[61]

As the war in Vietnam intensified, the issue of prisoners of war and war crimes gained in significance, both in Vietnam and worldwide. The MACV Staff judge Advocate became deeply involved in this issue, developing legal policy and implementing rules based on the Geneva Conventions, United States policy, and Free World forces interests.

Application of Geneva Conventions to Prisoners of War

The application of the Geneva Conventions of 12 August 1949 to captives in the Vietnam War was complicated by the perplexing legal nature of that conflict. In the classic sense, the conventions presume a declared state of war between two or more sovereign states, each fielding a regular army fighting on a readily identifiable battlefront. Virtually none of these classic conditions existed in the Vietnam conflict.

The United States recognized the sovereignty of South Vietnam, as did some eighty-seven other nations. Indeed, South Vietnam is a member of several special committees of the United Nations, and would have been a member of the United Nations itself had it not been for a Soviet veto in 1957.

The United States has not accorded full diplomatic recognition to North Vietnam, as have some twenty-seven other states. However, the United States has acknowledged North Vietnam's agreement to the Geneva Conventions of 1949, and it has treated North Vietnam as a separate state in the context of Article 12 of the Geneva Prisoner of War Conventions.

Throughout the course of the war the government of North Vietnam was most reluctant to admit to any involvement in South Vietnam, constantly maintaining all of Vietnam to be one country and the Saigon government a puppet regime, beleaguered by indigenous patriots who wished to restore the country to the people. The Republic of Vietnam, while asserting its separation from North Vietnam and its existence as a sovereign state, steadfastly refused to accord to

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the Viet Cong any degree of legitimacy, either as a separate political entity or as an agent of Hanoi.

Neither the United States nor North Vietnam issued a declaration of war. South Vietnam declared a state of emergency in 1964 and a state of war in 1965, actions taken primarily to increase its internal powers.

The types of combat forces in the war ranged the full spectrum from the regular divisions of the United States, South Vietnam, and North Vietnam to the Regional Forces and Popular Forces of the government of South Vietnam, the Main Force and Local Force battalions of the Viet Cong, the Civilian Irregular Defense Group of South Vietnam, and the secret self-defense groups of the Viet Cong. The battlefield was nowhere and everywhere, with no identifiable front lines, and no safe rear areas. Fighting occurred over the length and breadth of South Vietnam, on the seas, into Laos and Cambodia, and in the air over North Vietnam. It involved combatants and civilians from a dozen different nations. Politically, militarily, and in terms of international law, the Vietnam conflict posed problems of deep complexity. The inherent difficulty of attempting to apply traditional principles of international law to such a legally confusing conflict is well illustrated by the issue of prisoners of war.

As combat units of the United States became heavily engaged in the war in 1965, the question arose as to the proper disposition for battlefield captives and others detained by U.S. units during military operations. In 1965 the United States determined to win over to the Vietnamese armed forces all individuals captured by U.S. forces. Such an arrangement is permissible under the Geneva Prisoner of War Conventions, which provide for the capturing power to release prisoners to a detaining power as long as both the capturing and the detaining powers fulfill certain obligations concerning the welfare of the prisoners.

While the legal basis for a transfer of prisoners was sound, carrying out the transfer was beset by serious legal and practical difficulties. The Republic of Vietnam regarded the Viet Cong as criminals who violated the security laws of South Vietnam and who consequently were subject to trial for their crimes. As indigenous offenders, the Viet Cong did not technically merit prisoner of war status, although they were entitled to humane treatment under Article 3, Geneva Prisoner of War Conventions. Under Article 12, the United States retained responsibility for treatment of its captives in accordance with the Geneva Conventions even after transfer of the captives to the South Vietnamese. At the same time, the United States was concerned that Americans held captive in North and South Vietnam receive humane treatment and be accorded the full benefits and protection of prisoners of war. In the south, where the government of

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South Vietnam had tried and publicly executed some Viet Cong agents, there had been retributory executions of Americans by the Viet Cong. In the north, the Hanoi government stated that it would treat captured American flyers humanely, but it would not accord them prisoner of war status as they were "pirates" engaged in unprovoked attacks on North Vietnam. Hanoi repeatedly threatened to try United States pilots in accordance with Vietnamese laws, but never carried out this threat. U.S. policy was for the United States to do all in its power to alleviate the plight of American prisoners. It was expected that efforts by the United States to ensure humane treatment for Viet Cong and North Vietnamese Army captives would bring reciprocal benefits for American captives.

