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A Response to Telford Taylor's Nuremberg and Vietnam: an American Tragedy Waldemar A

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A Response to Telford Taylor's Nuremberg and Vietnam: an American Tragedy Waldemar A The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals August 2015 A Response to Telford Taylor's Nuremberg and Vietnam: An American Tragedy Waldemar A. Solf Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Military, War, and Peace Commons Recommended Citation Solf, Waldemar A. (1972) "A Response to Telford Taylor's Nuremberg and Vietnam: An American Tragedy," Akron Law Review: Vol. 5 : Iss. 1 , Article 2. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol5/iss1/2 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Solf: Nuremberg and Vietnam A RESPONSE TO TELFORD TAYLOR'S NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY' WALDEMAR A. SOLF* U NDER THE headline "Military Made the Scapegoat for Vietnam," Charles G. Moskos, Jr., Chairman of the Department of Sociology, Northwestern University, examines (1) the attitudes and behavior of combat soldiers in Vietnam and (2) the reaction of elite groups in our society. Professor Moskos commented: It is a cruel irony that so many of our national leaders and opinion shapers who were silent or supported the original intervention during the Kennedy administration now adopt moralistic postures in the wake of the horrors of that war. There appears to be emerging a curious American inversion of the old "stab in the back" theory. Where the German general staff succeeded in placing the blame for the loss of World War I on the ensuing civilian leadership of the Weimar Republic, the liberal Establishment in America now seems to have embarked on placing the onus of the Vietnam adventure on the military. * .. [A] minor industry exists in the production of books and lec- tures castigating the military mind, the Pentagon, and GI butchers. ...It would not be too far -afield to say that antimilitarism2 has be- come the anti-Semitism of the intellectual community. Professor Telford Taylor,3 who is best remembered as Justice Robert H. Jackson's successor as Chief of Counsel at Nuremberg after the War Crimes trial of the major war criminals, became an instant giant of the new industry by suggesting that if one were to apply to Dean Rusk, Robert McNamara, McGeorge Bundy, Walt Rostow and General William Westmoreland the same standards that were applied in the trial of General Tomoyuki Yamashita "there would be a very strong possibility that they * Acting Chief, International Affairs Division, Office of The Judge Advocate General, Department of the Army. A.B., University of Chicago; J.D., University of Chicago Law School. The views herein are those of the author and do not necessarily con- stitute the views of the Judge Advocate General, Department of the Army or any other agency of the United States government. 1T. TAYLOR, NUREMBERG AND VIETNAM: AN AMERICAN TRAGEDY. Random House, 1970. Pp. 224. 2 WAR CRIMES AND THE AMERICAN CONSCIENCE 175-181 (Knoll & McFadden eds. 1970). 3 Columbia University Law School. Professor Taylor teaches Constitutional Law. Published by IdeaExchange@UAkron, 1972 1 Akron Law Review, Vol. 5 [1972], Iss. 1, Art. 2 AKRON LAW REVrZW [Vol. 5:1I would come to the same end as he did."' 4 This suggestion by the person described on the dust jacket as "U.S. Chief Counsel at Nuremberg" in- evitably elevates Professor Taylor to the status of a first magnitude star among the scapegoat makers. Regretably, Professor Taylor produced a work replete with demon- strable errors of law and contradictions. He thereby forfeits the oppor- tunity to assume a place among the very few who are qualified by experi- ence and academic standing to produce "trustworthy evidence" of what international law really is.5 There are, of course, too many who, without experience in the field, write at length about what it ought to be 6 and 7 some who affirm that it is what it is not. PROFESSOR TAYLOR'S CHARGES Stated broadly, Taylor attributes to influential policy makers criminal culpability under three categories: 1. Commander's Responsibility for Acts of Subordinates As the senior American commander in Vietnam, General Westmore- land is vicariously liable for failing to prevent atrocities committed by troops under his command. These include: a. Slaughter of villagers. b. Wanton destruction of property. c. Complicity in the torture of prisoners by the South Vietnamese. d. Murder of prisoners of war. 2. Unnecessary Killing and Devastation resulting from Tactical Decisions The manner in which military operations were conducted occasioned loss of life and unnecessary suffering disproportionate to the military advantage gained. Under this charge, Taylor mentions the forced reset- tlement of rural families, the creation of "free-fire" zones, and devastation of large areas of the country in order to expose the insurgents. 