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Copyright (c) 1993 The Law Review Association Western State University College of
Law
San Diego Justice Journal
Summer, 1993
1 San Diego Justice J. 295
LENGTH: 37501 words
WAR CRIMES: THE MY LAI MASSACRE AND THE VIETNAM WAR
NAME: Matthew Lippman*
BIO:
*Ph.D. Northwestern University; J.D. American University; LL.M. Harvard University; Associate Professor of Criminal Justice, University
of Illinois at Chicago.
SUMMARY:
... Unless civilization is to give way to barbarism in the conduct of war, crime must be punished... If the laws of war
are to have any beneficent effect, they must be enforced. ... Platoon leaders were under pressure to accumulate body
counts and were fearful of revealing that they had been derelict in their duty or complicit in a war crime. ... Herbert
compared the filing of formal war crime charges by an officer in Vietnam to " "one of the gunmen calling up the head of
the Mafia and saying, "Hey, tomorrow let's all go to the police,' or, "I'd like to go to the police and talk.' ...
TEXT:
[*295]
March 1993 marked the twenty fifth anniversary of the My Lai massacre. This barbarity will forever be
memorialized as one of the most infamous atrocities in modern military history. n1
My Lai lent credence to the allegation that the United States was committing war crimes in Vietnam, soiled the
military's reputation and fueled opposition to the war. In recent years, the issue of war crimes has once again captured
public attention. It would appear to be worthwhile to review the My Lai massacre and to reflect upon the significance of
this atrocity for the legal regulation of military conflict. n2
Initially, the events at My Lai are sketched. Next, the legal disposition of Lieutenant William L. Calley and the
others involved in the My Lai massacre is outlined. Section Two surveys the role of law in Vietnam and reflects upon
the capacity of the law of war to control military strategies and tactics.
I. THE MY LAI MASSACRE
A. PRELUDE TO THE MY LAI MASSACRE
In retrospect, it is tempting to view the My Lai massacre as the inevitable result of the pressures which were
exerted on the men involved. Charlie Company, 1st Battalion, 20th Infantry, arrived in Vietnam in December 1967. C
Company was part of the newly formed 11th Brigade which was attached to the Americal Division. n3 [*296] The
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Pentagon report on My Lai issued by Lieutenant General William R. Peers determined that the composition of C
Company conformed to the norm for American infantry soldiers in Vietnam. n4 None of the men had significant
combat experience. Roughly forty percent were enlistees, and slightly over sixty percent were inductees. The enlistees
had less education and were "less trainable" than the average inductee. n5 Their average age was just under twenty-one.
Approximately eight percent of the enlisted personnel had been accepted under the Project One Hundred Thousand
Program for mentally deficient individuals. This compared to the Army-wide accession figure of twelve percent. The
inductees were above average in virtually every evaluated area. Close to eighty percent were high school graduates and
roughly seventeen percent had earned college credits. The average age of the inductees was twenty-two. The Peers
inquiry concluded that that the "composition of Company C contained no significant deviation from the average and
there was little to distinguish it from other rifle companies." n6 Michael Bernhardt, a member of Charle Company,
noted that his fellow soldiers were ordinary Americans. "They were men who would have been accepted for military
service at any time. I wouldn't expect them to murder anybody or torture anybody...In the United States they would
have been friends of mine." n7 [*297]
After C Company was alerted in mid-1967 that they would be sent to Vietnam, they underwent an accelerated
training program, much of which was compressed into November 1967. Although the company received routine
training in the handling of prisoners, little emphasis was placed on the appropriate treatment of civilians or refugees or
on the obligation to report war crimes and atrocities. n8 The Peers inquiry concluded that the soldiers had received only
"marginal training in several key areas. These areas included: (1) provisions of the Geneval Conventions, (2) handling
and safeguarding of non-combatants, and (3) rules of engagement." n9
Upon arriving in Vietnam, C Company received a month long indoctrination before being assigned in January
1968 to Task Force Barker, a specially constituted force composed of one company from each of the three battalions in
the 11th Brigade. n10 Task Force Barker was assigned to the northeast portion of Quang Ngai Province which was
designated on the military maps as "Pinkville," adjacent to the North Vietnamese border. n11 The five hundred man task
force was faced with a daunting challenge-this was " "indian country,' " meaning it was firmly under the control of the
Viet Cong. n12 Between January 22 and March 15, 1968, Task Force Barker suffered over one hundred friendly
casualties, roughly forty percent of which occurred in the month of February. During the same period, the task force
killed and wounded an estimated three hundred enemy soldiers, captured fifty combatants and seized roughly twenty
weapons. n13
Ernest Medina was the commander of C Company. Medina was a Mexican-American who had risen through the
military hierarchy. [*298] Medina was an aggressive and determined leader who was given the sobriquet "Mad Dog
Medina." Vietnam offered him a precious opportunity to earn a promotion. n14 Medina's most loyal and devoted acolyte
was Second Lieutenant William L. Calley Jr., the commander of C Company's first platoon. In contrast to the
powerfully built Medina, Calley was an uncertain, boyish-looking, twenty-four year old who stood five-foot, three
inches tall. n15 "Rusty" Calley was a typical product of the Florida suburbs. An undistinguished high school student,
Calley flunked several classes in junior college and drifted from one menial job to another. Broke, and having received
a letter from his draft board to report for reevaluation, Calley impulsively enlisted in the Army. n16
Calley reported to Officer Candidate School (OCS) in March 1967, a year before the My Lai massacre, and
graduated 120th out of a class of 156. n17 He recounted that the overriding lesson taught at OCS was how to kill, with a
jungle vine, knife and rifle. It was stressed that the important thing in Vietnam was to get a big kill ratio or body count.
n18 Calley learned that in " "combat you haven't friends! You have enemies!...I told myself, I'll act as if I'm never
secure. As if everyone in Vietnam would do me in. As if everyone's bad.' " n19 He arrived in Vietnam with an
uncomplicated view of the war - all Vietnamese were the enemy. "Everyone there was VC. The old men, the women,
the children-the babies were all VC or would be VC in about three years. And inside of VC women, I guess there were a
thousand little VC now." n20 Calley did not recognize complexity - he assumed that all orders were legal and that a
soldier's duty was to carry out the mission to the best of his ability. n21
Despite his hard-nosed attitude, Calley did not command respect. The Peers Inquiry determined that he "lacked any
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real internal system for control and discipline of his platoon." n22 Journalist Seymour Hersh writes that most of the men
in Calley's platoon expressed "amazement" that the Army considered him officer material. n23 [*299] One platoon
member recalled that " "everybody used to joke about Calley. He was one of those guys they just take off the street.' "
n24 Another noted that Calley was constantly attempting to impress Medina: " "He was always trying to be the big man;
always would be the one to beat Vietnamese up. He didn't know what was going on half the time.' " n25 One of Calley's
machine gunners observed: " "Calley...reminded me of a kid, a kid trying to play war.' " n26
General William C. Westmoreland, in his 1976 autobiography, argued that the Congressional decision to grant
draft deferments to college students had forced the military to lower its standards and to appoint unqualified people like
Calley to the officer corps. n27 Westmoreland observed that:
Being an officer in the United States Army exceeded Lieutenant Calley's abilities. Had it not been for educational draft
deferments, which prevented the Army from drawing upon the intellectual segment of society for its junior officers,
Calley probably never would have been an officer. Denied the usual reservoir of talent, the Army had to lower its
standards. Although some who became officers under those conditions performed well, others, such as Calley, failed.
n28
The daily grind of search and destroy missions and life in the jungle took its toll. C Company encountered land
mines and snipers and felt frustrated over their failure to directly engage the enemy. n29 The men began to lash out,
beating and abusing civilians and prisoners. n30 Various soldiers were assigned by Medina to kill and torture prisoners.
n31 In one instance, Calley shot an elderly Vietnamese who had been dropped into a well by his men. Calley reported to
Medina that the victim was a Vietnamese sniper who had jumped into the well in order to avoid captivity. n32
Eventually, even those who had initially objected to this brutality began to tolerate the violence. n33 [*300]
On February 25, six were killed and twelve were seriously wounded when C Company wandered into a minefield
north of Pinkville. Many of the Americans blamed the villagers for having failed to alert them to the mines. The
violence escalated - in one case, two platoon members raped a young woman and killed her baby. n34 Calley was on
leave at the time of the ambush and coincidentally found himself in a helicopter loaded with gear which had been
retrieved from the ambush.
The chopper was filled with gear, rifles, rucksacks. ...There must have been six boots there with the feet still in them,
brains all over the place and everything was just saturated with blood. I believe there was one arm on it and a piece of a
man's face, half of man's face on the chopper with the gear. n35
By March 1968, murder, rape and arson had become commonplace. Many units ignored established policy and
established "zippo squads," groups whose mission was to follow combat troops through the hamlets and to set them on
fire. n36 Few questions were raised over the fact that weapons were seldom recorded as having been seized from dead
enemy soldiers. The suspicion was that these were civilian casualties. During a three-day operation in February, Task
Force Barker reported having killed eighty Viet Cong and having recovered no weapons. In another February operation,
seventy-five Viet Cong were reportedly killed and six weapons were captured. n37 Ronald Grezesik, a member of
Calley's platoon, later reflected that the platoon was caught in a vicious cycle which would later culminate in slaughter.
It was like going from one step to another...first, you'd stop the people, question them, and let them go. Second, you'd
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stop the people, beat up an old man, and let them go. Third, you'd stop the people, beat up an old man, and then shoot
him. Fourth, you go in and wipe out a village. n38
On March 14, two days before the My Lai mission, a small squad from the third platoon, C Company, wandered
into a booby trap. George Cox, a popular sergeant, was killed and another GI lost his eyes, an arm and a leg. In
retribution, the remaining squad [*301] members entered a nearby hamlet, stole a radio and killed a fifteen year old
girl and stole her ring. Medina later justified their actions, explaining that the young girl had detonated the booby trap
with a remote control device. n39 Gregory Olsen, a devout Mormon, described the incident in a letter to his father: "It
was murder, and I'm ashamed of myself for not trying to do anything about it. This isn't the first time....My faith in my
fellow men is shot to hell. I just want the time to pass and I just want to come home." n40
Journalist Richard Hammer writes that the men of C Company had been reduced to killers and thugs:
In dehumanizing and depersonalizing the Vietnamese, the Americans had themselves become depersonalized and
dehumanized, had become vultures on the land, scavengers in a strange country, leaving in their wake nothing but death
and destruction, and the hatred of those they had wronged. And like some horrible never-ending chain, they sensed
hatred and fear of the Vietnamese toward Americans was translated into even deeper hatred and fear of Americans
toward Vietnamese. And so the mask of the killer was donned. n41
Despite this brutality, not a single member of Task Force Barker was court-martialed for an offense against
Vietnamese civilians. n42 By mid-March, Task Force Barker had been in the field for almost ten weeks without a
respite. n43 Fifteen GI's in the three company task force had been killed and eighty-five wounded. n44 C Company of
Task Force Barker soon would be presented with the opportunity to extract their revenge.
B. THE MY LAI MASSACRE
Quang Ngai historically had been a center of nationalist sentiment. During the struggle against the French, it was a
stronghold of Viet Minh strength. Following the division of Vietnam, most nationalists in Quang Ngai migrated to
North Vietnam. They later returned to join the fight against the American-backed South [*302] Vietnamese regime.
n45
The neutralization of Quang Ngai Province, particularly Son My Village in the northeast, was a major objective of
the American forces. Villages were burned and the inhabitants were forced to move to the fortified villages established
by the United States or to Quang Ngai City. A significant number of the migrants found these locales to be harsh and
drifted back to their homes. The Americans and South Vietnamese considered those who returned to be Viet Cong (VC)
or VC sympathizers. n46
In March 1968, the United States' objective was to engage and to destroy the 48th Battalion of the North Vietnam
Army (NVA) which reportedly was headquartered in Son My Village. n47 Efforts to pacify the area proved to be
unsuccessful. Frustrated at their inability to attract support among the local population, the Americans determined that
they would decimate the province. The United States military declared the area to be a "free fire zone," which meant
that all targets and suspected targets could be feely attacked without obtaining prior approval. Tens of thousands of tons
of bombs, rockets, napalm and artillery ordinance were poured into northeastern Quang Ngai between 1965-1967.
Planes with excess ordinance frequently unloaded their bombs on any convenient target, and artillery fire was randomly
fired into the area. By 1967, 138,000 civilians had been rendered homeless and about seventy percent of the dwellings
in the province had been destroyed. n48
Task Force Barker had undertaken two previous efforts by [*303] February 1968 to dislodge the 48th Battalion
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from Son My. On both occasions C Company had performed a support role. On February 13, the Task Force undertook
a joint operation with South Vietnamese troops. They met heavy resistance, and after fighting their way into My Lai (1),
discovered that the enemy had disappeared during the night. The Americans suffered few casualties; but eighty VC
reportedly were killed, but no weapons were captured. However, the Americans did discover a weapons cache and
destroyed an intricate tunnel system. n49 The enemy again slipped out of My Lai on February 23. The total casualties
for the two-day operation were three GIs killed and twenty-eight wounded. Seventy-five Viet Cong were killed and six
weapons were captured during the operation. The Americans, however, were determined to return. Leaflets were
dropped which encouraged the civilians to leave the area and warned that those who chose to remain in Son My would
be considered VC or VC sympathizers. n50
Despite the small number of weapons captured, Lieutenant Colonel Frank Barker considered the operations a
success. Barker wrote that the February 23 attack was " "well planned, well executed, and successful.' " n51 He
attributed the failure to uncover arms to the failure of American troops to pursue the enemy which permitted the VC to
escape with the weapons of their fallen comrades. n52 Barker rather ominously noted that although control of
noncombatants posed no particular problem that " "operations of this type should provide for the establishment of a
civilian collecting point and a medical evacuation plan.' " n53
A third operation against the 48th Batalion was planned for March 16, 1968. Medina attended operational and
intelligence briefings on March 15, 1968 at which Colonel Oran Henderson, commander of the 11th Brigade, stressed
the importance of maintaining close and aggressive contact with the enemy. Henderson reminded his subordinate
officers that the task force finally had the opportunity to eliminate the 48th Battalion " "once and for all.' " n54 The
officers were informed during a separate intelligence briefing that they could expect to encounter an enemy force of
between 200 [*304] and 250 in My Lai (4), and that the 48th Battalion headquarters was located to the northeast in My
Lai (1), which was their ultimate objective. The civilian population was described as active sympathizers with the VC.
However, Henderson assured the officers that Saturday was market day and that most would be absent. n55
The attack plan called for the operation to commence at 0725 hours on March 16 with a three-to-five minute
prepatory artillery barrage. C Company was to be helicoptered into an area west of My Lai (4) at 0730 hours. The
insertion of the troops was to be supported by suppressive fire from helicopter gunships. C Company was to move east
through My Lai (4). n56
Following C Company's insertion into the combat area, B Company was to be inserted into a landing zone south of
My Lai (1), to the northeast of My Lai (4). This was to preceded by a second artillery assault south of My Lai (1).
