the full in Vietnam. It is a surprising

situation. If war crimes. Ah being perpetrated on a

scale which is alleged to be taking place which the military commanders

have no knowledge.

So Reverend Jones thank you very much Mr Robert Jordan. As a recent into

reason your lawyer for the Army what do you think of Mr. Taylor's legal argument that the responsibility

for war crimes in Vietnam must be taken higher by the standards that your predecessors

applied 25 years ago.

Well of course if you want to talk about the overall conduct of the war as a as a

political exercise that's one thing we did it that's very difficult but we were trying

to avoid that let's talk about the problem of the responsibility flowing up from the

various acts of war crimes that occur in the field. And I'd just like

to read about a dozen lines from the high command keys. You're a bird. Modern

war entails a large major of decentralisation high command you cannot keep

completely informed of the details of military operations of subordinates and most assuredly

not of administrative measures. He has a right to assume that details and

trusted to responsible subordinates will be legally executed. There must be

personal der election that can occur only where the act is directly traceable to

him or where his failure to properly supervise his subordinates constitutes

criminal negligence on his part. In the latter case it must

be a personal neglect amounting to wanton immoral

disregard of the action of his subordinates amounting to

acquiescence. I believe that is the standard of Nuremberg and I don't believe you

should do is really inconsistent with that. I think that's a standard we ought to be applying to day in and by

that standard. By and large superiors in Vietnam would not be held accountable.

If those standards applied they would be held accountable.

If those standards were met they would be held accountable though if they if they met these rather restrictive

terms about the wanton immoral disregard and so forth and yes they

would be accountable they ought to be held accountable.

That's what about this point about commanders who ought to have had knowledge

and may not have.

Well you know on to a difficult thing to find first of all it's one thing if you

have war crimes occurring and you learn about it and you do something about it. There's a lot of evidence that General cruel

act is mentioned. That's in fact what's happened in Vietnam you can't prevent everything but

that is mean you have to overlook it when it happens and it hasn't been overlooked. Everybody knows

a matter of common sense in a large area military operations some of these things are going to occur so

everybody's on that kind of notice. But I don't believe anyone's on the kind of notice it's

widespread. The place where it is so prevalent that one has to move

in and stamp it out I don't believe that the evidence in Vietnam any that I've seen.

Would substantiate that you lied to me is an aberration I've seen nothing that even the

approximate sir Mr. McCreery Do you accept the criteria that Mr.

Jordan puts forth the Nuremberg criteria on the culpability of commanders.

Yes in a general way I do. I think that my own

investigations. Would indicate no

conscious program of annihilation. In the first instance. And I

think that that would be a necessary part of

linking. An event to an overall

program of unlawful conduct. So far as

the gathering of information that is indeed one of the

greatest difficulties of this war of finding out what has in

fact gone on and in the case of

atrocities they can be so localized and

contain themselves and this is indeed what was founded

that it was something that was capable of being contained

simply because of the circumstances of this war.

Mr. Turner do you in your book your say.

Paraphrasing according directly I believe that the model in the case of the Army and the

model health as you put it of the Army can only be restored if.

The Guild of leaders is scrutinised by the same standards that as you say their revered

predecessors applied 25 years ago. Do you think the definition Mr. Jordan and Mr. Moore

create the criteria they are suggesting or what you mean.

Well I think there's no disagreement with a statement of principle. I would like to comment on

what Mr. Riehl said about this very point and I'm sorry he's not here because I would have to

challenge you very explicitly. His interpretation of the decision and you marched

in what she have self right in such a valuable service. He says the court held that

a commander could be held responsible even if he didn't know about things. But in his

own book he quotes the Chief Justice Stone as majority opinion in that case and what the

court ruled was that an army commander has a duty to take such appropriate measures

as are within his power to control the troops under his command which I take it you

couldn't do unless he knew about them. Now that seems to me a perfectly sound principle

whether you in fact had the power or was a question of fact on which the Supreme Court said the military

commissions judgment was conclusive but I think the decision in principle is perfectly

sound. Could I make one comment on what Mr Roache said before I was going to go back to

Mr. Rhodes Why don't you make your comment and then we'll go back to him when I was about to be a little more impolite and gentle cool act and

say that I don't think Mr. Obama's invocation of the historical approaches has clarified the situation

here. I don't think that we've been talking about a teller without a Jago.