Early in the war there had been some question in the United States command as to whether the struggle against the Viet Cong constituted an armed international conflict as contemplated in Article 2, Geneva Prisoner of War Conventions, or a conflict not of international nature, to which Article 3 would be applicable. With the infusion of large numbers of United States and North Vietnamese combat units and the coming of the Korean, Australian, Thai, and New Zealand contingents of the Free World Military Assistance Forces, any practical doubts as to the international nature of the conflict were resolved. Although North Vietnam made a strong argument that the conflict in Vietnam was essentially an internal domestic struggle, the official position of the United States, stated as early as 1965, and repeated consistently thereafter, was that the hostilities constituted an armed international conflict, that North Vietnam was a belligerent, that the Viet Cong were agents of the government of North Vietnam, and that the Geneva Conventions applied in full. This view was urged upon the government of South Vietnam, which acceded reluctantly, but subsequently came out in full support of the conventions.

A major practical difficulty in implementing a prisoner of war program was that the Vietnamese government had no facilities suitable for the confinement and care of prisoners of war. In December 1964, the Vietnamese Director of Military justice took the MACV Staff judge Advocate on a tour of courts and confinement facilities throughout South Vietnam. As a result of his observations during that tour the Staff judge Advocate prepared a study pointing out some of the serious problems that existed in handling Viet Cong suspects and prisoners. These problems were quickly becoming joint U.S.-Vietnamese problems, because combat captives and Viet Cong suspects picked up by U.S. forces, Free World Military Assistance Forces, and Vietnamese forces were all delivered to Vietnamese authorities for interrogation, processing, and possible confinement.

During 1965 the number of political prisoners in confinement

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rose almost 100 percent, from 9,895 in January to 18,786 in December. These were primarily members of the Viet Cong, but also included some Viet Cong sympathizers, supporters, or collaborators. A total of 24,878 of these political prisoners were confined during the year (compared with 14,029 in 1964), while 15,987 such prisoners were released during the same period. The total rated capacity of all South Vietnam civilian jails and prisons was about 21,400. Few political prisoners, terrorists, or prisoners of war were customarily held in Vietnamese military prisons, which were used primarily as pretrial detention centers for Army deserters and other military offenders. After June 1965 the prison population steadily rose until by early 1966 there was no space for more prisoners in the existing jails and prisons. The practical effect of this was that as new prisoners were confined others had to be discharged. Average time of confinement for all prisoners, including Viet Cong, was about six months. Thus a few months after apprehension a Viet Cong member could be, and usually was, back in operation, while had he been a prisoner of war he would have been restrained "for the duration."

Lack of physical space was but one of many serious problems. An important factor in the operations of the jails and prisons was simply the cost of feeding the prisoners. At an average allowance of 14 piasters (100) per prisoner per day, the monthly cost by early 1966 ran to about ten and a half million piasters a month. Confinement authorities complained of chronic difficulty in feeding the large number of prisoners they-were. required to care for, and the jailer in one province was understandably reluctant to accept and feed prisoners from other provinces. Again, the result was that many prisoners were released after a short time simply because they could not be fed.

Confinement facilities were also handicapped by a severe shortage of qualified administrative and security officers. As an illustration, in 1965 at the Tam Hiep prison there were 30 guards for all shifts and 50 other personnel to control and train almost 1,000 prisoners. In 1966 at Nha Trang Province jail there were 26 guards and 1 instructor for about 440 prisoners. The situation was further aggravated by the frequent loss of guards, jailers, wardens, and instructors who were drafted into the military. This manpower shortage not only thwarted any meaningful classification and rehabilitation program for the prisoners, but also seriously threatened the security of jails and prisons, which were prime Viet Cong targets as long as they held Viet Cong prisoners.

In terms of the war effort, probably the most serious shortcoming of the prisons was the fact that common criminals, Viet Cong suspects, prisoners of war, and even juvenile delinquents were all mixed together. This enabled Viet Cong agents to foment resentment against the government of the Republic of Vietnam and to proselitize their

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fellow prisoners; it also increased a Viet Cong's chance for early release as part of the normal inflow-outflow of the prison population. The following figures show the population of Vietnamese jails and prisons that housed political prisoners as of the end of 1965. The figures do not include military prisons, which at that time also held some Viet Cong who were taken in combat and more closely resembled the classical prisoners of war.

Three possible ways of alleviating the overcrowded conditions in the prisons, brought on by the escalation of the war, were suggested: a prisoner of war camp construction program; a broadening of the prisoner of war concept beyond the terms of Article 4 of the Geneva Prisoner of War Conventions so as to include more Viet Cong in the prisoner of war category; and the establishment by the Vietnamese government of re-education centers to separate and rehabilitate suspects who either did not qualify for prisoner of war status or were to be brought before a criminal court as civilian defendants.