4Interview with Professor Taylor on the Dick Cavett show on Jan. 8, 1971, as reported in the N.Y. Times, Jan. 9, 1971, at 3, col. 1. 5 See Mr. Justice Gray's comments in Pacquete Habana, 175 U.S. 677, 700 (1900). 6 Speculation as to the interpretation of treaties, or the practice of nations is a legitimate enterprise which may influence the development of international law. 7 Altering the text of a multilateral treaty appears to be a brand new approach. Compare the text of the Annex to Hague Convention IV, Regulations Respecting the Law and Customs of War on Land, as published in 2 FALK, THE ViETNAM WAR AND INTERNATIONAL LAW, 500ff (1969), with the official text in 36 STAT. 2277; T.S. No. 539; II Malloy Treaties at 2269. One criticism levelled at law making treaties on the law of war is that they are hindsight oriented to the experience of the last war. But if the Falk text is correct, the 1907 Hague Regulations anticipated strategic bombing some eight or nine years before the first enterprising observation pilot thought it expedient to toss a grenade from the cockpit of his plane. http://ideaexchange.uakron.edu/akronlawreview/vol5/iss1/2 2 Solf: Nuremberg and Vietnam Winter, 1972] NuREmBERG AND VIETNAM 3. The Strategic Charge The decision to use military rather than political means of aiding South Vietnam did not gain a military advantage and was therefor un- necessary. Unnecessary military violence is criminal. These charges will be discussed in reverse order. THE STRATEGIC CHARGE In discussing President Johnson's strategic decision of 1965, when confronted with a deteriorating situation, to deploy large mobile forces to Vietnam, Taylor implies that military success supplies its own justifi- cation of military necessity. Conversely, he implies that military failure is proof that no military advantage was to be gained by the course of action followed and that the resulting ravages of war are therefore un- necessary. He quotes with approval Colonel Corson's view s that: "... American judgment as to the effective prosecution of the war was faulty from beginning to end"; that we became "over-involved militarily in the armed forces of the present, under-involved politi- cally in the human forces of the future"; and that in the upshot our political and military leaders alike lost sight of the old law of war that "it is a mistake, illegal and immoral, to kill people without clear military advantage in a war." 9 Stating the objective of U.S. policy in Vietnam to be "to stop Communism at the 17th parallel," Taylor suggests that -the strategy selected in 1965 involving the use of mobility and massive fire power by large military forces foreseeably resulted in high civilian casualties and property de- struction. In his view this course of action was not successful in achieving the stated objective, and, therefore, the casualties and devastation could not be justified by military necessity.' 0 Taylor's view of how the Vietnam conflict should have been con- ducted is one which cannot be assessed conclusively except by the judg- ment of history. The concept that unsuccessful military operations are their own proof of unnecessary violence injects a new dimension - res ipsa loquitur- to the basic principle of military necessity as justification for the violence of war. Military necessity was stated at Nuremberg as permitting: [A] belligerent, subject to the laws of war, to apply any amount and kind of force to compel the complete submission of the enemy with the least possible expenditure of time, life, and money.... It permits the destruction of life of armed enemies and other persons whose 8 R. CORSON, THE CHANGING NATURE OF WAR (1970). 9 TAYLOR, supra note 1, at 188. 10Id. at 189-192. Published by IdeaExchange@UAkron, 1972 3 Akron Law Review, Vol. 5 [1972], Iss. 1, Art. 2 AKRON LAw REVmW [Vol. 5: 1 destruction is incidentally unavoidable by the armed conflict of the war;... but it does not permit the killing of innocent inhabitants for purposes of revenge or the satisfaction of a lust to kill.... It does not admit the wanton devastation of a district or the willful infliction of suffering for the sake of suffering alone." (Emphasis added.) The Nuremberg courts considered it to be their duty to consider the defense of military necessity in the light of the facts and circumstances as they appeared to a decision maker at the time he made his decision; not on the basis of hindsight.
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