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 is through, Nuremberg’s applicability to Vietnam does not cut very deep or matter very much.
Taylor rejects the notion that the senior military and civilian leaders of the United States are guilty of—or even chargeable with—the commission of crimes against peace and humanity. He also dismisses summarily the notion that ordinary soldiers are liable under Nuremberg as accomplices by virtue of their participation in the Vietnam war. He never even discusses the possible liability of, say, civilian industrialists who manufacture weapons of mass destruction. On the matters he does discuss, many of Taylor’s arguments do not seem to me sound. All of them are surely worth careful discussion.
As I have said, however, Taylor’s dominant concern is with war crimes. For him, the part of Nuremberg that is applicable to Vietnam is that which holds accountable soldiers who violate the laws of war, e.g., Lieutenant Calley, and the military superiors who order the commission of war crimes or who knowingly fail to punish the commission of war crimes by their subordinates. In what follows I shall restrict myself to this dominant concern (which is a very common one) and try to explain what it is that is unsatisfactory about Taylor’s approach.
By the laws of war Taylor means such rules as those in the Geneva, Hague, and other treaties against the wanton killing of civilians, the mistreatment of prisoners, the use of certain maiming weapons in combat. Some of these treaties figured in the reasoning of the Nuremberg decisions. There are, Taylor asserts, two reasons why, in spite of some imperfections, these laws of war are of great importance, and their enforcement a matter of fundamental significance. The first reason is that they have worked to save lives. Just how this happened is not terribly important to him. Perhaps, he suggests, it happened because the participants were deterred by the threat of punishment. Perhaps it was because the laws of war embody standards of behavior that men, even in time of war, think it worth respecting. Perhaps because countries recognized a crude kind of self-interest in adhering to the conventions as a means of securing adherence by the other side.
It does not matter very much why the laws of war were respected to the degree that they were—even in the total wars of the twentieth century. What matters is that they were respected:
Violated or ignored as they often are, enough of the rules are observed enough of the time so that mankind is very much better off with them than without them. The rules for the treatment of civilian populations in occupied countries are not as susceptible to technological change as rules regarding the use of weapons in combat. If it were not regarded as wrong to bomb military hospitals, they would be bombed all of the time instead of some of the time.
It is only necessary to consider the rules on taking prisoners in the setting of the Second World War to realize the enormous saving of life for which they have been responsible. Millions of French, British, German and Italian soldiers captured in Western Europe and Africa were treated in general compliance with the Hague and Geneva requirements, and returned home at the end of the war.
German and Russian prisoners taken in the eastern front did not fare nearly so well and died in captivity by the millions, but many survived. Today there is surely much to criticize about the handling of prisoners on both sides of the Vietnam war, but at least many of them are alive, and that is because the belligerents are reluctant to flout the laws of war too openly. [p. 40]
Taylor’s second argument for preserving the laws of war concerns the effect of the laws—or of their absence—upon the moral sensibilities of individuals. Were we to do away with the laws of war, were we to concede that in time of war anything and everything are permissible, the capacity of persons generally to respond in accordance with the dictates of morality would be diminished rather than enhanced. “All in all,” Taylor argues, “this has been a pretty bloody century and people do not seem to shock very easily, as much of the popular reaction to the report of Son My made depressingly plain. The kind of world in which all efforts to mitigate the horrors of war are abandoned would hardly be a world sensitive to the consequences [of total war]” (p. 39).
More important, Taylor asserts, the laws of war have very significant and beneficial consequences for the moral outlook of the participating soldiers. They prevent the combatants from becoming completely dehumanized and from being made wholly vicious by their participation in war. The laws of war, he tells us, are
…necessary to diminish the corrosive effect of mortal combat on the participants. War does not confer a license to kill for personal reasons—to gratify perverse impulses, or to put out of the way anyone who appears obnoxious, or to whose welfare the soldier is indifferent. War is not a license at all, but an obligation to kill for reasons of state; it does not countenance the infliction of suffering for its own sake or for revenge.
Unless troops are trained and required to draw the distinction between military and non-military killings, and to retain such respect for the value of life that unnecessary death and destruction will continue to repel them, they may lose the sense for that distinction for the rest of their lives. The consequence would be that many returning soldiers would be potential murderers. [pp. 40-41]
The passage just quoted suggests a point of view that is fundamental to Taylor’s analysis, and that is made explicit in any number of places throughout the book. That is the view that the laws of war, when properly understood, do not impose any major restrictions upon the waging and the winning of wars, and, moreover, that there is nothing especially troublesome or morally unsatisfactory about this characteristic of the laws of war. Herein, I believe, lies one of the dangers of accepting Taylor’s approach, and one of its major defects.
The laws of war, Taylor tells us, place limits on what is permissible in time of war. But what this means is that “the ravages of war should be mitigated as far as possible by prohibiting needless cruelties, and other acts that spread death and destruction and are not reasonably related to the conduct of hostilities” (p. 20. Emphasis added).
Admittedly, this makes the laws of war somewhat amorphous, a good deal more elastic than one might abstractly like them to be. But much of this is due, Taylor hastens to assure us, to the inevitable character of war itself—which cannot be helped and which apparently need not, therefore, cause us undue concern. Consider, for example, the prohibition against killing enemy combatants who have surrendered. That doesn’t really mean, says Taylor, that you always have to take prisoners. There will certainly be times when it is permissible to kill combatants even though they have laid down their arms and tried to surrender: namely, when the commander orders his men to kill them because it is militarily necessary to do so. “The prisoners will be killed by operation of the principle of military necessity, and no military or other count has been called upon, so far as I am aware, to declare such killings a war crime” (p. 36).
Or consider two other cases where, according to Taylor, the doctrine of military necessity makes permissible ostensibly impermissible conduct. In 1930 a number of nations signed the London Naval Treaty. That treaty required that no ship sink a merchant vessel “without having first placed passengers, crew and ship’s papers in a place of safety.” The provisions of this treaty were regularly violated in the Second World War. Nonetheless these violations were not war crimes punished at Nuremberg. This is so, says Taylor, for two reasons. First, the doctrine of military necessity makes the treaty unworkable. If submarines are to be effective instruments of war, they cannot surface before they attack merchant ships, nor can they stand around waiting to pick up survivors. The answer is not that it is wrong to use submarines. Rather it is that in the interest of military necessity the prohibitions of the treaty cease to be prohibitions.