In August 1965 the U.S. government and the Vietnamese government notified the International Committee of the Red Cross that their armed forces were abiding by and would continue to abide by the Geneva Conventions. In September a Vietnamese-U.S. joint military committee was appointed to work out details on the application of the Geneva Prisoner of War Conventions in Vietnam. By October the committee had issued three-by-five-inch cards and other training aids for the troops, explaining prisoner of war treatment under the Geneva Conventions. A program of instruction for all U.S. and Vietnamese military units was established to teach the basic rules to be applied in the handling of prisoners. U.S. units and advisers were instructed to identify and record all captives turned over to the Vietnamese, specifying to whom the captives were transferred. Vietnamese military legal advisers were briefed by the MACV Staff judge Advocate on the legal aspects of applying the conventions. The Commander, U.S. Military Assistance Command, Vietnam, established a policy that all suspected Viet Cong captives taken by U.S. forces were to be treated initially as prisoners of war by the capturing unit. Capturing units were responsible for all of the enemy taken prisoner during the course of operations, from the time of their capture to the time the prisoners were released to Vietnamese authorities. Captives were to be interrogated and detained by U.S. forces

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only long enough to obtain from them any legitimate tactical intelligence they possessed. Captives were then to be sent to a combined U.S.-Vietnamese Army interrogation center for classification and further processing. Prisoners of war were sent to prisoner of war camps; innocent civilians were released and returned to the place of capture, if possible; civilian defendants were turned over to Vietnamese civil authorities or the province security committee; former Viet Cong seeking amnesty under the Chieu Hoi (Open Arms) program were sent to the Chieu Hoi center. Chieu Hoi was an amnesty program established by the Vietnamese government to encourage Viet Cong to return to government control.

The classification of Viet Cong combatants and Viet Cong suspects posed an interesting legal problem. Because it believed the Viet Cong were traitors and criminals, the Vietnam government was reluctant to accord prisoner of war status to Viet Cong captives. Furthermore it was certainly arguable that many Viet Cong did not meet the criteria of guerrillas entitled to prisoner of war status under Article 4, Geneva Prisoner of War Conventions. However, civil incarceration and criminal trial of the great number of Viet Cong was too much for the civil resources at hand. In addition, Article 22 prohibited the mingling of civil defendants with prisoners of war. By broadly construing Article 4, so as to accord full prisoner of war status to Viet Cong Main Force and Local Force troops, as well as regular North Vietnamese Army troops, any Viet Cong taken in combat would be detained for a prisoner of war camp rather than a civilian jail. The MACV policy was that all combatants captured during military operations were to be accorded prisoner of war status, irrespective of the type of unit to which they belonged. Terrorists, spies, and saboteurs were excluded from consideration as prisoners of war. Suspected Viet Cong captured under circumstances not warranting their treatment as prisoners of war were handled as civilian defendants. MACV policy concerning the classification and treatment of prisoners of war was first codified in MACV Directive 381-11, dated 5 March 1966. (See Appendix D.)

The delegate of the International Committee of the Red Cross speaking in Saigon had the following to say about the MACV policy concerning treatment of Viet Cong as prisoners of war:

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Establishing a Prisoner of War Program

On 27 November 1965 the joint Military Committee proposed a workable plan for application of the Geneva Prisoner of War Conventions by the U.S., Vietnamese, and Free World forces. The plan called for the construction of five prisoner of war camps, one in each corps tactical zone and one in the Capital Military Region (Saigon), each having an initial capacity of 1,000 prisoners. Each camp would be staffed by Vietnamese military police, with U.S. military police prisoner of war advisers also assigned to each stockade. The plan was approved in December 1965-a temporary prisoner of war camp was to be established at Bien Hoa in early January 1966, with permanent prisoner of war camps to follow. Prisoner of war camp construction continued to receive priority command attention in 1966. The Bien Hoa camp in III Corps was opened in May, the Pleiku camp in II Corps was completed in August, and the Da Nang camp in I Corps was opened in November. Late in the year work was begun on the Can Tho camp in IV Corps.

The objectives for the prisoner of war program for 1967 were ambitious: to identify and transfer prisoners of war in civilian jails and prisons to Vietnamese Army prisoner of war camps; to establish a program of repatriation of prisoners of war; to promulgate the provisions of the Geneva Conventions of 1949; to establish effective prisoner of war accountability procedures and maintain records for the identification and handling of prisoners of war; to construct additional prisoner of war camps as required; to establish prisoner of war labor and educational programs; to adhere to the Geneva Prisoner of War Conventions as closely as possible with respect to mail, medical attention, Red Cross visits, visiting privileges, and health and welfare.