Company A, the third rifle company in the assault, was to undertake a nighttime maneuver on March 15 and secure a
position to the north of the Son My area. The company was to hold this blocking position throughout March 16 in order
to trap enemy forces attempting to escape from the area. According to the plan, by the evening of March 16, the main
force of the 48th Battalion would find itself loosely encircled by the three companies. The only escape, to the east, was
blocked by the South China Sea which was to be patrolled by the Navy. Those VC which slipped through the grip of the
American ground troops were to be targeted by helicopter gunships. n57
Captain Medina assembled most of the officers and men of Company C to issue his orders and instructions for the
planned operation. The briefing was held following a memorial for Sergeant George Cox. Following the service,
Mediana rose and addressed the troops. Medina, according to the Peers inquiry, admonished his men that they probably
would be outnumbered by approximately two-to-one and that he expected that the landing zone would be " "hot' " or
under enemy fire. Medina also stressed the need to aggressively close with the VC in order to prevent the enemy from
retrieving weapons from their dead colleagues. n58
Medina also reportedly ordered his men to burn and destroy My Lai (4) and to kill the livestock and to destroy the
foodstuffs. [*305] No instructions were issued as to the treatment of civilians. According to the Peers inquiry, a
significant number of the men reported that Medina had "left little or no doubt" that all persons remaining in the vicinity
of My Lai (4) "were enemy, and that C Company's mission was to destroy the enemy." n59 Various witnesses also
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agreed that Medina made reference to the casualties which had been inflicted by enemy mines, booby traps and sniper
fire and that he characterized the forthcoming operation as an opportunity to take revenge against the VC. The Peers
inquiry concluded that "in a very real sense...it appears that the operation took the added aspect of a grudge match
between C Company and an enemy force in My Lai." n60 Medina also conceded that he had endeavored to work his
men into a determined frenzy. He explained that he was attempting to build their morale and to give them the "
"psychological bread to go in and do battle with the 48th VC Battalion.' " n61
Some sense of the mood of C Company is indicated by the question posed to Medina as to whether they should kill
women and children. Medina apparently was emphatic in rejecting such conduct. He did caution that " "if they have a
weapon and are trying to engage you, then you can shoot back, but you must use common sense.' " n62 The entire
operation was unfortunately built upon faulty premises: the 48th Viet Cong Battalion was not in Son My and the
civilians were not at the market. n63 Journalist Seymour Hersh concludes:
There was no conspiracy to destroy the village of My Lai 4...the desire...to mount another successful, high enemy
body-count operation...the belief shared by all the principals that everyone living in Son My was staying there by choice
because of Communist sympathies; the assurance that no officials of the South Vietnamese government would protest
any act of war in Son My; and the basic incompetence of many intelligence [*306] personnel in the Army - all these
factors combined to enable a group of amitious men to mount an unnecessary mission against a nonexistent enemy
force, and somehow also to find the evidence to justify it all. n64
Charlie Company did not receive any incoming fire as they scrambled out of their helicopters and initiated a
combat assault. The third platoon, along with Medina's command group, formed a defensive perimeter on the western
edge of the village, about 150 meters from the tree line. The first and second platoons aggressively moved into the two
or three square kilometers which comprised My Lai (4) with their guns firing and almost immediately began to engage
in random acts of violence against the civilians. Shortly before 0800 hours, Medina radioed that they had killed fifteen
VC. Over the next three hours, C Company viciously swept through My Lai (4) and several adjoining groups of homes.
n65
No single individual was aware of the entire sequence of events. The platoons split into separate squads and
portions of the village were covered and obscured by foliage, bamboo and banana trees and other vegetation. However,
all the particants could hear the continuous stream of weapons firing, and grenades rocket launchers exploding. The
First Platoon edged into the southern portion of My Lai (4) in three separate squads while Calley and his radio operator
followed closely behind the troops. The Americans fired at anything that moved - pigs, chickens, ducks, and cows. The
soldiers dispersed throughout the village, motioning the inhabitants to exit their dwellings. Bunkers and huts that
appeared to be empty were razed with grenades or raked with machine gun fire. Some Vietnamese were executed as
they stumbled out of their huts, but most were gathered into several large groups. n66 English journalists Michael Bilton
and Kevin Sim describe the impressions of Dennis Conti, who operated a mine sweeper:
To Conti the men appeared all psyched up when they landed. The shooting, once it began, created almost a chain
reaction....Inside the village his comrades appeared out of control. Families had huddled together for safety in houses, in
the yards and in bunkers only to be mown down with automatic weapon [*307] fire or blown apart by fragmention
grenades. Women and children were pushed into bunkers and grenades thrown in after them....At one point, wandering
off on his own, Conti found a woman aged about 20 with a 4-year-old child. He forced her to perform oral sex on him
while he held a gun at the child's head, threatening to kill it. Just at that moment Calley happened along and angrily told
him to pull on his pants and get over to where he was supposed to be. n67
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C Company still had not yet received any enemy fire or had encountered any VC. At approximately 0830 hours,
Captain Medina reported that the body count now had risen to eighty-four enemy dead. n68 Only a few refused to
participate in the brutalities or offered assistance to the Vietnamese. n69 The only American injury in Calley's platoon
was an American soldier who shot himself in the foot. n70
The atrocities escalated. Many GI's became " "double veterans,' " slang for raping and murdering a Vietnamese
woman. Many females reportedly were raped, sodomized, mutilated, and then had their vaginas torn open with knives
or bayonets or blasted apart by rife fire. Victims were stabbed, had their limbs cut off, or were beheaded. Others were
scalped, had their tongues cut out or throats slit. Vietnamese were beaten, clubbed, bayoneted and were shot at point
blank range. The signature " "C Company' " or the shape of an Ace of Spades, a Vietnamese sign of bad luck, was
carved into the chests of the dead. n71
The events which made My Lai infamous were now to unfold. Paul Meadlo was standing guard over a group of
elderly people, young women and children. n72 Calley approached and remarked that " "you know what to do with
them, Meadlo.' " n73 Meadlo testified that Calley later returned and was irritated to find Meadlo still standing guard:
He said, "How come they're not dead?" I said, "I didn't know [*308] we were supposed to kill them." He said, "I want
them dead." He backed off twenty or thirty feet and started shooting into the people - the Viet Cong - shooting
automatic. He was beside me. He burned four or five magazines. I burned off a few, about three. I helped shoot 'em. n74
Dennis Conti corroborated Meadlo's testimony.
Lieutenant Calley came out and said take care of these people. So we said, okay, so we stood there and watched them.
He went away, then he came back and said, "I thought I told you to take care of these people." We said, "We are." He
said, "I mean, kill them." n75
So they - Calley and Meadlo - got on line and fired directly into the people. There were bursts and single shots for
two minutes. It was automatic. The people screamed and yelled and fell....The people were pretty well messsed up. Lots
of heads was shot off, pieces of heads and pieces of flesh flew off the sides and arms. Meadlo fired a little bit and broke
down....He gave his weapon into my hands. I said I wouldn't. "If they're going to be killed, I'm not going to do it. Let
Lieutenant Calley do it," I told him. n76
Conti reportedly wandered away and later saw Calley and Sergeant David Mitchell firing into a ditch.
I moved to the left to see what they were shooting at. It was a ditch and there were people there, and Calley and
Mitchell were firing down into them. The fire... was both automatic and semi-automatic, single shots. A lot of them, the
people, were trying to get up and mostly they was just screaming and pretty bad shot up.
The people were lying in the ditch right beneath Calley and Mitchell...and both men were holding their weapons at
their shoulders and I could see muzzle flashes. I seen a woman tried to get up. I seen Lieutenant Calley fire. He hit the
side of her head and blew it off. n77
Calley was not finished. His radio operator, Charles Sledge, then testified.
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We went up the ditch...and we came upon a priest almost at the end of the ditch. At least I think he was a priest; he
was [*309] dressed in white robes. Lieutenant Calley started to ask him some questions and the priest, he would fold
his hands and bow his head and say, "No Viet, no Viet." Calley asked him a few more questions and he kept saying,
"No Viet." Then Lieutenant Calley hit him with the butt of his rifle.
...His mouth was bleeding and then he fell back a little and folded his hands and, sort of like pleading. Lieutenant
Calley took his rifle and point-blank pulled the trigger right in his face and blew half his head off. The priest fell. Half
his head was blown away. n78
Sledge then testified that someone shouted that a child was running back toward the village.
Lieutenant Calley ran back and grabbed the baby by one arm. I don't know whether it was a boy or a girl. He picked it
up by one arm and threw it into the ditch, and shot it. He flung it into the ditch, the deep end of it. The child was maybe
one or two. Lieutenant Calley fired one shot. n79
Lieutenant Calley, in an interview with journalist John Sack, explained his motivation.
As for me, killing those men in My Lai didn't haunt me. I didn't - I couldn't kill for the pleasure of it. We weren't in My
Lai to kill human beings, really. We were there to kill ideology. That is carried by - I don't know. Pawns. Blobs. Pieces
of flesh, and I wasn't in My Lai to destroy intelligent men. I was there to destroy an intangible idea communism. n80
Those people are monsters, and they have no qualms, no hang-ups, no holding-backs to the extremes they'll go to. I
mean butcherings: that is what communism does, and we were there in My Lai to destroy it. Personally, I didn't kill any
Vietnamese that day: I mean personally. I represented the United States of America. My country. n81
The Peers inquiry concluded that C Company killed between 175 and 200 Vietnamese. The Army Criminal
Investigation Division (CID) etimated that the number of dead Vietnamese totalled 347. The company suffered only one
self-inflicted injury. Only three or four of the dead Vietnamese were confirmed VC. Three enemy weapons and several
sets of web gear and grenades were also cap [*310] tured. The inquiry concluded that there was no evidence that the
company had received any enemy fire or had encountered any other form of resistance prior to or after entering My Lai
(4). n82
The inquiry concluded that there was no substantial evidence that Lieutenant Colonel Barker had ordered the
deliberate killing of noncombants. However, it did determine that the "minimal or nonexistent instructions concerning
the handling of noncombatants created the potential for grave misunderstandings as to his intentions and for
interpretation of his orders as authority to fire, without restriction, on all persons found in the target area." n83 The
Peers report specifically pointed to a number of factors which it believed had contributed to a possible
misunderstanding of the mission: the warnings contained in the leaflet drops; the distorted intelligence picture of Son
My as being comprised of VC and VC sympathizers; the assumption that the civilians would be absent at the market;
the decision to fire artillery into the village; the seeming acceptance of civilian deaths in previous operations; and the
failure to make provision for the removal of civilians. n84
Nevertheless, following the My Lai massacre, the command structure of Task Force Barker did not report that any
irregularities had occurred during the March 16 assault. The task force reported that 128 Vietnamese had been killed
and three weapons were captured during the operation. n85 C Company had allegedly accounted for 84 VC casualties
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and had experienced only one casualty. n86 Lieutenant Colonel Frank Barker's after-action report described the opertion
as " "well planned, well executed, and successful.' " n87 He obliquely noted that there had been a " "problem in
population control and medical care' " of those civilians caught in the exchange of fire between the opposing forces. n88
However, Barker reported that the Americans were able to " "assist civilians in leaving the area and in caring for and/or
evaculating the wounded.' " n89
General William Westmoreland, commander of United States [*311] forces in Vietnam, sent Task Force Barker a
congratulatory telegram which praised the " "heavy blows' " which the unit had inflicted on the enemy. n90 Major
General Samuel W. Koster, commanding general of the Americal Division who later was appointed commandant of
West Point, added his " "congratulations for the teamwork and aggressiveness exhibited by the above-mentioned
companies and to all others participating in this operation.' " n91 The New York Times reported on the front page that
the My Lai operation was another successful " "American offensive to clear enemy pockets still threatening the cities.' "
n92
A number of officers must have known that large-scale civilian casulties had occured during the My Lai operation.
The figures on the number of enemy killed, weapons seized and American casualties and the absence of reports of
enemy resistance should have alerted the American command that something unusual had occurred. n93 The Peers
inquiry records that
this apparently resounding success passed with no substantive inquiry by commanders at task force, brigade, or division
level...despite the fact that all three were in the area for varying lengths of time...there is little to explain why none of
these three comannders ever landed...or observed what should have been readily apparent to anyone overflying the area
at less than 1,000 feet. n94
In fact, reports of civilian casualties circulated among the supervising officers n95 and were being transmitted over
the radio network which was being monitored by the command structure. n96 One [*312] report is particularly
well-documented. As part of the combat support being provided Task Force Barker, an aero-scout team was providing
aerial surveillance. The pilots spotted various brutalities against civilians. n97 In one instance, Hugh C. Thompson, a
helicopter pilot, noted between fifty and one hundred civilian bodies in a ditch, some of whom were alive. Thompson
landed to request the troops to assist the wounded. A sergeant tersely replied that " "the only way he could help was to
kill them.' " n98 As Thompson departed, the sergeant was observed firing into the ditch. Alarmed, Thompson later
landed on two other occasions to evacuate civilians who were being threatened by American troops. n99
Upon returning to their base, a number of the pilots lodged complaints. n100 Lieutenant Colonel Frank Barker
allegedly investigated the complaints and concluded "while a small number of noncombatants had been killed in My Lai
(4), it was "a result of justifiably situations' and that ...he found nothing to indicate that a large number of people had
been killed." n101
The Peers report notes that "there was at least a tacit decision to withhold from higher headquarters any
information concerning the incident." n102 The command structure, according to Peers, adopted a " "close-hold'
attitude" concerning information relating to the incident. n103 Although Major General Koster, head of the Americal
Division, directed Colonel Oran Henderson to examine the My Lai matter, the Peers inquiry reported that no effort was
made to insure that an "adequate investigation would be conducted." n104 Henderson's April 24, 1968 report concluded
that twenty noncombatants had been killed by prepatory fire. n105 The report went on to state that interviews with
Lieutenant Barker, Cap [*313] tain Medina and other officers "revealed that at no time were any civilians gathered
together and killed by U.S. soldiers." n106 Colonel Henderson concluded that the allegation that the American forces
had "shot and killed 450-500 civilians is obviously a Viet Cong propaganda move to discredit the United States in the
eyes of the Vietnamese people in general and the ARVN (South Vietnamese Army) soldier in particular." n107 All other
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investigative files and reports appear to have been removed from the official files. n108 The Peers inquiry concluded
with a strong indictment of the American command structure's response to the My Lai massacre:
It is evident that efforts to suppress and withhold information concerning the Son My incident were made at every level
in the Americal Division. These efforts, coupled with the false and misleading reports by COL Henderson were
successful in containing the story of Son My within the division. It is evident to this Inquiry, after interviewing most of
those who witnessed the events at Son My, that any serious attempt to interrogate such individuals immediately
following the incident would have resulted in full disclosure of the event....If there had been real concern in the chain of
command, if anyone had taken action to ask questions, they would have had full and complete answers. n109
Some cosmetic changes were made. A week following My Lai, Major General Koster, head of the Americal
Division, issued a revised set of Rules of Engagement to guide the conduct of American troops. The reconstituted
regulations reminded commanders that itwas important to develop a thorough and continuing program ofeducation
concerning the humanitarian treatment of noncombatants. n110
On April 13, an order was issued to the Americal Division instructing the command that the term " "search and
destroy' " was no longer to be used in correspondence. n111 The memo explained that the phrase had mistakenly
fostered the impression that military [*314] operations were conducted without regard to the safety and security of the
civilian population. Acceptable phrases included, "sweep operations, search and clear, search and hold, cordon and
search and reconnaissance in force.....And meeting engagement and movement to contact." n112 The instructions
stressed that other words and phrases were permissible, "providing they give the reader no basis for assuming a lack of
compassion on the part of members of this command." n113 This, of course, was a symbolic rather than a substantive
response. The Peers report determined that thirty officers had engaged in criminal acts in suppressing information and
reports or in failing to order, supervise or to undertake an adequate investigation. n114
The events at My Lai only came to public awareness when a former GI, Ronald Ridenhour, posted a letter on April
2, 1969 to a number of United States government officials. Ridenhour's letter described a number of reports concerning
the massacre of civilians at My Lai (4). n115
Exactly what did, in fact occur in the village of "Pinkville" in March, 1968 I do not know for certain, but I am
convinced that it was something very black indeed. I remain irrevocably persauded that if you and I do truly believe in
the principles of justice and the equality of every man, however humble, before the law, that form the very backbone of
this country is founded on, then we must press forward a widespread and public investigation of this matter with all our
combined efforts....I hope that you will launch an investigation immediately and keep me informed of your progress.