It seems to me that we have all along had in mind that the North

Vietnamese conduct of operations to get conk conduct of operations the use of

civilians and so forth is a large part of the precipitating factor here.

Mr Roach says that the North Vietnamese invaded South Vietnam assuming that to be

true if he means it that in any way relaxes our own obligations under the laws of

war. I think the answer is plainly no. Nor do I think the issue here is

whether we should be compared to the Nazis. The question is whether we are or

are not complying with the laws of war that we ourselves agreed to be bound by. And

finally the analogy between the president's responsibility and Governor Reagan seems to me quite out of

place. The president is commander in chief and is in the chain of command

over the generals and others under him. Governor Reagan is not in the chain of command over

whoever it was that killed those people in California.

Mr Roach I was simply trying to make the point on responsibility. That

the president of the United States is responsible for everything that happens just as the governor of California is

responsible for everything that happens under his jurisdiction. I do not believe that one

can pin objective guilt on a president

on the basis of actions which they in no way had any knowledge of

nor did they blind themselves deliberately to and in fact they were

subjectively innocent. And I think that the attempt to launch this thing to a ploy a domino

theory of guilt into this in a situation.

Is a mistake. Does anybody else want to come back quickly. Yes Mr.

Kerik I.

Think it's unfortunate that Mr. Rove made that historical interpretation he has because it

gets us into the question which we don't have time for a big just an unjust war and I think it

very strange that he begins his historical analysis in 1957 ignoring

the United States is involved with the French and for that

I'm afraid Mr. Kerry that we don't have that is the time we have available to make your observation.

Yes we know I've heard all the arguments. The moment has come to turn to our three

eminent jurists for a summing up and judgment. Three questions for them to

consider are on the basis of what you've heard tonight.

Has it been established by Mr. Telford Taylor and others that first the

principles of international law as applied at Nuremberg are binding on the United States

and the other belligerence in Vietnam. Second that in

addition to acknowledged atrocities like American military conduct in

Vietnam has included methods of warfare that violate the laws of war.

And third that American military and political leaders are responsible for such

violations under international law and that the guilt for atrocities like me lie

goes higher than the men so far charged. Now first can

we hear from L.A. Law to protect in Britain.

While it's impossible in a summary judgment like this to do justice to the complex and

important issues at stake. But one thing's absolutely clear on all sides

that the principles of international as applied at Nuremberg binding on the US and

on the other belligerence in Vietnam but it's worthwhile remembering what those principles

are the main ones are that it is illegal to start and wage an aggressive

war. The other one is of course the obvious proposition of

liability for war crimes and the possibility that responsibility may

go up the line not turning to the second question

whether the American methods of war in Vietnam violate the rules of

war. Well again it's difficult to express a view about

this.

The measures we've heard described like free fire forced evacuations saturation bombing

and so on may well have elements of illegality in them. But it depends

in each particular case what the circumstances are. We've heard a little bit tonight

about the doctrines of military necessity and the possibility of reprisals.

And we have to apply those concepts in any given case. And we're not hearing more

about an individual accusation. One can't do that. There remains the

question of whether American military and political leaders are responsible for

these violations under international law or not. It's important to appreciate that

just because a soldier commits an offense that does not mean that his superior

officer necessarily also labile the superior is

only liable if he actually ordered the offense or if he

so had a reasonable basis for knowing of the offense and did nothing about it.

Now this will cover the ordinary chain of command in the field. There is also the

question of whether you can go beyond that to attribute responsibility to the

American superior military and political readers. I'm very doubtful

about this in respect of war crimes in the field. I'm rather persuaded by the

arguments I've heard tonight about the young Ashita case that the Supreme Court

faced the responsibility of the commanding officer in that case rather too high.

And there are decisions of war crimes tribunals in Europe that placed it somewhat

lower. But with students with a question which I think if I'm wrong at the present

time as to the responsibility of the American

political leaders for the war in Vietnam the question of whether the

war in Vietnam is an illegal war. If it is an illegal war

they are liable. But Reagan did tell him so. As explained how

difficult it is in the state of our present knowledge to assess the conditions

of mind of the people concerned and all effect and

one always has to bear in mind in this situation that it's no good to Woods

going back over the ground and looking at it with the benefit of hindsight and saying

they should have done otherwise.

Thank you very much for such a large effect. Can we go now to Berlin and professors I will hold

until then.