By the end of 1967 the prisoner of war camp capacity had increased from 3,000 to 13,000. In March 1968 a camp for female prisoners of war was established at Qui Nhon, and in April steps were taken to concentrate all Viet Cong prisoners of war under age eighteen at the Bien Hoa camp, where they received special rehabilitation, education, and vocational training. A central prisoner of war camp was constructed at Phu Quoc Island, off the coast of Cambodia, and by the end of 1968 the prisoner of war camps could house a population of 21,000 normally, and a total of 32,000 on an emergency or short-range basis. All gradually expanded until by 11 December 1971 the Vietnamese government held 35,665 prisoners of war in six camps. Of these, 13,365 had been captured by U.S. forces.

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Inspections by the International Committee of the Red Cross

Construction of the prisoner camps was a major feat in itself, but the U.S. and Vietnamese governments worked hard in many other areas to fulfill their responsibilities under the Geneva Conventions. At first the Vietnam government was reluctant to co-operate with the International Committee of the Red Cross with respect to inspections and furnishing lists of prisoners. Furthermore, the Democratic Republic of North Vietnam refused to allow the Red Cross any access to their prisoners and the South Vietnamese felt there should be reciprocity. In South Vietnam confinement facilities were the responsibility of the Minister of the Interior, and at the urging of the United States he agreed to allow more visits by Red Cross representatives to Vietnamese civil prisons and re-education centers where prisoners of war were being detained until the completion of the camps. In early 1966, as a result of U.S. efforts, representatives of the International Committee of the Red Cross visited prisons at Tam Hiep, Con Son, and Da Nang, and the prisoner of war camp under construction at Bien Hoa. After it was completed, the Bien Hoa camp was again visited by Red Cross representatives in August 1966. The representatives were favorably impressed with the camp and agreed to provide health and welfare items on their next visit. In October 1966 the committee's representatives visited detention facilities in Da Nang and Pleiku, and again they were favorably impressed. Another Red Cross representative, accompanied by a Saigon delegation, made an extensive tour from 29 November until 8 December 1966 of South Vietnamese, Free World, and U.S. prisoner of war facilities throughout the Republic of Vietnam. The representative visited Vietnamese prisoner of war camps in I, II, and III Corps Tactical Zones; two Vietnamese Army hospitals; the Australian prisoner of war collecting point and field hospital; the Republic of Korea Capitol Division collecting point and hospital; the four U.S. collecting points and six U.S. hospitals; the III Marine Amphibious Force special detention facility at Da Nang; and the Philippine hospital at Tay Ninh. In 1967 members of the international press accompanied the representatives on their visits to two camps.

Despite the many problems they encountered, the record is clear that the United States and Vietnam made a vigorous effort to adhere to the exacting standards of the Geneva Prisoner of War Conventions. Within the Military Assistance Command, Vietnam, the provost marshal was responsible for advising the Vietnamese prisoner of war camps, ensuring that they were operated in conformity with Geneva requirements, and acting as the point of contact for representatives of the International Committee of the Red Cross. MACV policy and procedures pertaining to Red Cross inspections of prisoner of war

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INTERNATIONAL COMMITTEE OF THE RED CROSS VISITS VIETNAMESE ARMY PRISONER OF WAR CAMP AT LONG BINH

camps were set forth in MACV Directive 190-6. (See Appendix E.)

In August 1966 a committee began to screen prisoners who had been placed in civilian jails before the construction of the prisoner of war camps. The committee, which was composed of representatives from MACV directorates of personnel, intelligence, and logistics and their Vietnamese counterparts, screened all four national prisons and 37 provincial jails. The committee identified 1,202 men as prisoners of war; all but 27 of these had been transferred to prisoner of war camps by the end of 1967, as the screening process continued.

Several programs to improve the living standards of prisoners of war were approved in 1967, among them a pilot educational program to teach reading and writing. Mailing privileges were granted the prisoners and visitation rights given the families of Viet Cong prisoners of war. Health and comfort items were issued free, and a dispensary with a medical doctor and staff was established at each camp. In August 1967 the MACV directorate of personnel established a Prisoner of. War Work Advisory Detachment to encourage and assist work programs at the prisoner of war camps. In December 1967, the Vietnamese government approved a labor program whereby prisoners of war would work and be paid 8 piasters per day. This program, which was in accordance with recommendations of the Geneva Prisoner of War Conventions, became effective 1 April 1968.

