Walking Away from Nuremberg: Just War and the Doctrine of Command Responsibility

Chapter Five - Command Responsibility and the My Lai Massacre

114 C h a p t e r F i v e Command Responsibility and the My Lai Massacre i don’t think that what is done to a jap hanged in the heat of vengeance after World War ii can be done to an american on an imputed theory of responsibility. F. Lee Bailey On March 16, 1996, I went to the little village of Son My in Vietnam on the 28th anniversary of the My Lai Massacre, the event having been so named because American military personnel incorrectly labeled the village in which the atrocity occurred. After identifying myself as a U.S. Army officer out of uniform, I met and had tea with Pha·m Thành Công, the government official in charge of the My Lai Massacre Memo-­ rial Park (Khu Chúng Tích Són Mỹ). Pha·m Thành Công told me that he had been serving in a Viet Cong unit in the area of Son My at the time of the massacre, and then he described finding the dead bodies of his par-­ ents, siblings, and entire extended family upon returning to the village that evening. With the help of a translator, over the course of our tea he provided me with the most remarkable assessment of the massacre I have yet come across: “I know what happened here is not what the U.S. Army is about.”1 It is just as important to note what Pha·m Thành Công did not say in his assessment. He did not say that he considered the U.S. military in-­ tervention in Vietnam a noncriminal policy, although words to that ef-­ fect were prominent on the museum grounds around us. Neither did he say that the My Lai Massacre was either a representative act or an aber-­ ration with respect to the U.S. war effort. By deferring to Pha·m Thành Công, a victor in a war whose personal cost cannot be imagined by aver-­ age Americans, I am intentionally attempting to move the discussion of the massacre beyond the decades-­long debate over the characterization of the Vietnam War. While any wider examination of the historical sig-­ nificance of the Vietnam War must include the jus ad bellum premises Command Responsibility and the My Lai Massacre 115 behind American leaders’ decision to go to war, such a discussion is be-­ yond the scope of the present work. What is central to any analysis of the institutional breakdown of the American military profession dur-­ ing the period, however, is the jus in bello ethical consideration of American military tactics employed during the war, and their relation-­ ship to the specific actions of American personnel at My Lai. Christian G. Appy, a leading scholar of the war, has argued that “atrocity was intrinsic to the very nature of the American intervention in Vietnam, that given the policy of fighting a counterrevolutionary war on behalf of a client state incapable of winning widespread support amongst its people, American atrocities were inevitable.”2 I would ar-­ gue that such conditions also existed for the Wehrmacht forces serving in the Balkans, and that the standards of command responsibility held out to the leaders of these forces in the Nuremberg-­era Hostage case are, therefore, appropriate to apply to American military leaders in the wake of My Lai. The fact that American officers were held to a lesser standard of command responsibility cannot be explained in terms of any distinc-­ tion between the conditions under which separate criminal acts were perpetrated; rather, it must be explained in terms of the specific identity and/or nationality of the respective perpetrators. The Vietnam War left the American military with two conflicting standards of command responsibility, a doctrinal standard and a stan-­ dard representing the latest legal precedent. The Vietnam-­era failure of America to hold its own citizens to the same standards it held out to its defeated enemies has contemporary consequences that includes the U.S. possession of a unilateralist legal precedent concerning command responsibility that conflicts not just with its military doctrine, but also with a developing international consensus in humanitarian law. By the spring of 1968, conventional doctrine (i.e., the doctrine that conventional forces should be built up rather than specialized forces) had largely pushed aside what Gen. William DePuy called Kennedy’s and Gen. Maxwell Taylor’s counterinsurgency “fad.”3 Conventional American ground forces, rather than specialized...