Nuremberg and Vietnam: An American Tragedy
Since last year many people have been taking more seriously the claim that the precedents of the Nuremberg trials are somehow relevant to what the United States has done and is doing in Vietnam. The shift in thought and attitude is striking. Only a few years ago Dr. Howard Levy was regarded by many people as something of a lunatic for insisting that his defense against the charge of refusing to obey orders was based on Nuremberg. Even today many—perhaps even most—critics of the war reject as misguided the suggestion that the senior military and civilian leaders of the United States are war criminals within the terms and conditions of Nuremberg. But they no longer regard the accusation as absurd or deranged. The relevance of the Nuremberg trials to Vietnam is now at least an open question.
One book that has certainly helped to make a concern for Nuremberg respectable is Telford Taylor’s Nuremberg and Vietnam. Taylor, a law professor at Columbia University and a former prosecutor at Nuremberg, has impeccable credentials. Those whose opposition to the war has rested on the grounds that it is a horrendous moral evil, a criminal undertaking of the most serious sort, will find it tempting to embrace Taylor’s book as valuable and important just because it has made discussions of the applicability of Nuremberg to Vietnam legitimate. Now that Lieutenant Calley’s supporters claim he should be given a medal for having murdered Vietnamese babies, it is especially tempting for many people to praise Taylor’s book for its conclusion that the Nuremberg decisions, when properly understood, are applicable to the United States. Nonetheless, the temptation must be resisted. Created in this way, concern for such an important subject can cause damage far outweighing the possible benefits of respectability.
It seems likely that thinking about Nuremberg has been and will be much influenced by the way in which Taylor has defined the issues. If so, his book can be dangerous, for he provides seriously inadequate and defective perspectives from which to assess the behavior of the United States. Although Taylor writes about the applicability of Nuremberg to Vietnam, the application is an extremely restrictive and guarded one. The danger is all the greater, therefore, because of the deceptive quality of Taylor’s ostensibly rigorous application of Nuremberg to the war in Indochina.
Taylor places two enormous restrictions upon the potential scope of Nuremberg. Like many people, and especially like almost all lawyers, he is most at ease when reasonably precise, reasonably well-established rules and conventions happen to be available. Thus he believes Nuremberg is applicable to Vietnam primarily with respect to war crimes—violations of the so-called laws of war—and not with respect to what was said and done at Nuremberg about crimes against peace, e.g., waging aggressive war, or about crimes against humanity, e.g., genocide. Secondly, Taylor embraces a very limited and morally unattractive notion of what constitutes a war crime. By the time he …
Nuremberg and Vietnam August 12, 1971