n116
C. THE AFTERMATH OF THE MY LAI MASSACRE
On September 5, 1969, the information officer at Fort Benning, Georgia, announced that Lieutenant William
Calley was being charged with the murder of 109 "Oriental human beings," later reduced to 102. n117 On October 28th,
the Army accused Sergeant David Mitchell, one of Calley's squad leaders, with assault with intent to murder thirty
people. On November 17, Charles E. Hutto, [*315] another member of Calley's platoon, was charged with murder,
rape and assault with intent to murder six individuals at My Lai. Thirteen others then were charged with criminal
offenses, including Captain Ernest Medina who was accused of murder on March 10, 1970. n118 The web of criminal
culpability then was extended to encompass those officers who allegedly were derelict in their duties and who covered
up the massacre. Those indicted included Major General Samuel W. Koster who was charged with failure to obey
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lawful regulations and with dereliction in duty in covering up the massacre. Koster was considered one of the brightest
of the younger generation of generals and, at the time, was serving as commandant of the United States Military
academy at West Point. He was thought to be on the fast-track to Army Chief-of-Staff. n119
Some urged a mass trial in which the responsibility for My Lai could be allocated among the guilty parties. This
would limit media and public attention to several months, rather than conducting various trials which would drag on for
several years. Such a proposal, however, was unrealistic. It would conjure up images of the war crimes trial at
Nuremberg and suggest that the Americans, like the German high command, had engaged in a deliberate policy of
genocide. n120
It was decided to sever the trials. This permitted the judges to limit the evidence to prevent the events at My Lai
from being fully presented in any single prosecution. In order to further blunt the impact of the trials, the accused were
scattered among several mili [*316] tary bases. The commanding general of each installation was responsible for
determining whether the evidence adduced at a pretrial hearing was sufficient to subject the accused to a court-martial.
n121 It was clear that the American government had reluctantly decided to undertake the prosecutions in order to blunt
opposition to the war. In New Orleans, Vice President Spiro T. Agnew cautioned that " "we have to keep in mind that
the Communists have committed many atrocities and the...difference between us is that in the Communist case they
were carried out with the direction and consent of their leaders.' " n122 President Richard Nixon stressed that the alleged
charges were an " "isolated incident.' " n123
The initial trials resulted in acquittals. There was a failure of proof and the military jurors appeared reluctant to
convict combat veterans of war crimes. At Fort Hood, Sergeant David Mitchell was acquitted of murder. In his
summation, Mitchell's volunteer civilian lawyer Ossi Brown pleaded that " "I don't like to see the prosecution of any
young man sent to fight for his country....Some elements are trying to undermine and destroy the military of this
country...we need soldiers such as Sergeant Mitchell. Let's not betray him.' " n124
In February 1971, Sergeant Charles Hutto was brought to trial at Fort McPherson. As with Mitchell, no witnesss
would testify that they had witnessed Hutto actually kill a civilian, and he was acquitted by the six officers on the jury.
n125 Hutto's lawyer stressed that the " "only thing the Army ever said to Charles Hutto is that he was to obey orders
without question.' " n126
The military was not inclined to risk the embarrassment of additonal acquittals. Lieutenant General Albert
O'Connor, commander of the Third United States Army at Fort McPherson, proceeded to dismiss charges against four
of those charged with murder and, shortly thereafter, charges against three others also were quietly dropped. n127
Meanwhile, at Fort Meade, Lieutenant [*317] General Jonathan O. Seaman, commander of the First Army at Fort
Meade, was systematically dropping the charges against the officers charged in the cover-up. n128 In late January 1971,
Seaman dropped the charges against General Koster " "in the interest of justice.' " n129 Seaman conceded that there was
"some evidence" that Koster had known that civilians had been killed at My Lai and yet had failed to investigate. n130
Of the twenty-five originally charged with some measure of blame, only four remained. Eleven of the twelve
officers had been released. n131 Colonel Oran Henderson was the only officer charged with dereliction of duty who was
to be subjected to a court-martial. n132 In April 1971, Captain Eugene Kotouc was acquitted. By the time Kotouc stood
trial, the murder charges against him had been dropped and all that remained was the charge of aggravated assault
against a prisoner during interrogation. The jury accepted that Kotouc had accidentally cut off the prisoner's finger and
took less than an hour to acquit him. n133 Colonel Henderson then was acquitted after adamantly insisting that he never
knew or was informed of the killings at My Lai. n134 Only Medina and Calley were left. Medina was acquitted at Fort
McPherson after the judge issued, what some legal scholars contend, was an overly-liberal interpretation of the
applicable legal standard. n135 Only Calley now [*318] remained. n136
Calley's trial lasted seventy-seven days and involved over one hundred witnesses. A jury of six combat veterans,
five of whom had served in Vietnam, n137 convicted Calley of three counts of premeditated murder and one count of
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assault with intent to commit murder. n138 Calley pled in mitigation that "when it became between me and that enemy,
I had to value the lives of my troops-and I feel that was the only crime I have committed." n139 The jury determined
that Calley should be confined at hard labor for the length of his natural life and that he should be dismissed from the
service with forfeiture of all his pay and allowances. n140
The next day, President Nixon ordered that Calley should be released from the stockade at Fort Benning and that
he should be returned to his apartment and placed under house arrest. n141 Two days later, President Nixon announced
that he would personally review Calley's convicton and appeal. n142 Prosecutor Aubrey Daniels took the unusual step
of writing President Nixon a letter criticizing the chief executive's decision to intervene in the Calley case. n143
You have subjected a judicial system of this country to the criticism that it is subject to political influence, when it is a
fundamental precept of our judicial system that the legal processes of this country must be kept free from any outside
influences. What [*319] will be the impact of your decison upon the future trials, particularly those within the
military?
Not only has respect for the legal process been weakened and the critics of the military judicial system been
supported for their claims of command influence, the image of Lieutenant Calley, a man convicted of the premeditated
murder of at least 22 unarmed and unresisting people, as a national hero has been enhanced, while at the same time
support has ben given to those people who have so unjustly criticized the six loyal and honorable officers who have
done this country a great service by fulfilling their duties as jurors so admirably. n144
I would expect that the President of the United States, a man whom I believed should and would provide the moral
leadership for this nation, would stand fully behind the law of this land on a moral issue which is so clear and about
which there can be no compromise.
For this nation to condone the acts of Lieutenant Calley is to make us no better than our enemies and make any
pleas by this nation for the humane treatment of our own prisoners meaningless. n145
On August 20, 1971, Calley's sentence was reduced to twenty years at hard labor by the Commander of the Third
Army. n146 The Secretary of the Army, on April 15, 1974, commuted Calley's confinement to ten years. President
Nixon then notifed the Secretary on May 3, 1973, that he would take no further action in the Calley case. n147 Finally,
on November 9, 1974, Calley was paroled by the Secretary of the Army after having served one-third of his sentence.
n148
Calley then appealed to the Court of Military Review. n149 His first argument was that the deaths of the My Lai
villagers were not "legally requitable in that the villagers had no right to continued life cognizable in our law." n150
This argument was based on the fact [*320] that the villagers' support and sympathy for the Viet Cong was so
extensive and enduring that they were not entitled to civilian status. n151 Despite their support for the VC, Calley
argued that were not entitled to prisoner of war status in that they did not satisfy the four minima which must be met by
irregular belligerents in order to be regarded as prisoners of war under the Geneva Convention. n152 The Court ruled
that this argument suffered from several fallacies. The Tribunal reasoned that guilt is individual and that "slaughtering
many for the presumed delicts of a few is not a lawful response to the delicts." n153 The fact that some may have
assisted the VC did not justify the killing of "infants in arms or children of toddler age." n154 In addition, the law of war
does not permit the summary execution of irregular combatants without a hearing in which the rudiments of due process
are respected. The judges pointed out that "whether an armed conflict be a local uprising or a global war, summary
executions as in My Lai (4) are not justifiable." n155
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Calley also raised a series of claims which attempted to establish that he lacked the requisite mens rea. He initially
argued that his actions were the product of a provocation which negated malice and reduced his offense to
manslaughter. n156 Calley then contended that the events preceding and during the My Lai operation affected his
"psychic make-up" and deprived him of the capacity to premeditate or to entertain a state of mind of malice. He also
claimed that he acted out of the good motive of defending his country and was devoid of malice and, at most, was guilty
of manslaughter. Finally he argued that his acts were undertaken in response to superior orders. n157 [*321]
The Court did not find adequate provocation to reduce Calley's intentional killing of the Vietnamese to
manslaughter. The judges observed that the insertion of the ground troops into My Lai (4) was not met by resistance and
that the company had tripped no mines or booby traps. The Vietnamese passively submitted and Calley was not
confronted with a threat or with a hostile reaction.
No residents of My Lai did anything during the 16 March operation to provoke appellant's killing them and ordering
their killing. If any cause could be found in their conduct, it would only be a history of sympathy or support for the
enemy as related in available intelligence information. A status of being a sympathizer, collaborator, or Viet Cong
proper is not such provocation as would mitigate a summary execution down the scale of unlawful homicide to
manslaughter. n158
Military law, according to the Court, also does not recognize partial impairment. A defendant must establish a total
lack of capacity to form a murderous mens rea. n159 The Court pointed to evidence of Calley's premeditation. He did
not act impulsively-Calley deliberately directed his men, supervised and participated in the killings and gave every
impression of being in control and aware of his actions. He possessed the two functions essential to the relevant mens
rea - the ability to perceive and predict.
Appellant knew he was armed and what his weapon would do. He had the same knowledge about his subordinates and
their arms. He knew that if one aimed his weapon at a villager and fired, the villager would die. Knowing this, he
ordered his subordinates to "waste" the villagers at the trail and ditch, to use his own terminology; and fired upon the
villagers himself. These bare facts evidence intent to kill, consciously formed and carried out. n160
The Court also rejected as legally irrelevant the contention that Calley was motivated by deep unconscious
impulses-anger, anxiety, guilt and by a strong psychic need to satisfy and to please others. The defense argued that the
orders Calley purportedly recieved, or thought he received, combined with Calley's fear and contempt for the
Vietnamese, to trigger "an impelling urge to kill of an involuntary nature." n161 The Court ruled that "deterministic
theories of the [*322] unconscious are logically irrelevant because the legal definitions of premeditation, intent, and
malice are framed in terms of conscious thought." n162
Calley next contended that he genuinely thought the villagers had no right to live because he viewed them as the
enemy. He thus argued that he was devoid of malice because he was not conscious of the criminal quality of his acts.
The Court ruled that Calley's mistake of fact did not constitute a defense. It noted that a mistaken belief must be of such
a nature that the conduct would have been lawful had the facts actually been as the defendant believed them to be. The
Court noted that this defense was of no assistance to Calley since an enemy in custody may not be summarily executed.
n163
Calley placed particular emphasis on the fact that he lacked mens rea because he acted in obedience to superior
orders. Calley contended that Medina had issued an order to C Company to " "go through destroying everyone and
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everything in there, not letting anyone or anything get behind us and move on into Pinkville.' " He further alleged that
Medina had repeated this order the following morning at the platoon leaders' briefing prior to the helicopter lift-off and
had repeated it twice over the radio while the men were in the village. n164 [*323]
The testimony of Calley and Medina were mutually conflicting. No two witnesses who attended Medina's briefing
to C Company had precisely the same recollection of his remarks pertaining to the treatment of noncombatants. All did
agree that they expected the civilians to be at the market and that they were prepared to encounter the 48th Battalion.
Three defense witnesses interpreted Captain Medina's answer to a question as to whether women and children were to
be considered as the enemy as an affirmative directive to kill them. About twenty prosecution and defense witnesses
had no recollection of any order to kill women and children. Calley's testimony that Captain Medina had ordered him to
kill villagers was not corroborated. Two could recall no such order, one was certain that no such order had been given
and another witness could neither deny or affirm that such an order had been issued. n165 The Tribunal thus concluded
that no such order had been given and that, in any event, such a directive would not have been exculpatory.
If the members found that appellant fabricated his claim of obedience to orders, their finding has abundant support in
the record. If they found his claim of acting in obedience to order to be credible, he would nevertheless not
automatically be entitled to acquittal. Not every order is exonerating. n166
The Court upheld Judge Reid W. Kennedy's jury instructions on the question of superior orders. After
summarizing the evidence, Kennedy had informed the jury that, as a matter of law, that any order issued to Calley "to
kill unresisting civilians within his control or within the control of his troops would have been illegal; that summary
execution of detainees is forbidden by law." n167 Judge Kennedy went on to stress that the fact that such an order was
illegal did not resolve the question of Calley's guilt. He observed that the law seeks to balance the fact battlefield
efficiency and organization requires obedience to orders against the fact that the law of war is constrained by certain
rules and regulations. n168 The test in determining legal liability, as stated by Judge Kennedy, is not [*324] whether an
order is illegal, but whether a reasonable person would know the order to be illegal.
The acts of a subordinate done in compliance with an unlawful order given him by his superior are excused and impose
no criminal liability upon him unless the superior's order is one which a man of ordinary sense and understanding
would, under the circumstances, know to be unlawful, or if the order in question is actually known to the accused to be
unlawful. n169
Judge Kennedy further instructed the jury that if it determined that Calley actually knew that the orders which he
received were illegal, that the issuance of the orders would not be a defense. Alternatively, if Calley acted in response to
orders to kill unresisting detainees and if he was unaware that the orders were illegal, he must be acquitted. However, he
should not be acquitted if the jury was satisfied beyond a reasonable doubt that a man of ordinary sense and
understanding would have known the orders to be unlawful. Of course, if no such order had been issued, Calley also
should not be entitled to invoke the superior orders defense. n170
The Court of Military Review ruled that Judge Kennedy's instructions were accurate and that the jury had properly
rejected Calley's superior orders defense. "An order of the type appellant says he recieved is illegal. Its illegality is
apparent upon even cursory evaluation by a man of ordinary sense and understanding. A finding that it is not
exonerating should not be disturbed." n171 Calley contended that obedience to superior orders is a defense which strikes
at mens rea and that an obedient subordinate should be acquitted so long as he did not personally know of the order's
illegality. Precedent aside, the Tribunal ruled that there were firm reasons of public policy to reject such a subjective
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standard. This type of a test would abrogate the objective restraints of the law of war, jeopardize civilians and invite
barbarism and reprisals. n172
The three judge court affirmed Calley's life sentence which "is not too severe a consequence of his choosing to
commit mass murder." n173
No doubt Lieutenant Calley would never have directed or participated in a mass killing in time of peace. Nevertheless,
he com [*325] mitted an atrocity in time of war and it is in the context of war that we judge him. Destructive as war is,
war is not an occasion for the unrestrained satisfaction of an individual soldier's proclivity to kill. An officer especially
must exert his mind to keep his emotions in check, so that his judgment is not destroyed by fear, hate, or frustration.
Probably Lieutenant Calley's judgment, perception, and stability were lesser in quality than the average lieutenant's and
these deficiencies are mitigating to some extent. However, the deficiencies did not even approach the point of depriving
him of the power of choice. n174
The United States Court of Military Appeals affirmed that there was sufficient evidence in the record for the jury
to conclude that Calley was guilty beyond a reasonable doubt. n175
The testimony of Meadlo and others provided the court members with ample evidence from which to find that
Lieutenant Calley directed and personally participated in the intentional killing of men, women, and children, who were
unarmed and in the custody of armed soldiers of C Company. If the prosecution's witnesses are believed, there is also
ample evidence to support a finding that the accused deliberately shot the Vietnamese monk whom he interrogated, and
that he seized, threw into a ditch, and fired on a child with the intent to kill. n176
The Court of Military Appeals addressed the standard for determining knowledge of the legality of superior orders.