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Repatriation Efforts

Throughout the course of the war the allies maintained a major and sustained effort to promote a reciprocal program of prisoner repatriation. On 3 February 1967, twenty-eight North Vietnamese prisoners of war were released at the Ben Hai River to return to North Vietnam through the demilitarized zone. On 11 March 1967, two Viet Cong prisoners of war captured by U.S. forces were released in response to the release of two U.S. prisoners of war. On 20 March two North Vietnamese PT boat crewmen were repatriated through Cambodia; on 22 March the South Vietnamese released twenty-two Viet Cong prisoners of war and on 23 June 1967 three Viet Cong captured by U.S. forces were released at a jungle rendezvous in exchange for the release of two U.S. prisoners and one Filipino captured by the Viet Cong. In April 1967 a screening program was begun to identify prisoners of war who, because of illness, were qualified for release under Articles 109 and 110 of the Geneva Conventions. The screening team included two Swiss physicians under contract to the International Committee of the Red Cross (ICRC). Of the 286 prisoners screened, 135 qualified medically for repatriation. Of those qualified for repatriation, only 39 wished to return to North Vietnam. To this group was added a female prisoner of war who had given birth in a South Vietnamese hospital. The 40 prisoners and the infant were repatriated to North Vietnam through the demilitarized zone on 12 June 1967; on the same day four Viet Cong-U.S. prisoners were released in South Vietnam. During 1967 a total of 139 prisoners of war were released in South Vietnam or repatriated to North Vietnam.

In 1968 the government of South Vietnam, with U.S. support, sought to repatriate 40 sick and wounded prisoners of war to North Vietnam under Articles 109 and 110 of the Geneva Conventions. The prisoners were examined by a Red Cross physician and had expressed a desire to return to the north. The Vietnamese made the repatriation offer through the Red Cross, which sent a telegram to the North Vietnamese Minister of Foreign Affairs, proposing repatriation in late January or early February. When no reply was received, the South Vietnamese asked the International Committee of the Red Cross to renew its efforts in May, but there was still no reply by the end of the year. Efforts by the South Vietnamese and the Red Cross to repatriate these 40 prisoners of war, and 24 civilians as well, continued through 1969, but to no avail. At the Paris Peace Talks of 13 November 1969 the South Vietnamese proposed returning 62 sick and wounded prisoners of war to North Vietnam. The offer was declined. It was the position of the South Vietnamese that if Geneva Prisoner of War Articles 109 and 110 required the capturing state to

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repatriate the sick and wounded, these articles also required the home state of the prisoners of war to accept those prisoners who wished repatriation. The South Vietnamese even proposed transporting sick and wounded prisoners of war by sea to any port or point on the coast of North Vietnam, but received no response to this offer.

During 1969 the Republic of Vietnam did release 191 Viet Cong prisoners of war in South Vietnam for reasons of youth, age, or pregnancy under Article 21 of the Geneva Prisoner of War Conventions. Also, some prisoners of war who were not deemed to be "hard-core" Viet Cong were transferred to the favored Hoi Chanh status, under the Chieu Hoi amnesty program. These transfers particularly applied to youths seventeen and under, Efforts to repatriate prisoners of war to North Vietnam and to secure the release of U.S. and South Vietnamese prisoners of war continued through 1970, but met with little success. In January 1971 the Republic of Vietnam offered to repatriate all sick and wounded prisoners to North Vietnam. This offer was ignored. On 29 April 1971 the Vietnam government requested North Vietnam to conclude a bilateral agreement for the repatriation or internment in a neutral country of those prisoners of war who had been held captive for a long period of time. This offer was ignored, but in May 1971 North Vietnam finally agreed to accept 570 sick and wounded prisoners. The International Committee of the Red Cross interviewed 660 sick and wounded prisoners, of whom only 13 wished to be repatriated. As arranged, these thirteen were taken by sea to a point off the coast of North Vietnam; but before they were released North Vietnam canceled the agreement to accept the prisoners and they were returned to Da Nang. This ended repatriations for the remainder of 1971.

Throughout the war the United States had urged the South Vietnamese to release qualified prisoners of war, seeking possible reciprocal action by North Vietnam. The South Vietnamese had been understandably reluctant to release unilaterally large numbers of able-bodied prisoners of war, but after the national election of October 1970, the Republic of Vietnam transferred 2,300 Viet Cong prisoners who pledged loyalty to the government to Chieu Hoi centers and released 623 outright. Through I March 1972, South Vietnam released a total of 5,960 prisoners of war. Of this total 188 were repatriated to North Vietnam, 900 were released in South Vietnam, 1,784 were reclassified, and 3,084 were accepted into the Chieu Hoi program. In contrast, by the end of 1971 the Communists had released 53 American prisoners of war; they had allowed no visits by the International Committee of the Red Cross to Communist prisoner of war camps in North Vietnam or South Vietnam; and they had made no effort to repatriate sick and wounded prisoners. Mailing privileges for U.S. prisoners held in North Vietnam had been al-

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lowed sporadically and in an arbitrary manner. Finally, the Communists had refused to furnish a comprehensive and accurate list of the prisoners they held. Although both the Viet Cong and North Vietnamese consistently maintained that their prisoners received humane treatment, their efforts to comply with the provisions of the Geneva Prisoner of War Conventions were negligible.