I am in Wallace complete agreement with what talked a lot about just so

that I too fully agree that the rules of Nuremberg

valid international law applicable to all or all the parties in the Vietnam

conflict. If they were applicable in other cases

as to the second question we have heard very many

corn contre and I think of all the things I am convinced that

evacuation measures of location seem to be

compatible with the Geneva Convention and hence could not in any case be

conjoined and leave him as a warrior. I am definitely not so sure

about the free fire zones where we were very good.

Controversial interpretations which seem to make it seem

quite all right this is a political measure and if you can and if people

understood the notion of saying that everything was alright well

they misunderstood these orders if that was the case well those were unfortunate things

but that would be about the putatively are strikes again

much for me to justify the measure that's here.

I would look at least as sponsibility.

Well but they're out of the question. Sleep the way up here.

I am quite in agreement with what was quoted. Your high command case

and under these circumstances I do not think that the one thing this

league of. Life and of war can

be against commanders and you

may perhaps be understood as imposing moral

standards for if you will

come out of the field and not become honest but I am

also more or less convince I'm quite convinced when one has been

saved by a president for Taylor

him so that perhaps she took when I was

over just like in trying to impose who have a duty

in the field to observe. I want to conclude

by saying that I fully agree with the

sentiment that war itself is an evil and but

just because it is an evil which unfortunately as it

is to be with us it is so very important to take

as strong as possible measures to ensure that the rules

of war human to lose a war so

heavily armed conflict.

Thank you for her says I to her. Thank you very much. And finally judge

in New York.

Thank you. I think it is quite clear to everyone

that this is not an actual trial. We are not here

trying the United States of America. We are not trying any particular

individual. We are not pronouncing on the guilt or innocence

of any particular individual whether enlisted in our officer.

We have had to present ation of certain bits of evidence. It has been impossible

obviously here for all of the available evidence to be presented.

We have been told for instance in one investigation that they are not

free to release that. The details are

secured in that investigation. Certain measures

are sub judice.

I think it must also be clear and I think it is clear from what

professor a lot of packed professors have said that

we in expressing an opinion. Cannot base

ourselves on want we have heard here tonight. It is

inevitable that we each one of us are some odd affected by

views which we have held as a result of our previous studies.

Questions of this kind because we have all three of us been professor

of international law and have had occasion to study these

matters. Now as to these specific questions

I think the three of us are fully agreed that the

principles of Nuremberg do applied to the United States

and to it as in Viet Nam. I would put

more emphasis than has been put tonight upon the resolution of the

General Assembly of the United Nations which was adopted unanimously and the

United States participation in that unanimous vote is a factor which must be

taken into account and Its Responsibility for observing those rules

as rules of international law characterized in that

resolution.

And the next place. I. Personally feel that

we cannot find here any conspiracy to wage aggressive war

in any terms comparable to those which were applicable to Hitler's

tried at Nuremberg and I think there is been pretty general

agreement that this question of trying the

responsibility for starting the war there was the

determination of the illegality of the war is a question which probably

defies examination by almost any

tribunal which could be made available at this time.

Moreover I think we must take into account and I think Professor Taylor has brought this to

a new book that the crime of aggression has defied definition in

spite of efforts over a series of years to decide what

the crime of aggression is. Now as to these specific acts

it seems to me that we are up against a question of

evidence which we are not in a position to weigh at this

time. We can only deal in certain principles. One

principle I think is clear that international law has not

characterized an aerial bombardment pursy as

illegal some killing from the air may be illegal but the mere

fact that there has been bombardment of towns does

not constitute a crime. Personally I cannot

escape that conclusion and I think that this is revealed in all of the

testimony tonight that there have been crimes even though some of them

may have been. Contrary to orders.

And finally since it is so limited I merely

wish to express my own opinion on this question of responsibility.

If there is an appropriate method an impartial method of determining the

validity of charges then I think responsibility

must be pinned up and to those who had authority to

forbid to prevent or to punish but who actually directed

sanctioned approved or acquiesced in or

tolerated the acts in question.

It was just him. Thank you very much. Well

that is as far as we can pursue these issues this evening for America. Obviously

the questions remain. How much further can the United States

dare to pursue these allegations of individual or national

guilt. Does the nation need to clear its

conscience for its own sake or for the sake of world opinion.

God not

God.