Calley attacked the requirement that the prosecutor establish that either Calley had knowledge of the order's illegality or
that a person of ordinary sense and understanding would have known that the order was unlawful. Calley contended that
these instructions were prejudicially erroneous and that the Court should have adopted a governing test which required
the jury to determine whether the order was so "palpably or manifestly illegal that a person of the "the commonest
understanding' would be aware of its illegality." n177 He argued that the standard enunciated by Judge Kennedy was
strict and unjust. It unfairly confronted members of the armed forces who are not of "ordinary sense and understanding
with the dilemma of choosing between the penalty of death for disobedience of an order in time of war on the one hand
and the equally serious punishment [*326] for obedience on the other." n178 Calley also contended that the person of
the commonest understanding standard recognizes that the first duty of a soldier is obedience and without this there can
be neither discipline nor efficiency in an army. A stringent knowledge requirement risks transforming the military into a
debating society in which orders are challenged and discussed and the armed forces are paralyzed by inaction. n179
The Court of Military Appeals ruled that the ordinary sense and understanding test was set forth in military
manuals and precedent. n180 In any event, the Court determined that adoption of the lower standard would not insulate
Calley from liabilty.
Whether Lieutenant Calley was the most ignorant person in the United States Army in Vietnam, or the most intelligent,
he must be presumed to know that he could not kill the people involved here....An order to kill infants and unarmed
civilians who were so demonstrably incapable of resistance to the armed might of a military forces as were those killed
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by Lieutenant Calley is...so palpably illegal that whatever conceptional difference there may be between a person of "
"commonest understanding' " and a person of " "common understanding,' " that difference could not have had any "
"impact on a court of lay members receiving the respective wordings in instructions,' " as appellate defense counsel
contend. n181
In 1974, Calley filed a petiton for a writ of habeas corpus. n182 Judge Robert Elliot ruled that Calley was denied a
fair trial due to the inherently prejudicial nature of the publicity to which the jury was exposed. n183
Never in the history of the military justice system, and perhaps in the history of American courts, has any accused ever
encountered such intense and continuous prejudicial publicity as did the Petitioner herein. Virtually every newspaper,
periodical, magazine, television station, and every other news medium carries continuous and extensive interviews,
reports, pictures, articles, statements, qoutes and editorial comments concerning Peti [*327] tioner's role in the
so-called My Lai incident. n184
Judge Elliot concluded that the record indicated that Calley's trial was "affected by isolatable demonstrated prejudice
and by inherent prejudice" to such an extent that Calley was denied due process. "If there has ever been a case in which
a conviction should be set aside because of prejudicial publicity, this is it." n185
In a concluding section entitled "OBITER," Judge Elliot recounted the historic toleration and use of terror against
civilians by military leaders ranging from General William Sherman in Georgia during the American Civil War to
Winston Churchill and Dwight D. Eisenhower during World War II. n186
The point is that Sherman was absolutely right; not about what he did, but about the nature of war; war is hell and when
we take a young man into the Army and train him to kill and train him to take orders and send him into a strange foreign
land to follow the flag and he then in the wild confusion of combat commits an act which, long after the event, is made
the basis of a capital criminal charge, simple justice demands that he be treated fairly by the press, by his government
and by the branch of the service in which he served. Sadly, it must be admitted that Calley was not accorded such
consideration. Quite the contrary. n187
The Fifth Circuit Court of Appeals, sitting as a thirteen judge court, reversed the District Court by a vote of
eight-to-five and reinstated the verdict of the court-martial. n188 The Court of Appeals determined that much of the
publicity surrounding the My Lai incident was favorable to Calley and a substantial portion of the news reports had
consisted of an objective rendition of the facts. n189 [*328]
The effect of the publicity on the American public in general is of course uncertain, but material contained in the record
belies the district court's conclusion that anyone familiar with the news reports surrounding the My Lai massacre would
automatically convict Calley....We...emphasize that the district judge overlooked important aspects of the record in
reaching his conclusions, and to note that there appears to have been no single sentiment regarding the case held by a
vast segment of the American public. n190
The Court of Appeals pointed out that the publicity surrounding Calley's prosecution had reached a crescendo one
year prior to the trial and that those selected for the jury had been subjected to intense judicial examination and that the
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presiding judge had been convinced of their objectivity. n191 The Court also pointed out that the defense had succeeded
in selecting a jury which was composed of combat veterans. Five of the jurors had served in Vietnam and were familiar
with the stress and inhumanity of ground combat in Vietnam.
To contend that these same men, whose familiarity with circumstances relevant to the case was desired by the
defense, should be disqualified merely because they had heard or read news reports regarding this incident is to ignore
the reality of Calley's trial....If, in the age of instant, mass communication, we were to automatically disqualify persons
who have heard about an alleged crime from serving as a juror, the inevitable result would be that truly heinous or
notorious acts will go unpunished. The law does not prohibit the informed citizen from participating in the affairs of
justice. In prominent cases of national concern, we cannot allow widespread publicity concerning these matters to
paralyze our system of justice. n192
The Court of Appeals also ruled that the military court had utilized all the procedures available to ameliorate potential
prejudice. It delayed the proceeding to permit publicity to abate and permitted extensive voir dire to determine whether
there had been any prejudicial impact from the pretrial publicity. The trial court also took extraordinary efforts to
prevent news reports from reaching the jury. Moreover, the presiding judge had issued an order to all the prospective
witnesses, prohibiting pre-trial disclosure of their [*329] testimony. n193
As to Calley's other objections, the Court of Appeals concluded that the military courts "have fully and fairly
considered all of the defenses made by Calley and have affirmed that he is guilty....No violation of Calley's
constitutional or fundamental rights has occurred, and ...the findings of guilty were returned by impartial members
based on the evidence presented at a fairly conducted trial." n194
Despite the Court of Appeals' affirmance of Calley's conviction, he was paroled in November of 1973 after having
served one-third of his sentence. n195 Lieutenant General William R. Peers, who had retired from active duty, was
quoted as observing that My Lai was " "a horrible thing, and we find we have only man finally convicted and he's set
free have doing a relatively small part of his sentence.' " n196
D. MY LAI AND THE INTERNATIONAL HUMANITARIAN LAW OF WAY
The killings at My Lai clearly violated the international humanitarian law of war. n197 Parties to the the Geneva
Conventions of 1949 undertake "to respect and to ensure respect for the present Conventions in all circumstances." n198
The Geneva Conventions of 1949 apply to "all cases of declared war or any other armed conflict which may arise
between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them." n199
Although one of the parties to a conflict may not be a party to the Geneva Conventions, the powers who are "parties
thereto shall remain bound by it in their mutual relations." n200 The United States as [*330] well as North and South
Vietnam were parties to the Geneva Conventions. n201 Both the United States and South Vietnam had pledged to
respect the conventions during the Vietnam conflict. n202 The North Vietnamese, however, accused enemy forces of
waging a war of aggression which involved the systematic commission of war crimes and refused to recognize the
applicability of the conventions. n203 Nevertheless, the United States and South Vietnam, as signatories, remained
bound by the Geneva Conventions. n204
The application of the Geneva Convention Relative to the Protection of Civilian Persons to My Lai involves a
significant conceptual hurdle. Article 4 states that persons protected under the convention are those who find themselves
in the case of a conflict or occupation "in the hands of a Party to the conflict or Occupying Power of which are not
nationals." n205 Article 4 goes on to recite that "nationals of a co-belligerent State, shall not be regarded as protected
persons while the State of which they are nationals has normal diplomatic representation in the State in whose hands
they are." n206 The residents of My Lai were citizens of South Vietnam and were under the control of the United States,
an allied power. Are the provisions of the Civilian Convention applicable? n207
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Assuming the Vietnam conflict was a civil war between South Vietnamese government and the indigenous forces
of the National Liberation Front (NLF), the general provisions of the Civilian Con [*331] vention would not apply.
Instead, all parties to a conflict "not of an international character," at a minimum, are required to adhere to the provisons
of article 3. n208 Article 3 requires that "persons taking no active part in the hostilities shall in all circumstances be
treated humanely." n209 Various acts "are and shall remain prohibited at any time and in any place whatsoever,"
including violence to life and person, in particular murder, mutilation, cruel treatment and torture; n210 and outrages
upon personal dignity, in particular humiliating and degrading treatment. n211 Article 3(1)(d) prohibits the passing of
sentences and the carrying out of executions without a previous judgment being pronounced by a regularly constituted
court which adheres to all judicial guaranteess which are "recognized as indispensable by civilized peoples." n212
Article 3(2) requires that the wounded and sick shall be "collected and cared for." n213 The prohibitions contained in
Article 3 certainly would encompass the atrocities committed at My Lai.
The United States clearly viewed itself as being involved in an international conflict in which the North
Vietnamese had invaded the South. n214 In such cases, belligerents are prohibited from taking any measures which
cause the physical suffering or the extermination of protected persons who are under their control. This encompasses
murder, torture, corporal punishment and mutilation. n215 Article 33 prohibits collective penalties and reprisals against
protected persons and states that a protected person may not be punished of an offense which he or she did not commit.
n216 Telford Taylor argues that the language of Article 4 did not prevent the [*332] application of the former
provisions to My Lai. n217 Article 4 presumes that civilians do not require the protection of the Geneva Convention
when they are in the hands of a co-belligerent. It is assumed that these civilians can be adequately protected through
diplomatic arrangments. n218 However, Taylor argues that it is doubtful whether the South Vietnamese government was
willing or able to furnish such protection to its nationals who resided in Quang Ngai Province. As a result, he concludes
that the inhabitants of My Lai should be deemed to fall within the protections of the Geneva Convention. n219
Alternatively, Taylor argues that My Lai should be viewed as "hostile territory" which was under the control of the VC.
Under this approach, the residents of My Lai (4) should be viewed as having been "in the hands of a Party to the conflict
or Occupying Power of which they are not nationals." n220
A third approach is possible. Part II of the Convention Relative to the Protection of Civilian Persons, "covers the
whole of the populations of the countries in conflict." n221 Part II, Article 16, provides that the wounded and sick, as
well as the infirm, and expectant mothers, shall receive protection and respect. States Parties also are to assist "other
persons exposed to grave danger, and to protect them against pillage and ill-treatment." n222 Other protections are
extended to children under the age of fifteen. n223 The civilians in My Lai certainly were in grave danger and qualified
for protection under Article 16.
Calley may have believed that those under the control of his forces were illegal combatants. n224 Nevertheless,
there was no firm evidence that those detained at My Lai (4) were illegal combatants. Article 5 of the Geneva
Convention Relative to the Treatment of Prisoners of War requires that individuals are to be treated as prisoners of war
until their status has been resolved by a competent [*333] tribunal. n225 In any event, even those detained as a spy or
saboteur are to be "treated with humanity." n226
High Contracting Parties to the Geneva Conventions were required to enact legislation to provide effective penal
sanctions for persons committing, or ordering to be committed, a grave breach of the convention. An obligation was
placed on each State Party to search for and to prosecute persons alleged to have committed, or to have ordered to be
committed, such grave breaches. Alternatively, these persons may be handed over for trial to another High Contracting
Party. n227 Grave breaches include killing, torture or inhuman treatment or the deprivation of a fair and regular trial,
and the needless destruction and appropriation of property. n228 The United States certainly breached its obligations
under the Geneva Conventions when it paroled Calley and failed to prosecute those involved in the My Lai massacre.
n229
In the past, the United States had not hesitated to prosecute enemy military officials who supervised and engaged
in the type of mass murder of civilians which occurred at My Lai. n230 During World War II, the Nazi regime sent
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Einsatzgruppen squads, or special task forces, into the Soviet Union. Their charge was to exterminate all those who
were viewed as posing a threat to the German [*334] occupation forces. n231 Whole categories of people were
slaughtered-Jews, gypsies, " "Asiatic inferiors,' " the insane and Communist functionaries n232 and prisoners of war.
n233
Those who were to be executed typically were divided into a series of groups. Each group was forced marched in
succession to and made to kneel or stand before a mass grave. As each was executed, the next was led to the slaughter.
Killers typically shot for an hour before being relieved by the next squad. The victims were typically shot in the neck or
in the hand. n234
If what the prosecution maintains is true, we have here participation in a crime of such unprecedented brutality and of
such inconceivable savagery that the mind rebels against its own thought image and the imagination staggers in the
contemplation of human degradation beyond the power of language to adequately portray. The crime did not exclude
the immolation of women and children, heretofore regarded the special object of solicitude even on the part of an
implacable and primitive foe. n235
One must visualize not one million people but only ten persons - men, women, and children, perphaps all of one
family - falling before the executioner's guns. If one million is divided by ten, this scene must happen one hundred
thousand times, and as one visualizes the repetitious horror, one begins to understand the meaning of the prosecution's
works, "It is with sorrow and with hope that we here disclose the deliberate slaughter of more than a million innocent
and defenseless men, women, and children." n236
The leaders of the Einsatzgrupen squad were prosecuted by an American war crimes tribunal and attempted to
justify their conduct on the basis of self-defense. They argued that various groups, such as the Jews, were bearers of
communism and threatened the Reich. However, the Court noted that the defendants had failed to explain how the Jews'
alleged adherence to Bolshevism posed a threat. The defendants also were unable to explicate the reason that those Jews
who were not Bolsheviks were executed n237 or how they [*335] were able to determine which Russians fell into the
prescribed groups. n238 Defendant Franz Six, n239 a university professor who was sentenced to twenty years
imprisonment for his role in compiling lists of those to be executed, "conceded that the execution of women and
children was deplorable, but the killing of male Jews was proper because they were potential bearers of arms." n240
Twenty-one high-ranking German officers were convicted and fourteen were sentenced to death by hanging; two
to life; and three to twenty years in prison; and two to ten years in prison. n241 The Tribunal observed that:
No soldier or officer attempting escape from such a task would be pleading avoidance of a military obligation. He
would simply be requesting not to be made an assassin. And if the leaders of the Einsatzgruppen had all indicated their
unwillingness to play the assassin's part, this black page in German history would not have been written. n242
In the High Command Case, an American war crimes tribunal convicted eleven German officers who passed on
orders which the tribunal adjudged to be criminal on their face. Those staff officers who prepared or directed the
preparation of clearly illegal orders also were adjudged to be culpable. n243 These orders authorized Geman troops to
liquidate enemy troops, partisans and civilians without trial. Hitler's Commissar Order prescribed the killing of captured
Russian political functionaries. n244 The Fuehrer's Commando Order permitted the execution of uniformed and
non-uniformed enemy troops and pilots alleged to be involved in military operations behind German lines. n245 The
Night and Fog Decree authorized the arrest and secret transport to the Reich and execution without trial of individuals
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in the occupied territories who were sus [*336] pected of resistance to the German occupation. n246 The Barbarossa
Jurisdiction Order of 1941 permitted the punishment without trial of enemy partisans and civilians who attacked
German forces or who engaged in criminal activity. The collective punishment of local residents was authorized where
the perpetrators were not able to be quickly identify the perpetrators. The Barbarossa Jurisdiction order also proclaimed
that it was not obligatory to prosecute German soldiers for offenses committed against enemy civilians. n247
The American Tribunal condemned the Barbarossa Order. The Court noted that civilians in the occupied territories
were entitled to "fair treatment" under international law and may not be subjected to arbitrary punishment. The judges
observed that while guerillas may not be entitled to a judicial hearing, the Reich's vesting of discretion in junior officers
to execute suspected partisans and to mete out unlimited collective punishments against civilians also clearly was
illegal. In addition, the immunization of German troops against court-martial for criminal acts against enemy civilians is
contrary to the obligation of the occupying power to safeguard the population under its control. n248 The Tribunal
stressed that the field commanders were not being held liable for a failure to appraise the fine distinctions of
international law. Their criminal responsiblity was based on the transmission and implementation of clearly illegal
decrees, such as Barbarossa Order. The conduct of these defendants resulted in their being complicit in the "summary
execution of persons who were merely suspects or those who, from their acts, were not in fact terrorists at all, such as
the execution of the nineteen year old girl who wrote a singe derogatory of the German invader of her country." n249
Field Marshal Wilheld von Leeb was Commander in Chief of Army Group North during the initial portion of the
Russsian campaign. Von Leeb passed the Barbarossa Order through his chain of command and it was relied on by his
subordinate officers to justify the murder of civilians. In sentencing von Leeb to three years in prison, the Tribunal
proclaimed that "having set this instrument in motion, he must assume a measure of responsibility for its illegal
application." n250 [*337]
The Tribunal observed that the Germans' killing of alleged enemy partisans often was used as a "pretext for the
extermination of many thousands of innocent persons." n251 Hitler noted that " "this partisan war...has some advantages
for us; it enables us to eradicate everyone who opposes us.' " n252 These exterminations were part of Hitler's plan to
eliminate the indigenous populations of Poland and the Soviet Union in order to permit the colonization of these
territories by Germans. n253 Nevertheless, the German defendants in the High Command Case rather ingenuously
contended that these killings were necessary in order to win the war. The Tribunal rejected this argument; "such a view
would eliminate all humanity and decency and law from the conduct of war and it is a contention which this Tribunal
repudiates as contrary to the accepted usages of civilized nations." n254
In the Hostage Case, various German military commanders were charged with unlawfully, willfully and knowingly
commiting war crimes and crimes against humanity. The defendants were alleged to be principles and accessories in the
murder of thousands of civilians in Greece, Yugoslavia, Norway and Albania between September 1939 and May 1945.