MACV Policy on Prevention and Investigation of War Crimes

The first MACV directive dealing specifically with war crimes was Directive 20-4, dated 20 April 1965. Its purpose was to designate the agencies responsible for conducting investigations of alleged or apparent violations of the Geneva Conventions inflicted by hostile forces upon U.S. military or civilian personnel assigned to Vietnam. The directive defined war crimes as violations of the law of war, and stated that "grave breaches" of the Geneva Conventions, such as willful killing, torture, or inhuman treatment of persons protected by the conventions constituted war crimes. The directive also addressed itself to "prohibited acts" under common Article 3 of the Geneva Conventions, defining them as those acts which "would be war crimes but for the fact the existing conflict is not yet deemed to be international in character." In retrospect, this early directive is interesting in two respects. The directive concerned itself only with those violations inflicted by hostile forces upon U.S. citizens, and it stated that the fighting in Vietnam was not yet an armed international conflict in the legal sense.

The reasons for drafting the directive in this manner were immediate and practical. Prior to the introduction of ground combat units in Vietnam in March 1965, U.S. troops in Vietnam served in an advisory capacity; U.S. units had not planned or executed combat operations or taken prisoners, and there were no indications that U.S. advisers were violating the Geneva Conventions. To the contrary, the only atrocities known to the U.S. command at the time were those committed against U.S. advisers by the Communists. MACV Directive 204 was promulgated to ensure appropriate investigation of such atrocities. (See Appendix F.) As to the international nature of the conflict, the principal enemy of the Republic of Vietnam at the time was the Viet Cong, whose members the republic regarded as domestic criminals. The government of North Vietnam did not admit that its troops were in the south, or that it was in any way sponsoring the Viet Cong, whom it considered local patriots struggling against dictatorial regime.

MACV Directive 20-4 was updated on 25 March 1966 with several significant changes. The scope of the directive was broadened to include war crimes committed by U.S. personnel as well as those against U.S. personnel. In consonance with the official U.S. position

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that the struggle in Vietnam by then constituted an armed international conflict, no mention was made of a lesser category of "prohibited acts," as defined in the earlier directive, and eighteen examples of acts which constituted war crimes were given.

The directive clearly stated that the willful killing, torture, or inhuman treatment of, or willfully causing great suffering or serious injury to the body or health of persons taking no active part in the hostilities, including members of the armed forces who had laid down their arms or who were not combatants because of sickness, wounds, or any other cause, was a war crime. Other acts specified as war crimes were maltreatment of dead bodies, firing on localities which were undefended and without military significance, pillage or purposeless destruction, killing without trial of spies or other persons who committed hostile acts, and compelling prisoners of war or civilians to perform labor prohibited by the Geneva Conventions.

The directive went on to fix responsibility on every member of the U.S. armed forces for reporting incidents which could constitute war crimes. It stated that "It is the responsibility of all military personnel having knowledge or receiving a report of an incident or of an act thought to be a war crime to make such incident known to his commanding officer as soon as practicable. Personnel performing investigative, intelligence, police, photographic, grave registration or medical functions, as well as those in contact with the enemy will, in the normal course of their duties, make every effort to detect the commission of war crimes and will report the essential facts to their commanding officer."

As was the-practice for all MACV directives, MACV Directive 20-4 was updated periodically. It was also supplemented by a number of other directives pertaining to the Geneva Conventions, war crimes, and prisoners of war. MACV Directive 27-5, Legal Services: War Crimes, and Other Prohibited Acts, dated 2 November 1967, listed acts which constituted war crimes and stated, "Commission of any act, enumerated in paragraph 4, above, or constituting a war crime is prohibited. Violation of this directive will be punishable in accordance with the provisions of the Uniform Code of Military justice." Other regulations pertinent to war crimes and prisoners of war were MACV Directive 190-3, Military Police: Enemy Prisoners of War, 6 April 1967; MACV Directive 20-5, Inspections and Investigations: Prisoners of War-Determination of Eligibility, 17 May 1966; MACV Directive 381-46, Military Intelligence: Combined Screening of Detainees, 27 December 1967; MACV Directive 335-1, Reports of Serious Crimes or Other Incidents, 5 January 1966; and Geneva Conventions Checksheet sent to all judge advocates in Vietnam. (See Appendix G.)

Throughout 1965, 1966, and 1967 the most grievous breaches of

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the Geneva Conventions continued to be those committed by the Communists, and there were several cases where U.S. troops were murdered and their bodies mutilated by the Viet Cong or North Vietnamese. The Viet Cong policy of kidnapping civilians, assassinating public officials, and terrorizing entire populations continued. Communist tactics against the Montagnards, indigenous mountain tribes, were particularly vicious.

On the American side, the sudden massive U.S. troop buildup in Vietnam that began in 1965 created many problems for the U.S. command, and incidents of war crimes by U.S. troops began to be reported. For example, during the period between 1 January 1965 and 31 August 1973, there were 241 cases (excluding My Lai) which involved allegations of war crimes against United States Army troops. One hundred and sixty of these cases, upon investigation, were determined to be unsubstantiated. Substantiated allegations of war crimes Violations committed in Vietnam by personnel subject to the Uniform Code of Military justice were prosecuted under the provisions of the code. From January 1965 through August 1973, 36 cases involving war crimes allegations against Army personnel were tried by court-martial. Sixteen cases involving thirty men resulted in acquittal or dismissal after arraignment. Twenty cases involving thirty-one Army servicemen resulted in conviction. By the time the U.S. troop buildup was in full swing, various MACV directives contained a sufficient body of law clearly to define, prohibit, and provide for the investigation of war crimes. The constant rotation of troops created a continual need to get the information to the troops.

Troop Education

Long before U.S. troop units were engaged in combat in Vietnam, the Army had included in its training programs material designed to inculcate in the troops a knowledge of their rights and obligations under the Geneva Conventions of 1949. Army Regulation 350-216, dated 19 December 1965, placed upon the Commanding General, Continental Army Command, the responsibility of incorporating within appropriate training programs periods of instruction designed to insure that all members of the Army were familiar with the 1949 Geneva Conventions. The soldier's first introduction to the Geneva Conventions was during basic training, where he received two hours of formal instruction, followed by a test, the results of which were noted on his record. During advanced individual training, instruction in the Geneva Conventions was integrated with other subjects and principles were applied during field exercises. Annex B of Continental Army Command Regulation 350-11 dated 15 June 1965, required commanders to take continuing action to incorporate instruction on

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the Geneva Conventions in their training programs. Training programs pertaining to the Geneva Conventions were the subject of a comprehensive review, and several steps were taken to increase and improve instruction by the use of training films and combined judge advocate-combat arms officer training teams.

In Vietnam, Geneva Conventions training was intensified and became more formalized as troop strength increased. As early as August 1965, the Commander, U.S. Military Assistance Command, Vietnam, directed that the educational program for all U.S. military personnel in South Vietnam include the issuance of a three-by-five-inch card containing the basic requirements of the Geneva Conventions pertaining to the treatment of prisoners of war. By October 1965 cards had been prepared in English for U.S. personnel and in Vietnamese for Vietnamese armed forces personnel. U.S. units were instructed in the basic rules of handling prisoners and MACV judge advocate personnel briefed Vietnamese military legal personnel on the application of the conventions. Troops arriving in Vietnam received Geneva Conventions orientation during their initial in-processing period, where they also received a copy of the card, "The Enemy in Your Hands." (See Appendix H.)

The Commander, U.S. Military Assistance Command, Vietnam, continuously and emphatically stressed the importance of all troops acting in accordance with the laws of war. In November 1965, he discussed with the chief of staff of the Vietnamese joint General Staff the importance of adhering to the Geneva Conventions pertaining to the treatment of prisoners of war. The commander conferred periodically with Vietnamese officials on this subject and on the importance of proper deportment by all troops in general. The results of this concern became noticeable in several areas, one noteworthy example being the promulgation in March 1967 by the Vietnamese government of a National Decree stating the provisions of the four Geneva Conventions of 12 August 1949. In August 1966 the Commander, U.S. Military Assistance Command, Vietnam, personally wrote separate letters to all of his major commanders on this same theme, stating in part, "Active command interest in this program, in coordination with Republic of Vietnam Armed Forces authorities, which assures that prisoners of war and combat captives are properly processed and handled in accordance with International Law is vital."

This theme was repeated over and over again. A MACV command information bulletin, titled Application of the Geneva Prisoner of War Conventions in Vietnam, dated October 1966, instructed the U.S. troops that the Geneva Prisoner of War Conventions applied to Vietnam even though there was no formal declaration of war by the United States. Moreover, the United States was applying not

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only the letter of the law, but also the spirit of the Geneva Conventions, which were designed to protect the individual who could no longer protect himself. Prisoner of war treatment was to be extended to all Viet Cong and to all members of regular North Vietnamese units, whether captured in combat or not, as long as they were not criminals, spies, saboteurs, or terrorists. Criminals, spies, saboteurs, and terrorists were to be given humane treatment and turned over to the Vietnamese government for trial.