n255
Eight of the ten German defendants were convicted for the illegal detention and execution of civilian hostages in
reprisal for armed partisan attacks and sabotage. n256
The evidence in this case recites a record of killing and destruction seldom exceeded in modern history. Thousands of
innocent inhabitants lost their lives by means of a firing squad or hangman's noose, people who had the same inherent
desire to live as do these defendants...Terrorism and intimidation was the accepted solution to any and all opposition to
the German will. It is clear, also, that this had become a general practice and a major weapon of warfare by the German
Wehrmacht. n257
Wilhelm List was the fifth ranking field marshal in the German [*338] Army. He was the Commander in Chief of
the Twelfth Army during the German invasions of Yugoslavia and Greece. In addition, in June 1941, he became Armed
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Forces Commander Southeast with jurisdiciton over the Balkans. n258 List circulated and implemented an order issued
by the Field Marshal Wilhelm Keitel, Chief of the High Command, which provided that one hundred reprisal prisoners
should be shot for each German soldier killed and fifty shot for each German soldier wounded. n259
List neither condemned nor halted these reprisals. Instead, he permitted thousands to be executed by firing squads.
Attacks by armed bands were "avenged by killing innocent inhabitants who had no possible association with the
guilty. Many villages were destroyed and the civilian inhabitants shot without any logical reason at all except to wreak
vengeance upon the population generally." n261 The Tribunal condemned this breach of duty and sentenced List to life
imprisonment. n262 The Court observed that List may have resorted to such extermination to compensate for the
weakness of the occupying German forces. However, absent the necessary troops, it ruled that List should have limited
his operations or withdrawn his troops from Greece. n263 The Tribunal stressed that "the rules of international law must
be followed even if it results in the loss of a battle or even a war. Expendience or necessity cannot warrant their
violation." n264
n260
The defendant Helmuth Felmy was appointed as the Commander in Southern Greece in June 1941. In May 1943,
he was appointed commander of the LXVII Corps. n265 On April 5, 1944, an engagement occurred between partisan
bands and German troops outside the village of Klissura. After the retreat of the Greek guerillas, Nazi troops moved
into the village and began searching for evidence that the inhabitants had assisted the partisans. Later in the day,
German troops returned and began to execute the villagers.
At least 215 persons, and undoubtedly more, were killed. Among [*339] these killed were 9 children less than 1 year
old, 6 between 1 and 2 years of age, 8 between 2 and 3 years, 11 between 3 and 4 years, and 4 between 4 and 5 years.
There were 72 massacred who were less than 15 years of age, and 7 people in excess of 80 years. No justification
existed for this outrage. It was plain murder. n266
In June 1944, troops of the same regiment, the SS Panzer Regiment, entered the village of Distomon and shot
approximately 300 inhabitants. The Tribunal concluded that, like Klissura, that this was "plain calculated murder." n267
Felmy was pressured into an investigation which revealed that the regimental commander had falsified the unit's battle
report in order to cover up the killings at Klissura and Distomon. Felmy recommended that the commander should only
be given a modest punishment in light of the regiment's sterling combat record. The Tribunal concluded that Felmy
"seems to have had no interest in bringing the guilty officer to justice. Two of the most vicious massacres of helpless
men, women, and children appear to have met with complete indifference on his part." n268 The tribunal sentenced
Felmy to fifteen years in prison. n269
The Tribunal in the Hostage Case dismissed the notion that acts of cold-blooded murder may be justified as part of
the exigencies of war. n270
There is a general feeling that excesses occur in all armies, no matter how well disciplined, and that military trials are
held to convict the war criminals of the vanquished while those of the victor are cleansed by victory. Unless civilization
is to give way to barbarism in the conduct of war, crime must be punished... If the laws of war are to have any
beneficent effect, they must be enforced. n271
II. THE MY LAI MASSACRE AND THE LAW OF WAR
A. WAR AND MASSACRE
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The prosecution and conviction of Lieutenant William L. Calley provided reassurance that the United States
adhered to the law of war in Vietnam. The law of war not only provides a standard by which the conduct and culpability
of combatants is determined, it is [*340] a prism through which perceptions of war are shaped. War tends to be viewed
as a dangerous, but deliberate and organized enterprise in which troops are marshalled, manipulated and manuevered.
Civilians are insulated from deliberate harm and unnecessary violence is minimized. The parole of William Calley,
however, may be indicative of the general subordination of law to the exigencies of military combat. n272
J. Glenn Gray, in his classic essay on World War II, observes that the restraints on warfare have disappeared.
Modern war is a religious crusade, an ideological mission in which the very future of a nation and its people is
threatened. n273
Even in democratic lands, soldiers are systematically trained "to fight dirty," which means to disregard all civilian rules
of fair play. "Never give your enemy a chance" is the byword of this training....Nowadays, we quickly reach, by the
benefit of propaganda, that terribly simplified morality with a single absolute: "Any act that helps my side win the war
is right and good, and any act that hinders it is wrong and bad."... War has lost its former character of a deadly game,
and becomes increasingly a struggle for national survival, in which all moral principles except the one concerning
victory are strategic instruments. n274
Animated by a moral mission to eradicate evil, the soldier is trained to kill without compunction or regret. n275 The
enemy are viewed as representatives of a set of reprehensible ideals, not mere human beings. n276 This vituperative
vision dictates the total subordination of the enemy, their ideals and way of life. This drive towards annihilation
demands the destruction of the enemy's entire industrial and urban infrastructure and inevitably leads to civilian
fatalities. n277
Paul Fussell pierces the veil of romanticism which shrouds the popular view of war. Fussell writes that modern war
is so brutal that after 200 to 240 days that even the most resilent combatants deteriorate psychologically. n278 Fussell
recounts that in six weeks of fighting in Normandy that the 90th Infantry Division had to replace 150 percent of its
officers and over 100 per cent of its troops. Over [*341] the course of three months in combat, all of a division's 132
second lieutenants likely would be wounded or killed. n279 Fussell, a World War II combat veteran, describes the
corpses and decaying flesh: a world in which "it is likely for the man next to you to be shot through the eye, ear,
testicles or brain...or through the shoulder. A shell is as likely to blow his whole face off as to lodge a fragment in some
mentionable and unvital tissue." n280
In this violent environment, legal restraints inevitably become overwhelmed by revenge, retribution and the
instinct for survial. This is vividly recounted by John Dower in his account of the conflict between the Allies and the
Japanese for supremacy in the Pacific during World War II. n281 The Japanese fueled hatred by their tactics. They
allegedly brutally treated their prisoners of war and the civilian population. Such protected persons were
machine-gunned, decapitated, drowned and occasionally doused with gasoline and ignited. The Japanese reportedly
bound and bayonetted some fifty British officers and men during their takeover of Hong Kong. n282 One war
correspondent described the United States' violent response.
We shot prisoners in cold blood, wiped out hospitals, strafed lifeboats, killed or mistreated enemy civilians, finished off
the enemy wounded, tossed the dying into a hole with the dead, and in the Pacific boiled the flesh off enemy skulls to
make table ornaments for sweethearts, or carved their bones into letter openers. n283
The Americans reportedly took great pride in accumulating battlefield trophies, including gold teeth, ears, bones, scalps
and skulls. n284
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Beginning in March 1945, the United States initiated the carpet-bombing of sixty-six Japanese cities. In the first
raid, sixteen square miles in Tokyo were destroyed, a million were rendered homeless and between eight and one
hundred thousand civilians were scorched to death. The heat from this attack was so intense that canals boiled, metal
melted and buildings and human beings [*342] burst spontaneously into flames. It reportedly took twenty-five days to
remove all the dead from the ruins. This bombing campaign culminated in the dropping of the atomic bomb on
Hiroshima and Nagasaki. A total of four hundred thousand Japanese civilians were killed in the American bombing
raids. n285 Following the war, a fifth of Americans regretted that Japan had surrendered and had denied the Americans
the opportunity to drop additional bombs on their former enemy. n286
It is not surprising that soldiers who are trained to kill are able to engage in such atrocities. In his infamous electric
shock experiments, psychologist Stanley Milgram found that two-thirds of the participants were " "obedient subjects' "
who would willfully comply with the dictates of authority. These participants were not psychological deviants, they
were ordinary individuals who represented a cross-section of society. n287 Milgram's fundamental insight is that:
Ordinary people, simply doing their jobs, and without any particular hostility on their part, can become agents in a
terrible destructive process. Moreover, even when the destructive effects of their work become patently clear, and they
are asked to carry out actions incompatible with fundamental standards of morality, relatively few people have the
resources needed to resist authority. A variety of inhibitions against disobeying authority come into play and
successfully keep the person in his place. n288
Significantly, the instructors in the Milgram experiments only exerted moral authority. They did not possess the
legal authority of military officers and the volunteers were functioning in a relatively relaxed and serene environment
without the expectations, fear and tension of war. Thus, the tendency for individuals to obey the dictates of authority
can be expected to be exaggerated during combat. n289 Milgram, in fact, views his findings as crucial for [*343]
understanding the atrocities which occurred in Vietnam and at My Lai. n290
He a soldier has been told he kills others in a just cause. And this definition comes from the highest sources - not merely
from his platoon leader, nor from the top brass in Vietnam, but from the President himself. Those who protest the war at
home are resented. For the soldier is locked into a structure of authority, and those who charge that he is doing the
devil's work threaten the very psychological adjustments that make life tolerable. Simply getting through the day and
staying alive is chore enough; there is no time to worry about morality. n291
Milgram's general findings on the reflex towards obedience is supported by Philip G. Zimbardo's experiment in
which he simulated prison conditions. The mock prison experiment was terminated after six days. Zimbardo and his
colleagues were "horrified because we saw some boys (guards) treat others as if they were despicable animals, taking
pleasure in cruelty, while other boys (prisoners) became servile, dehumanized robots who thought only of escape, of
their own individual survival and of their mounting hatred for their guards." n292
These studies are enormously valuable in helping to understand the capacity of ordinary combatants to commit
atrocities. n293 Christopher Browning studied the middle-aged, working-class conscripts who comprised one German
killing squad in occupied Poland. n294 Most had been educated and had lived their formative years in pre-Nazi
Germany. n295 Browning finds that their capacity to kill Jews was only partially explained by their ideological
indoctrina [*344] tion. n296 The major impetus for their behavior, according to Browning, was the desire to conform
and to carry out what they viewed as their responsibility to their fellow soldiers. He argues that a refusal to shoot would
have served as a moral reproach to the other soldiers and would have led to their isolation and ostracism. n297 Under
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these circumstances, even the boldest individuals only would risk small acts of dereliction or oversight.
n298
Psychologist Robert Lifton has analyzed the My Lai massacre in psychiatric terms. Lifton views My Lai as the
almost inevitable product of the events to which Calley and his men were subjected. Throughout basic training, the
implicit and explicit message was that " "It's okay to kill them...you've gotta go to Vietnam, you've gotta kill the gooks.'
" n299 Lifton recounts that the initial combat experience of Calley and his men involved a series of hit-and-run attacks
in which the American guerilla hunters were reduced to the vulnerable prey of the seemingly invisible and omnipresent
Vietnamese. The wounding and killing of members of C Company helped to fuel a sense of guilt and revenge among
the members of the platoon. Following several ambushes, four men were killed and twenty-eight were severely
wounded in a minefield disaster. According to Lifton, Calley and his men began to feel isolated, assailed, came to view
all Vietnamese as the enemy and fantasized about exterminating the "gooks." n300
Finally, Sergeant Cox, an older popular combat veteran was blown to pieces by a booby trap. Lifton argues that
Cox's brutal death exacerbated the Company's sense of fear, loss and rage. Cox's memorial service was conducted prior
to Medina's pre-invasion speech to C Company. Medina prefaced his instructions by invoking Cox's memory and urged
his men to gain retribution for Cox's death. n301
Whatever Medina's actual words, his eulogy-pep talk provided the men with a concrete "survivor mission" that gave
signficance to deaths being mourned. Now they had a psychological link be [*345] tween the deaths that had so
overwhelmed them and the actions they could take in order to reconstitute themselves. n302
Medina seemingly did not give a direct order to kill. However, according to Lifton, Medina invoked images of
destruction, poisoning and killing which unleashed the troops' subterranean urge to slaughter the Vietnamese. n303
Lifton observes that Calley's platoon began killing almost immediately after entering into My Lai (4). The troops'
vision of slaughter was translated into reality - homes were ignited, animals were slaughtered and the inhabitants were
raped and shot. The slaughter was further fueled by the urging of zealots like Calley. During this entire process, Lifton
notes that the men behaved as if they were in a combat situation. Many kneeled and crouched in a shooting position as
the soldiers engaged in "the illusion, however brief, that in gunning down old men, women and babies, they had finally
"engaged the enemy' - had finally got him to "stand up and fight.' " n304
Lifton concludes that:
slaughter was the norm...that it was psychologically necessary and felt psychologically right...in this sense the whole
massacre was a "natural" consummation of the collective "survivor mission" and accompanying image of slaughter.
Once begun, the slaughter was self-perpetuating; each expression of it confirmed and strengthened the overall image.
Carrying the massacre through to the end was related not only to completion or consummation but also perphaps to an
impulse, at whatever level of consciousness, not to leave survivors to tell the tale. n305
The overall impact of the slaughter was to remove the burden of guilt from Company C and to raise their morale.
However horrific, Lifton concludes that "one had to be a bit exceptional or, in that situation "abnormal,' in order to
avoid taking part in the slaughter." n307 The one platoon member whom Lifton identifies as having not participated in
the slaughter, was a highly professional soldier who had been critical of the unit's treatment of the Vietnamese. n308
This platoon member, however, came to view him [*346] self as maladjusted for having refused to kill the Vietnamese
at My Lai. Lifton notes that an "inverted morality" had developed within the platoon in which the individual who had
refused to shoot was able to view himself as a "nut." n309
n306
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Calley's conduct certainly was not viewed as abormal by most Americans. Following Calley's conviction, a
telephone poll indicated that seventy-nine percent disapproved of the verdict and nine percent approved. n310 There is a
large gap between attitudes and conduct. Nevertheless, some indication of the prevailing attitude towards Calley's
actions at My Lai is indicated by a poll which revealed that sixty-seven percent of respondents believed that most
people would follow orders to shoot all the inhabitants of a village suspected of aiding the enemy, including the elderly,
women and children. Nineteen percent believed most people would refuse to shoot. Fifty-one percent stated that they
would follow orders to shoot; thirty-three percent stated that they would refuse to fire. Sixty-one percent of respondents
stated that assuming that Calley had received orders to shoot that he should have carried them out. Twenty-nine percent
replied that he should have refused to carry them out. n311 In reviewing these results, social psychologists Herbert C.
Kelman and Lee H. Lawrence conclude that
these findings suggest that a large segment of the population...regards Calley's actions as normal. They believe that most
people would do what Calley did under similar circumstances, that they themselves would do so, that Calley did what
he should have done, that his action was right and in keeping with his duty... n312
[*347]
B. VIETNAM AND THE LAW OF WAR
The United States imposed a rigid set of legal strictures on American troops in Vietnam. The Military Assistance
Command Vietnam (MACV) promulgated a series of directives and regulations to guide all phases of military
operations and training. Upon arriving in Vietnam, the American troops received information cards which were to be
kept in their possession which set forth the requirements of the law of war. n313 The Rules of Engagement (ROE) were
the central guiding directives on the deployment of artillery and firepower. General William Westomoreland stressed
that the ROE were based on the principle that "it is extremely important that we do all we can to use our fires with
discrimination, and avoid noncombatant battle casualties....Every civilian killed is a calamity, and we must cut the
percentage to the minimum." n314
Even those who were supportive of American involvement in Vietnam recognized that the United States did not
adhere to the law of war. In his classic memoir, Philip Caputo writes that Vietnam was "a war for survival waged in a
wilderness without rules or laws." n315 Caputo writes that:
It was common knowledge that quite a few captured VC never made it to prison camps; they were reported as "shot and
killed while attempting to escape." Some line companies did not even bother taking prisoners; they simply killed every
VC they saw, and and a number of Vietnamese who were only suspects. The latter were usually counted as enemy dead,
under the unwritten rule "if he's dead and Vietnamese, he's VC." n316
In a survey of army generals who served as commanders in Vietnam between 1965 and 1973, only twenty-nine of
the one hundred respondents stated that the rules of engagement were well understood throughout the chain of
command. Only nineteen stated that the the rules of engagement were carefully adhered to through [*348] out the
Command structure. n317 An inspection of United States Army troops in Vietnam in May-June 1969, revealed that
roughly fifty percent had not received training in the law of war. n318 Even when the troops received legal training, the
message was clear that these rules were of little relevance. Robert Lifton reports witnessing the last lecture given to
troops before they departed for Vietnam. The officer who addressed the troops caressed a rabbit throughout his talk. At
the completion of the lecture, the officer killed, skinned and disembowled the rabbit and threw its guts into the
audience. The message was apparent - there was no room for compassion in Vietnam. n319
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United States personnel in Vietnam were under orders to report war crimes to higher authorities. n320 However,
officers rarely took notice of such acts. n321 The killing of Vietnamese civilians was rarely reported. Platoon leaders
were under pressure to accumulate body counts and were fearful of revealing that they had been derelict in their duty or
complicit in a war crime. As a result, such killings usually were recorded as " "1 VC suspect shot while evading.' " n322
An officer who ordered the destruction of a village from which his platoon had received sniper fire likely "would use
the existence of family shelters dug by most villagers in Vietnam in order to report the incident as having taken place in
a fortified hamlet where the burning of the huts was the unavoidable by product of destroying enemy bunkers and
fortifications." n323 Lieutenant Colonel Anthony B. Herbert, a decorated combat veteran, reportedly was relieved of his
command after filing war crimes charges against his superior officers. n324 Herbert compared the filing of formal war
crime charges by an officer in Vietnam to " "one of the gunmen calling up the head of the Mafia and saying, "Hey,
tomorrow let's all go to the police,' or, "I'd like to go to the police and talk.' How long do you think that fellow's going to
last...I mean, really.' " n325
Carl E. Creswell, an Episcopalian chaplain who resigned after [*349] a tour with the Americal Division, reported
to Seymour Hersh that, " "I became absolutely convinced that as far as the United States Army was concerned, there
was no such thing as murder of a Vietnamese civilian.' " n326 Lieutenant Colonel Warren J. Lucas, the Americal
Division Povost Marshal who served as the unit's chief law enforcement officer, recounted that most of his
investigations involved the theft of goods or money from civilians and the occasional rape of a prisoner of war at an
interrogation center. There simply were no allegations that civilians had been murdered during combat operations.
Homicide investigations required the approval of the Division's commanding officer and, at any rate, Lucas noted that it
was virtually impossible to send investigators out to a village which was in the middle of a combat operation. n327
Civic Affairs Officers usually were ordered to rebuild hamlets which had been burned down without clearance.
Cash payments of roughly thirty-three dollars for each adult and sixteen dollars for each child were made to the
Vietnamese victims of shootings. n329 The command usually responded to war crimes by issuing directives rather than
ordering investigations and prosecutions. n330 The Army blamed the increasing number of war crimes allegations on
the fact that instruction in the Geneva Conventions was abstract and academic rather than concrete and practical. As a
result, a film was produced which stressed the proper treatment of prisoners and which was intended to assure the public
that captives were being humanely treated. n331
n328
The fact was that war crimes were inevitable in the type of counter-insurgency war being waged by the United
States. The statistical imbalance between the weapons captured and the number of Vietnamese dead clearly indicated
that a large number of civilians were being killed. n332 Brigadier General Andy A. Lipscomb, formerly commander of
the 11th Brigade, told the Peers panel that " "anything that was shot was a VC. I think that generally was the [*350]
accepted modus operandi over there....I don't think that they went to a great deal of trouble to distinguish between men
and women.' " n333 Oran Henderson, Lipscomb's successor as commander of the 11th Brigade, noted that " "every
unit...has its My Lai hidden some place...although every unit doesn't have a Ridenhour.' " n334
One of the most highly touted colonels in Vietnam between 1967 and 1968, was George Patton III, son of the the
famous World War II hero, who was commander of the 11th Armored Cavalry Regiment in South Quang Ngai. Patton's
motto reportedly was " "Find the bastards and pile on.' " n335 He exorted his men prior to combat that " "I do like to see
the arms and legs fly.' " n336 Patton commemorated Christmas 1968 and peace on earth by sending cards with a color
photograph of dismembered Viet Cong soldiers stacked in a neat pile. When Patton left Vietnam, he organized a
farewell party. During the festivities, he wore a peace medallion and carried a polished skull with a bullet above the left
eye. In September 1969, Colonel Patton became one of the youngest officers to be promoted to brigadier general. n337
The Americans attitude towards the Vietnamese was revealed in their humor. Seymour Hersh reports that an
often-heard joke among the Marines in Quang Ngai recited that the loyal Vietnamese should all be put out to sea in a
raft. Those who were left should then be killed and the nation paved over with concrete, like a parking lot. The raft then
should be sunk. n338 The GIs in Quang Ngai also joked that " "anything that's dead and isn't white is a VC.' " n339
These jocular remarks captured the stark reality of Vietnam. Noam Chomsky surveyed the history of American combat
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and Vietnam and concluded that:
The American war in Indochina is a record of war crimes and crimes against humanity, a record of mounting
horror....Since [*351] 1961-62 American forces have been directly involved in bombing, strafing, forced population
removal of millions of peasants, crop destruction and defoliation, destruction of agricultural lands and the irrigation
system. The land is pockmarked with millions of bomb craters. Lumber operations are impossible in forests where trees
are riddled with shell fragments. Some six and one-half million acres have been defoliated with chemical poisons, often
applied in tremendous concentrations....About one acre in six has been sprayed by defoliants. n340
C. THE PROSECUTION OF WAR CRIMES
A review of the few reported court-martial decisions illuminates the type of brutalities which characterized the
American war effort. Significantly, few prosecutions involved large-scale combat operations and most defendants
received relatively lenient sentences. In United States v. Duffy, n341 First Lieutenant James B. Duffy was convicted of
conspiracy to murder and of the murder of a Vietnamese POW. Duffy testified that he had been instructed by his
commanding officer to kill a civilian detainee who was suspected of being a Viet Cong operative. Duffy also alleged
that he was directed to report that the prisoner had been shot while attempting to escape. This, according to Duffy, was
the customary euphemism which was used to justify the killing of a detainee. Pursuant to these orders, Duffy ordered a
sergeant to execute the detainee and the sergeant and Duffy then dutifully reported that the prisoner had been shot while
attempting to escape. No witnesses were able to corroborate Duffy's version of the incident. The sergeant who shot the
prisoner was acquitted by reason of insanity. n342
The court-martial record is replete with testimony from Duffy's fellow officers describing the intense pressure
which was placed on them to accumulate high body counts. The officers also expressed frustration over the fact that
those prisoners who were evacuated often were later released. n343 The court-martial, in order to avoid a mandatory life
sentence, convicted Duffy of involuntary manslaughter n344 and meted out what the Court of Military Review
characterized as the "lenient sentence" n345 of confinement for six [*352] months and forfeiture of 250 dollars per
month for six months. n346 The Court of Review rejected the argument that Duffy's action was justified based upon the
expectation that unit's accumulate high body counts. The Court stated that "we decline to equate the importance of one
man's life with another man's efficiency rating." n347
In United States v. Crider, n348 Crider, a twenty year old Marine, was engaged in operations against the Viet Cong
on a regular basis between October 1968 and March 1969. His squad was under severe stress and operated under
constant harassment from snipers, with limited provisions and nourishment. The squad reportedly was reaching mental
exhaustion in March 1969, when Crider witnessed the death of a member of the squad by sniper fire. n349
On March 1, 1969, Crider was part of a nine man patrol which apprehended four children suspected of having
warned the Viet Cong of the approach of the Americans. The children - an eleven year old boy and three girls ranging in
age from thirteen to nineteen - were tied and gagged. A number of the soldiers then left to conduct a sweep of the area.
Crider and the corporal in charge of the platoon then moved the children to a clearing where Crider stabbed and beat
them to death. Crider remarked to one platoon member that " "I stabbed them once in the throat and I bashed their skulls
in....These gooks are hard to kill.' " n350
Crider was convicted of four counts of premeditated murder and sentenced to life imprisonment. The
Commmanding General of the III Marine Amphibious Force then reduced Crider's sentence to hard labor for three
years, forfeiture of pay, and a dishonorable discharge. n351 The Court of Military Review ruled that Crider's discharge
from the Marines was not warranted. The Court stated that it reached this decision after carefully considering Crider's
"exemplary civilian and military record...and after reviewing the almost unbearable prolonged combat conditions to
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which he had been exposed and which served to trigger these events."
n352
In United States v. Goldman n353 Goldman's unit captured a [*353] number of prisoners, including two female
nurses. n354 The female detainees were subject to multiple rape, sodomy, and other mistreatment. A male VC detainee
was ordered to shoot one of the nurses in the neck. An American GI then shot and killed the nurse. Goldman, as
commanding officer, was informed that " "some gink grabbed a rifle and shot one of the nurses.' " n355 Goldman was
convicted of having failed to report and concealing the nurse's death. n356
The Court of Review determined that Goldman had "full knowledge" of the incident which ocurred within sixty
feet of his bunker. In fact, the Court noted that Goldman had remarked to one of his men that if the American authorites
learned of what had occurred that they all would " "swing for it.' " n357 In reviewing Goldman's sentence of a reprimand
and a fine of 2,500 dollars, n358 the Court of Review noted that Goldman's father was a retired veteran and that
Goldman was an outstanding commander who was serving his second tour in Vietnam. n359
In United States v. Griffen, n360 Sergeant Walter Griffen was attached to a platoon of the First Cavalry Division
which apprehended a Vietnamese male who was suspected of being a member of the Viet Cong. The platoon leader
received orders to kill the prisoner. This order was passed on to Griffen who, along with another GI, shot and killed the
prisoner with M-16 rifles. n361 The Court ruled that the order to kill the prisoner was palpably illegal and rejected
Griffen's superior orders defense. n362
The officers who allegedly ordered the killings were acquitted. One other GI complicit in the killing was sentenced
to three years at hard labor while the other assailant was sentenced to one year at hard labor. Griffen's sentence was
reduced from seven n363 to two years at hard labor and forfeiture of all pay and allowances. The Tribunal explained that
Griffen was an eight year veteran who had found himself in a rapidly unfolding series of events. The general confusion
surrounding the situation, in the view of the Court, added [*354] credence to his claim that he acted without reflection
and in honest obedience to superior orders. The judges also noted that Griffen had testified against one of the other
participants in the killing and that he was " "intrinsically remorseful and has a fervent desire to be rehabilitated.' " n364
In United States v. Potter, n365 the accused, Private First Class John D. Potter, was convicted of two counts of
premeditated murder, one count of rape, and one count of attempted rape. The trial court sentenced Potter to a
dishonorable discharge, forfeiture and reduction in pay, and to confinement at hard labor for life. n366 A nine man
raiding squad was organized under the command of a platoon sergeant. Potter instructed the patrol to remove and cover
their identifying insignia and urged the men " "to beat up the people, tear up the hooches, rape, and kill if necessary.' "
n367
The squad entered a village and immediately went on a rampage. Together with three others, Potter gang-raped a
young woman. An elderly man and woman and a younger woman then allegedly were gunned down by three soldiers.
One of the women was found to be alive and was killed by Potter at point-blank range. Potter than attempted to conceal
the killings by igniting a grenade. n368 Potter later returned to the village and killed a young baby by striking the infant
with the butt plate of his rifle. n369
The rape victim survived and testified against Potter:
"They began to rape me." "They were four times, I could not see, but I can know four times I been raped."
"After I was raped - I heard my husband screaming and an American came into my husband hit him again and he
screamed with a big voice and they shoot him." "I heard some rifle shots and one explosion, I was laying on the ground
where I was raped."