The bulletin explained the steps to be taken immediately upon capture of enemy personnel, and stressed that prisoners must be protected from torture, humiliation, degrading treatment, reprisals, or any act of violence. The categories of detained persons (innocent civilians, prisoners of war, returnees, and civil defendants) were listed, with a reference to the MACV directive which outlined processing procedures for each type of detainee. The bulletin went on to explain the importance of observing humanitarian principles in waging war, giving specific reasons why it was in the interest of the U.S. for American troops to treat prisoners humanely. In conclusion, the bulletin urged the troops to follow the rules on the card "The Enemy in Your Hands." In addition, through U.S. judge advocate resources in Vietnam the MACV Staff judge Advocate's office monitored the troop education program and disciplinary aspects of Geneva Conventions violations.

These efforts on the part of the U.S. command were commended by the Red Cross in a letter of 5 January 1968 to W. Averell Harriman, U.S. Ambassador at Large. Samuel A. Gonard, President of the International Committee of the Red Cross, wrote: "We are convinced that in the context of the war in Vietnam the U.S. Forces are devoting a major effort to the spread of knowledge of the Geneva Conventions."

War Crimes Investigation

For the most part, war crimes committed by U.S. forces in Vietnam fell into two principal categories: willful murder or assault of noncombatants; and mutilation and maltreatment of dead bodies. Serious incidents involving assault, rape, and murder that were not directly connected with military operations in the field were not characterized as war crimes but were reported through military police channels as violations of the Uniform Code of Military justice.

Acts constituting war crimes were also offenses against the Uniform Code of Military justice, and as such were investigated by agents of the Criminal Investigation Division. Pertinent MACV directives required a concurrent investigation of war crimes by an investigating officer who was concerned not only with the details

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of the crime, such as the persons involved and where, when, and what occurred, but also with the broader question of how and why the incident took place. The scope of this investigation included an examination of the established rules of engagement and command and control procedures that were in effect at the time, and how these procedures were implemented. The question to be determined was whether there was any failure of command responsibility.

When an investigation was completed, the report was delivered to the general court-martial convening authority, who had appointed the investigating officer. The appointing authority reviewed the report and approved or disapproved it. If approved, the report of the investigation with the appointing authority's indorsement was forwarded through channels to the Commander, U.S. Military Assistance Command, Vietnam. At MACV headquarters it was circulated to appropriate staff offices, including the Staff judge Advocate, for review. The report could be returned for further action or approved by the MACV commander or chief of staff. After final review, a war crimes investigation report concerning any person was forwarded to The judge Advocate General, Department of the Army.

The Commander, U.S. Military Assistance Command, Vietnam, had considered establishing special war crimes teams and having the Army maintain centralized files on war crimes for all services, but this was not done because the laws prohibiting war crimes and the administrative and judicial machinery for investigating and punishing such offenses were judged adequate. Murder, rape, assault, arson, pillage, and larceny were all punishable as offenses against various sections of the Uniform Code of Military justice, and there were many directives from Military Assistance Command, U.S. Army, Vietnam, and units specifying and prohibiting various acts in the war crimes category. Representatives of the military police, Criminal Investigation Division, Inspector General, and judge Advocate had experience in conducting investigations; they, as well as the commanders, and, indeed, all military personnel, had the responsibility for reporting possible violations of the laws of war so that an appropriate investigation could be conducted as specified by regulation.

Despite laws and preventive education, war crimes were committed. Most were isolated incidents, offenses committed by individual U.S. soldiers or small groups. Investigations were conducted, and the records of courts-martial proceedings contain the cases of individuals who were tried and punished. My Lai, the most notorious offense committed by U.S. troops in combat in Vietnam, was not the result of inadequate laws or lack of command emphasis on those laws; it was the failure of unit leaders to enforce the clear

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and well-known procedures set forth in applicable regulations. It is tragically true that troops on both sides committed atrocities; but had it not been for the genuine concern of commanders at the highest levels that U.S., Vietnamese, and allied forces conduct themselves humanely and in accordance with the laws of war, the Vietnam War probably would have been far more brutal.

It was evident that international law was inadequate to protect victims in wars of insurgency and counterinsurgency, civil war, and undeclared war. The efforts of the international community to codify the humanitarian law of war in 1949 drew upon examples from World War II which simply did not fit in Vietnam. The law left much room for expediency, political manipulation, and propaganda. The hazy line between civilian and combatant became even vaguer in Vietnam.

There was an absence of effective power to insure compliance by both sides with the Geneva Conventions or to give reassurance of at least minimum protection for victims of the armed conflict. The inability of the International Committee of the Red Cross to function effectively on behalf of U.S., South Vietnamese, or other Free World forces was particularly tragic. The law of war was not completely ineffective; certainly many combatants and noncombatants survived the war because of the application of the law of war. The U.S. military lawyers' role in applying the known and developed humanitarian rules for armed conflict brought credit to the legal profession and to the U.S. Armed Forces.

page updated 30 May 2001

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