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After the shooting - the witness came into the court. "I saw my mother-in-law, my husband, my baby were dead,
and I pick up my baby and I saw my sister-in-law's child were also dead." n370
[*355]
The military justice system seemingly evinced greater regard for the plight of American soldiers than for the
Vietnamese. In Crider, despite the uncontroverted evidence that the defendant brutally murdered four Vietnamese
juveniles, the eight members of the court martial panel signed a petition urging clemency. Seven of the eight also urged
that Lance Corporal Crider should be retained in the Marine Corps. n371 Military judges shared and promoted the very
preconceptions and prejudices towards Vietnamese civilians which encouraged atrocities. In Potter, the Tribunal noted
that Vietnam "was a setting where the native civilian friend by day, became by night, a treacherous betrayer, who leads
the enemy into the heart of the villages, sometimes concealing him, and sometimes aiding him to sew booby traps and
to lay the mine. ...We are aware of and consider with great sympathy the feeling of a single Marine who has lost a
"buddy' by reason of such treachery." n372 The judges also expressed sympathy for the dilemma of the officer who must
determine whether to trust the Vietnamese or to treat them as "foe presumptive and deal with them according to the law
of self defense." n373 Under these circumstances, the Court concluded that the combatant must be given the benefit of
the doubt since the battlefield is not a "debating ground. It is singularly a place for action." n374
The foregoing cases were the exception. There were relatively few war crimes prosecutions. Between January 1,
1965 and September 25, 1975, only 241 allegations of war crimes were lodged against United States Army personnel,
seventy-eight of which were substantiated. n375 Thirty-six cases, involving sixty-one men, were referred to
court-martial and convictions were obtained in twenty cases, involving thirty-one men. n376 Nine of these were
convicted of murder or manslaughter; three of rape; three of mistreatment of prisoners and detainees; and five of
mutilation. n377 [*356]
Officers were treated more leniently than were enlisted men. Fifty-two percent of enisted men with substantiated
allegations of war crimes lodged against them were tried by court-martial, and of these, fifty-one percent were
convicted. Only thirty percent of officers were tried by court-martial and only thirty-six percent of the officers subjected
to trial were convicted. n378
The sentences meted out to those who committed war crimes in Vietnam were lower than those imposed by
court-martials in Europe or in the United States. For example, between 1967 and 1969, Army personnel in Europe and
the United States received an average sentence of twenty-nine years in prison for premeditated murder and close to
thirteen years in prison for unpremeditated murder. In Vietnam, between 1965 and 1970, the average sentence for the
premeditated murder of a Vietnamese was sixteen years and for the unpremeditated murder of a Vietnamese the average
sentence was close to ten years. Thus, the killing of a Vietnamese civilian was viewed as a "somewhat less grave
offense than the unprovoked killing of a German, Frenchman, or fellow American in a situation where servicemen did
not labor under the severe tension produced by a counterinsurgency war." n379
Whatever the explanation for these lighter sentences, Lewy concludes that the "sentences adjudged by courts'
martial in Vietnam at times were so light as to eliminate any deterrent effect." n380 The review process resulted in a
further reduction of these sentences. Guenter Lewy analyzed the sentences of twenty-seven marines convicted of the
murder of a Vietnamese. The average sentence served by the twelve marines who were sentenced to confinement at
hard labor for life was 61/2 years. The defendants only served their full sentence in four of the twenty-seven cases, all of
[*357] which involved terms of five years or less. n381
In view of the viciousness of some of the crimes, resulting in sentences of 20 years or more in 18 of the 27 cases, the
leniency demonstrated in the review process was bound to lead to complaints that such actions amounted to disregard
for the rule of law and weakened the deterrent effect of punishment. n382
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In sum, war may be an inevitably brutal enterprise which is conducted in contravention of the humanitarian law of
war. Powerful psychological forces may make atrocity inevitable. In Vietnam, the United States maintained a pretense
of legality. The fact is that the war was conducted with little attention to the requirements of the law of war. In those
few cases in which individuals were court-martialed, they generally received relatively lenient sentences. These
prosecutions permitted the United States to symbolically affirm its commitment to human rights and the rule of law.
This enabled American decision-makers to distinguish themselves from the totalitarian communist enemy whose
callous disregard for human rights was invoked as a justification for American intervention into Vietnam. n383
III. CONCLUSION
A. THE HIGHER ILLEGALITY
The acts of individual combatants, such as William Calley, must be seen as a logical extension of United States
strategy in Vietnam. The focus on Calley merely detracted attention from the culpability of American decision-makers.
Journalist Francis Fitzgerald observes that by adopting certain strategies and weapons that United States officials were
"denying many of its soldiers and field officers the very power of choice over killing civilians. It was making some
civilian deaths inevitable." n384 Historian Gabriel Kolko notes that: [*358]
The U.S. has made South Vietnam a sea of fire as a matter of policy, turning an entire nation into a target. This is not
accidental but intentional and intrinsic to the U.S.'s strategic and political premises in the Vietnam War. By necessity it
destroys villlages, slaughters all who are in the way, uproots families, and shatters a whole society." n385
General William DePuy, who was instrumental in designing the war of attrition against the Vietnamese,
proclaimed that " "the solution in Vietnam is more bombs, more shells, more napalm...till the other side cracks and
gives up.' " n386 General Westmoreland agreed with DePuy that the United States must " "stomp' the enemy to death."
n387 When asked whether he was concerned over the large number of civilian casualties from air strikes and artillery
shelling, Westmoreland reportedly conceded that it was a " "problem...but it does deprive the enemy of the population,
doesn't it?' " n388
American decision-makers candidly weighed the human costs of various military tactics. John T. McNaughton, a
Pentagon official who privately opposed American intervention, argued in a memo that attacks on population targets in
North Vietnam were likely to create revulsion against the war and might provoke China and the Soviet Union to enter
the conflict. McNaughton proposed, as an alternative, that the United States attack locks and dams.
Destruction of locks and dams, however - if handled right - might...offer promise....Such destruction does not kill or
drown people. By shallow-flooding the rice, it leads after time to widespread starvation (more than a million?) unless
food is provided - which we could offer to do "at a conference table." n389
Daniel Ellsberg writes that policy-makers distanced themselves from the consequences of their decisions by
invoking euphemisms such as such as " "salami-slice' bombing program," " "water-drip technique,' " and " "turn of the
screw.' " n390 He recounts that upon reading this language that his wife exclaimed in horror that his was [*359] the "
"language of torturers.' " n391 Richard Barnet, himself a former Pentagon official, notes that such sterile language is
essential in order to "obscure the reality of bureaucratic homicide....Emotional distance from the homicidal
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consequences of his planning is essential to the mental health of the planner and bureaucratic language is rich in the
terminology of obfuscation." n392
By the end of 1969, the United States had used a volume of air ordinance in Vietnam and Laos which was twice as
large as that dropped by the United States during World War II. Seventy tons of ordinance had been dropped for every
square mile of North and South Vietnam; over five hundred pounds had been dropped for every person in Vietnam. The
ratio of American to enemy ordinance was four and fifty-to-one. Senator William Proxmire characterized the impact of
the United States assault as equivalent to a nuclear attack on the people of Vietnam. n393 Roughly ten civilians were
being wounded or killed for every enemy casualty. n394 Civilian casualties amounted to approximately twenty-five
thousand per year, an average of sixty-eight adults and children each day. Roughly fifty thousand noncombatants were
seriously wounded during each year of the war. n395 Noam Chomsky, writing in 1971, records that:
In South Vietnam, perphaps half the population has been killed, maimed or driven from their homes. In Laos, perhaps a
quarter of the population of about three million are refugees. Another third live under some of the most intense
bombardment in history. Refugees report that they lived in caves and tunnels, under bombing so intensive that not even
a dog could cross a path without being attacked by an American jet....Villages were moved repeatedly into tunnels
deeper and deeper in the forest as the scope of the bombing was extended. n396
The high-echelon command staff of the United States Army and the executive branch certainly were aware that
their strategies and tactics were resulting in heavy civilian casualties. n397 They stand [*360] criminally liable for
these deaths. In In Re Yamashita, n398 in 1946, the United States Supreme Court affirmed the conviction of Tomoyuki
Yamashita, who had served as the Commanding General of the Fourteenth Army Group of the Imperial Japanese Army
in the Philippines Islands between October 1944 and September 1945. Yamashita was held liable for unlawfully
disregarding and failing to discharge his duty as a commander to control the operations of the members of his
command. n399 Yamashita was not charged with personally committing any criminal act. However, his dereliction
allegedly permitted the Japanese troops " "to commit brutal atrocities and other high crimes against people of the United
States and of its allies and dependencies, particularly the Philippines; and he...thereby violated the laws of war.' " n400
Yamashita's troops allegedly killed more than 25,000 civilians and engaged in the wholesale pillaging and destruction
of homes, settlements and religious monuments. n401
The Supreme Court reasoned that the control of military operations by a commander is essential in order to protect
civilians and prisoners of war from brutality. The law of war, according to the Court, thus "presupposes that its violation
is to be avoided through the control of the operations of war by commanders who are to some extent responsible for
their subordinates." n402 The Court went on to rule that the law of war imposes on a high-level official "an affirmative
duty to take such measures as were within his powers and appropriate in the circumstances to protect prisoners of war
and the civilian population." n403 In affirming Yamashita's conviction, the Court did not specify what measures
Yamashita may or could have taken to discharge his affirmative duty to prevent the commission of war crimes. n404
Justice Murphy, in dissent, ominously warned that the Supreme Court's decision would one day result in the imposition
of criminal liability on American civilian and military leaders. "Indeed, the fate of some future President of the United
States and his chiefs of staff and military advisers may well have been sealed by this decision." n405 [*361]
The criminality of the United States' leadership in Vietnam provoked a moral crisis for many Americans. Daniel
Ellsberg, who turned against the war and left the Pentagon, queried:
How could such respected, humane, liberal people - and through them, all of us - have been involved in the burning of
villages; herbicides; defoliation; torture; the creation of millions of refugees; air and ground invasions; and the dropping
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of over six million tons-six megatons,...of explosives from the air, and another six million tons of artillery shells, on the
people of Indochina since 1965? n406
Ellsberg wrote that for Americans to watch the war on television was to "see ourselves in the mirror: to find us doing
monstrous things." n407 English philosopher Bertdran Russell convened an international war crimes tribunal to
investigate American conduct in Vietnam. In his opening address, Russell charged that in Vietnam "we have done what
Hitler did in Germany." n408 Russell later sadly concluded that "the term genocide truly encompasses the enormity of
American crimes in Vietnam." n409
These damning conclusions were dismissed by Townsend Hoopes, an adviser to Lyndon Johnson. Hoopes wrote
that President Johnson and his advisers were not evil. Instead, he noted that they were among the "ablest, the best, the
most humane and liberal men that could be found for public trust." n410 He admonished critics to avoid the "destructive
and childish pleasure of branding as deliberate criminals duly elected and appointed leaders who, whatever their human
failings, are struggling in good conscience to uphold the Constitution and to serve the broad national interest according
to their lights." n411
The mass of Americans shared Hoopes' refusal to accept the criminality of United States policy and the culpability
of American leaders. Robert Lifton notes that the public coped with American [*362] atrocities in Vietnam by
engaging in denial, rationalization and self-righteous anger. n412 Calley's conviction was greeted by condemnatory
Congressional comments, the resignation of draft board members and verbal attacks against the members of the court
martial. n413 In the three days following Calley's conviction, a record entitled "The Battle Hymn of Lt. Calley" sold two
hundred thousand copies and was regularly played over the armed forces radio network in Vietnam. n414 The Governor
of Georgia, Jimmy Carter, who later was to ascend to the presidency, organized an " "American Fighting Men's Day.' "
Carter exhorted the citizens of Georgia to turn their automobile headlights on in order to " "honor the flag as "Rusty' had
done.' " Vice President Spiro Agnew seemed to speak for most Americans when he criticized the Calley verdict and
proclaimed that decisions made in combat should not be "subject to Monday morning quarterback judgments by
someone sitting comfortably in an office in Washington." n415 In short, Americans, like the military, refused to accept
responsibility for their country's conduct in Vietnam. n416
B. CONCLUSION
The prosecution and conviction of Lieutenant William. L. Calley for murder raises troubling questions concerning
the application of law to military conflict. Calley was a standard scion of the American suburbs who had been trained as
an officer and hurriedly sent to Vietnam. n417 From all accounts, Calley was unsuited to perform the tasks to which he
was assigned. n418 Faced with the pressures of Vietnam, he and his men were propelled into a frenzy of pillage, plunder
and murder. n419 Only Calley stood convicted of murder. n420 However, in the end, his life sentence was reduced to ten
years and he served roughly one-third of his sentence. n421
The My Lai operation clearly contravened the standards of in [*363] ternational law. Yet, the United States
refused to fulfill its obligation to prosecute those members of its military who had committed and concealed war crimes.
This failure was particularly egregious in light of the United States' prosecution of those Nazi military leaders who had
been responsible for killing civilians. The defenses offered by the German defendants and rejected by the American war
crimes tribunals, in fact, are reminescent of the justifications offered for American atrocities in Viet Nam. n422
Nevertheless, the prosecution and conviction of Calley remains problematic. Calley merely responded to the
expectations of his superiors and his actions did not greatly vary from the type of conduct which appears to have been
widely practiced and rewarded in Vietnam. n423 Most Americans supported Calley's conduct and stated that they would
have acted in a similar fashion. n424 Calley's prosecution and conviction appears to be particularly unfair in light of the
fact that the United States paid little attention to the law of war in its conduct of military operations. n425 Few GIs were
prosecuted for war crimes and most of those who were convicted received relatively light sentences. n426 The
culpability of Calley and the other Americans convicted of war crimes pales in comparison to the large-scale atrocities
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for which American aviators and leaders must stand responsible.
n427
The question remains whether atrocities are inevitable in war. Ordinary individuals appear to lack the resources to
psychologically withstand the inherent pressures towards retribution and revenge which characterize military conflict.
n428 There is an inherent tension between military training and the exigencies of war on the one hand and the dictates of
legal codes on the other. n429 The enforcement of the humanitarian law of war is further complicated by the difficulties
of criminal investigation in the midst of armed conflict. n430 Cleary domestic military tribunals, as in the case of Calley,
also are limited in their ability and willingness to enforce the law against [*364] their own combatants. n431 There will
be an inevitable imbalance: democracies will more readily institute prosecutions than will totalitarian states; and the
victorious will invariably single out the vanquished. n432
Politics and pragmatism seem to inherently infect war crimes trials. Those who are brought to trial for war crimes
thus will appear to some to be unfairly singled out for prosecution. Until the prosecution of war crimes is
institutionalized in a permanent international tribunal, the prosecution of even the obviously guilty will continue to raise
questions of equity and fairness. Nevertheless, to abandon such trials is to retreat into barbarism. n433
Legal Topics:
For related research and practice materials, see the following legal topics:
Criminal Law & ProcedureCriminal OffensesWeaponsUseSimple UseElementsGovernmentsCourtsJudgesInternational
LawSovereign States & IndividualsHuman RightsWar Crimes
FOOTNOTES:
n1. See generally Michael Walzer, Just and Unjust War A Moral Argument with Historical Illustrations (1977).
n2. See generally Ramsey Clark, War Crimes, A Report on United States War Crimes Against Iraq (1992).
n3. Infantry companies are comprised of three rifle platoons and of a weapons platoon, each with a strength of forty. The platoons are led by
lieutenants and consist of four ten man squads, each of which is led by a sergeant. Each squad consists of two small-weapons fire teams. By
the time of the My Lai massacre, the platoons in Charlie Company had been depleted by casualties and been reduced to two or three squads.
Seymour M. Hersh, My Lai 4: A Report on the Massacre and Its Aftermath 21 (1970) hereinafter My Lai 4. The Americal Division was
composed of three five-thousand man infantry brigades, each with its own artillery and cavalry units. Seymour M. Hersh, Cover-Up 27
(1972).
n4. Report of the Department of the Army Review of the Preliminary Investigations into the My Lai Incident, I The Report of the
Investigation 4-9 (1970)hereinafter Peers Inquiry.
n5. Id. at 4-9. Two-thirds of the twenty-three noncommissioned officers in the company were enlistees and the majority were above average
in all evaluated areas. The officer corps also had a higher perentage of high school graduates and men with college credits than was found
throughout the Army. The majority of the noncommissioned officers were above average in general learning and infantry ability. Id.
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1 San Diego Justice J. 295, *364
n6. Id. at 4-9.
n7. Michael Bilton & Kevin Sim, Four Hours in My Lai 56 (1992). This statement overlooks the class-bias in military recruitment. A
1965-1966 survey indicates that only two percent of draftees were college graduates. A Notre Dame survey concludes that men from
disadvantaged backgrounds were roughly twice as likely to serve in the military and to go to Vietnam and to experience combat. A 1970
survey of twelve hundred members of the Harvard graduating class determined that fifty-six graduates entered the military and that only two
went to Vietnam. This is in stark contrast to the hundreds of Harvard graduates who served in World War II. Army records indicate that an
enlistee who was a college graduate had a forty-two percent likelihood of going to Vietnam; a high-school graduate had a seventy percent
chance; a high-school dropout a seventy percent likelihood of going to Vietnam. A Chicago study discovered that those from low-income
neighborhoods were three times as likely to die in Vietnam as were those from high-income neighborhoods. Youths from neighborhoods
with low educational levels were four times as likely to die in Vietnam as were youths from better educated neighborhoods. See Lawrence
M. Baskir & William A. Strauss, Chance and Circumstance The Draft, The War and the Vietnam Generation 9-10 (1978).
n8. Peers Inquiry, supra note 4, at 4-7. Company C had an authorized strength of six officers and 175 enlisted men. In early March 1968, the
authorized strength was reduced to 158 men. The unit's actual operating strength was significantly lower. Of the 130 officers and enlisted
men who were available for duty, roughly twenty were assigned to the rear base in administrative and logistic positions. Eleven enlisted men
from other units were attached to the company. This increased the field operating strength to 120 men. Id. at 4-7.
n9. Id. at 8-13.
n10. Id. at 4-6-4-8. The in-country training also did not include instructions in the handling and treatment civlians and refugees. Id. at 4-8.
n11. Id. at 4-6-4-7.
n12. Bilton & Sim, supra note 7, at 64-65.
n13. Peers Inquiry, supra note 5, at 4-7.
n14. Hersh, My Lai 4, supra 3, at 17.
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1 San Diego Justice J. 295, *364
n15. Id. at 19.
n16. Arthur Everett, Kathryn Johnson & Harry F. Rosenthal, Calley 43-49 (1971) hereinafter Everett.
n17. Id. at 50.
n18. John Sack, Lieutenant Calley: His Own Story 26-27 (1970).
n19. Id. at 28 (emphasis omitted).
n20. Id. at 84 (emphasis omitted).
n21. Bilton & Sim, supra note 7, at 53.
n22. Peers Inquiry, supra note 5, at 8-10.
n23. Hersh, My Lai 4, supra note 3, at 20.
n24. Id.
n25. Id.
n26. Id.
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1 San Diego Justice J. 295, *364
n27. William C. Westmoreland, A Soldier Reports 498 (1976).
n28. Id.
n29. Bilton & Sim, supra note 7, at 70.
n30. Hersh, My Lai 4, supra note 3, at 24, 30.
n31. Bilton & Sim, supra note 7, at 77.
n32. Hersh, My Lai 4, supra note 3, at 32-38.
n33. Bilton & Sim, supra note 7, at 79-80.
n34. Hersh, My Lai 4, supra note 3, at 34. It appears that the mines had been laid in order to protect a former Korean base camp. Id.
n35. Everett, supra note 16, at 29.
n36. Hersh, Cover-Up, supra note 3, at 34.
n37. Id. at 55.
n38. Hersh, My Lai 4, supra note 3, at 43.
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n39. Id. at 36-37.
n40. Id. at 38.
n41. Richard Hammer, One Morning in the War The Tragedy at Son My 105-106 (1970).
n42. Bilton & Sim, supra note 7, at 76.
n43. Hammer, supra note 41, at 108.
n44. Hersh, Cover-Up, supra note 3, at 55. C Company had four of its men killed and thirty-eight wounded. Id.
n45. Peers Inquiry, supra note 5, at 3-3. Pham Van Dong, Prime Minister of North Vietnam, was born and grew up in Quang Ngai.
Hammer, supra note 41, at 29. In 1954, an estimated ninety thousand South Vietnamese migrated to the North, ninety percent are estimated
to have come from Quang Ngai and a neighboring province. Hersh, My Lai 4, supra note 3, at 3.
n46. Peers Inquiry, supra note 4, at 3-3-3-4. Son My Village is located 9 kilometers northeast of Quang Ngai City and faces the South China
Sea. Son My village was composed of four hamlets, Tu Cung, My Lai, My Khe and Co Luy, each of which contained several sub-hamlets.
The Vietnamese designation for many of these subhamlets differed from those indicated on the United States maps. The subhamlet identified
by the Americans as My Lai (4) was actually named Thuan Yen; the subhamlet identified as My Khe (4) was known to the Vietnamese as
My Hoi. Id. at 3-3. My Lai was along the coast to the northeast; below it on the coast was Co Luy; inland and west of Co Luy was My Khe;
and north of My Khe, west of My Lai was Tu Cung. Each of the four villages contained roughly twenty-five hundred people. Hammer, supra
note 41, at 26. The population of Quang Ngai Province was estimated to be 640,000, South Vietnam's third largest. Hersh, My Lai 4, supra
note 3, at 4.
n47. Hammer, supra note 41, at 6.
n48. Hersh, My Lai 4, supra note 3, at 4-5.
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1 San Diego Justice J. 295, *364
n49. Peers Inquiry, supra note 5, at 4-11-4-12.
n50. Id. at 4-12-4-13.
n51. Hersh, Cover-Up, supra note 3, at 64.
n52. Id.
n53. Id. at 65.
n54. Peers Inquiry, supra note 5, at 5-3.
n55. Id. at 5-4.
n56. Id. at 5-5-5-6.
n57. Id. at 5-6-5-7.
n58. Id. at 5-12-5-13.
n59. Id. at 5-13. Medina explained that his remarks were based on the intelligence report that all the civilians would be at the market. Id.
n60. Id.
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1 San Diego Justice J. 295, *364
n61. Id. at 5-13. Although the Americans were to be out-numbered by the VC, military analysts argued that in a guerilla war that it was
necessary to out-number the enemy by four-to-one. The troops also were to land within two hundred yards of My Lai (4), well within the
range of enemy fire. The question arises whether those who planned the operation actually expected to encounter the VC. Hersh, My Lai 4,
supra note 3, at 40. Many intelligence officers believed that the 48th Battalion had left Son My and were rebuilding their depleted forces in
the mountains. Bilton & Sim, supra note 7, at 90.
n62. Bilton & Sim, supra note 7, at 98.
n63. Hersh, Cover-Up, supra note 3, at 79.
n64. Id. at 97-98.
n65. Bilton & Sim, supra note 7, at 109-110.
n66. Id. at 110-112. A main trail rain north-south for the entire length of the village. Another ran west-east, forming a junction where the
two trails met in the middle of the settlment. An irrigation ditch formed a semicircle around the southern fringes of the village several
hundred meters beyond the tree line. Id. at 110.
n67. Id. at 113. In the northern portion of the village, the Second Platoon also was engaged in slaughter. Id. at 114.
n68. Id. at 114.
n69. Id. at 116-17.
n70. Id. at 133-134.
n71. Id. at 129. Gang rape was wide spread throughout C Company. Id.
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1 San Diego Justice J. 295, *364
n72. Meadlo's foot was later blown off by a mine. Calley had been prodding Meadlo to quicken his pace just prior to the explosion. As he
lay on the ground, Meadlo had screamed at Calley that this was divine vengeance for what they had done at My Lai. Richard Hammer, The
Court-Martial of Lt. Calley 118 (1971).
n73. Id. at 154.
n74. Id.
n75. Id. at 122.
n76. Id. at 124.
n77. Id. at 124-25.
n78. Id. at 132.
n79. Id. at 132-33.
n80. Sack, supra note 18, at 104-05 (emphasis omitted). Calley admitted that "most people know a lot more about communism than I do."
Id. at 105.
n81. Id. at 106.
n82. Peers Inquiry, supra note 5, at 6-18. The number of dead does not include the 80-90 killed by Comany B. Id. at 7-1.
n83. Id. at 5-9.
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1 San Diego Justice J. 295, *364
n84. Id. at 5-7-5-8. No distinction was made between the dwellings, livestock and foodstuffs of noncombants and those belonging to enemy
combatants. Id.
n85. Id. at 5-21.
n86. Id. at 10-28.
n87. Id. at 11-7.
n88. Id.
n89. Id.
n90. Hersh, Cover-Up, supra note 3, at 165.
n91. Id. at 166.
n92. Hammer, supra note 41, at 7.
n93. Peers Inquiry, supra note 5, at 10-22.
n94. Id. Task Force Barker's average ratio of weapons captured to VC killed was one to ten. The ratio of less than one to forty should have
caused some inquiry. Sixty-nine of the enemy casualties allegedly were the result of artillery fire which lasted five minutes. This was
followed by a combat assault during which no return enemy fire was reported. Yet, the rifle units reported that they killed an additional
twenty-to-sixty VC within seventy minutes. Id. at 10-24. Yet, intelligence reports revealed to thirty-to-forty VC had departed the area at
Page 42
1 San Diego Justice J. 295, *364
0700. Id. at 10-27. At the same time, approximately three hundred Vietnamese civilians were seen exiting the village subsequent to the
initiation of the artillery assault. This should have alerted the Americans to the fact that civilians remained in the village and that caution
should be exercised. Nevertheless, little effort was taken to insure that artillery and gunship fire did not result in civilian casualties, id. at
10-20, and little effort was taken to halt the burning of the hamlet. Id. at 10-21-10-22.
n95. Id. at 10-3-10-5.
n96. Id. at 10-6-10-8.
n97. Id. at 10-11.
n98. Id. at 10-10.
n99. Id. at 10-10-10-11.
n100. Id. at 10-11-10-12.
n101. Id. at 10-13. Thompson also complained to Chaplain Captain Carl Creswell. Creswell then went to his superior who, in turn,
approached Lieutenant Colonel Barker. Id. at 10-38-10-40. The Peers report concludes that Barker assured the Chaplain that "while there
had been some casualties among the noncombatants, these were inadvertent and were a natural consequence of the type of combat units
faced in inhabited areas." Id. at 10-40.
n102. Id. at 10-41.
n103. Id.
n104. Id. Following C Company's departure from My Lai (4), Henderson directed Medina to return and investigate what had transpired.
This order was countermanded by Koster. Id. at 10-4.
Page 43
1 San Diego Justice J. 295, *364
n105. Id. at 10-57.
n106. Id. at 10-58.
n107. Id. Allegations of massacre percolated through the South Vietnamese bureaucracy. Id. at 10-43-10-56. However, a report filed by a
United States military advisory team determined that such reports unsubstantiated. Id. at 1051, 10-59-10-60. Medina later explained that he
did not report civilian casulaties in order to avoid embarassing the Army and jeopardizing his own reputation and career prospects. Hammer,
supra note 72, at 321.
n108. Peers Inquiry, supra note 4, at 11-14.
n109. Id. See also id. at 2-12-2-13.
n110. Bilton & Sim, supra note 7, at 190-191.
n111. Everett, supra note 16, at 79.
n112. Id.
n113. Id. at 79-80.
n114. Peers Inquiry, supra note 5, at 12-4-12-7. The Peers report was limited to reviewing the adequacy of the investigation of the My Lai
(4) incident. Id. at 1-6.
n115. Reprinted in Peers Inquiry, supra note 5, at 1-7.
Page 44
1 San Diego Justice J. 295, *364
n116. Id. at 1-11 (emphasis omitted).
n117. Everett, supra note 16, at 98.
n118. Id. at 105. Others charged were Eugene Kotouc, the task force intelligence officer; Captain Thomas K. Willingham, commander of B
Company; Private Gerald A. Smith, charged with premeditated murder; Sergeant Esequiel Torres, charged with premeditated murder;
Private Max D. Hutson, charged with premeditated murder; Sergeant Kenneth L. Hodges, charged with rape and assault with intent to
murder; Corporal Kenneth Schiel, charged with premeditated murder; Specialist Four Robert T'Souvas, charged with premeditated murder;
Specialist Four William F. Doherty, charged with premeditated murder. Id. at 105-107.
n119. Hammer, supra note 72, at 35-36. Others charged included Brigadier General George H. Young, Jr., assistant division commander of
the Americal Division, who was charged with failure to obey lawful orders and dereliction of duty by helping to cover up the massacre. The
same charges were lodged against thirteen other officers. Colonel Oran Henderson, commander of the Eleventh Brigade, and two other
officers also were charged with making false statements and swearing falsely under oath. Lieutenant Colonel Frank A. Barker, the
commander of Task Force Barker was killed in a helicopter accident in June, 1968. Id. at 36. Lieutenant Stephen Brooks, leader of the
second platoon, C Company, whose men engaged in the killing of civilians had been killed in Viet Nam. Id. at 33.
n120. Id. at 37.
n121. Id. at 38.
n122. Everett, supra note 16, at 111.
n123. Id.
n124. Hammer, supra note 72, at 41.
n125. Id. at 41.
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1 San Diego Justice J. 295, *364
n126. Id. at 42.
n127. Charges were dropped gainst Torres, Hutson, T'Souvas and Smith. Several weeks later murder charges against Scheil and Doherty
were dropped and accusations of rape and assault with intent to murder against Hodges were also dropped. Bilton & Sim, supra note 7, at
330. The Third Army later announced that it had dismissed the murder and cover-up charges against Captain Thomas Willingham of Bravo
Company. The other accused officers, including Generals Koster and Young, were administratively transferred to the First Army
headquarters at Fort Meade, Maryland. Hersh, Cover-Up, supra note 3, at 256. Some alleged that the dismissal of the charges was the work
of an informal network of officers known as the West Point Protective Association (WPPA). Id. at 264.
n128. Hersh, Cover-Up, supra note 3, at 256. Within a year, Seaman had dropped charges against eleven of the twelve officers within his
jurisdiciton. Id.
n129. Hammer, supra note 72, at 42.
n130. Id. at 42-43. The dismissal of charges against Koster and others was criticized. Stanley Resor, Secretary of the Army, in one of his
final acts before resigning, reduced General Koster one grade. Both General Koster and Young were stripped of their Distinguished Service
Medals. Id. at 43. Seaman's decision not to prosecute Koster was belied by the findings contained in a letter of censure which he wrote to
Koster. Seaman wrote that Koster's failure to assure a proper and thorough initial investigation, in part, was responsible for the fact that the
full My Lai (4) events remained undisclosed for nearly two years. Bilton & Sim, supra note 7, at 328.
n131. Hammer, supra note 72, at 43.
n132. Bilton & Sim, supra note 7, at 325. For a summary of the disposition of the other officers see id. at 325-327.
n133. Hammer, supra note 72, at 44-45. The judge's instructions erroneously stated that it was legal to threaten violence. Bilton & Sim,
supra note 7, at 347.
n134. Bilton & Sim, supra note 7, at 349-350.
n135. See Roger S. Clark, Medina: An Essay On The Principle Of Criminal Liability For Homicide, 5 Rutger-Camden L.J. 59, 70-72
Page 46
1 San Diego Justice J. 295, *364
(1973). See also Colonel Kenneth A. Howard, Command Responsibility for War Crimes, 21 J. Pub. L. 7 (1972). Cover-up charges against
Medina were dropped prior to trial. Hersh, Cover-Up, supra note 3, at 255-256.
n136. Ironically, Peers was denied promotion to four star general and retired from the Military. Bilton & Sim, supra note 7, at 353. Twelve
officers and enlisted men - including Medina - were charged with murder or assault with intent to commit murder at My Lai (4). Only Calley
ultimately was convicted. Murder charges were dismissed before trial at Fort McPherson against Sergeant Esequiel Torres, Corporal
Kenneth Schiel, Specialists Four William F. Doherty and Robert W. T'Souvas and Privates Max D. Hutson and Gerald A. Smith. An assault
charge was dismissed against Sergeant Kenneth L. Hodges. Four men were acquitted after trials, Captain Eugene Kotouc, Sergeants Charles
E. Hutto and David Mitchell and Captain Ernest Medina. Hersh, Cover-Up, supra note 3, at 255.
n137. Bilton & Sim, supra note 7, at 330-333.
n138. Hammer, supra note 72, at 361-362. Calley was found guility of the premeditated murder of twenty-two villagers at My Lai. Bilton &
Sim, supra note 7, at 337.
n139. Hammer, supra note 72, at 367.
n140. Id. at 368.
n141. Id. at 379-380. Under normal circumstances, Calley would have remained in the disciplinary barracks at For Leavenworth until his
appeals had been exhausted. Id. at 379.
n142. Id. at 380.
n143. Id. at 381.
n144. Id. at 385.
n145. Id. at 386.
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1 San Diego Justice J. 295, *364
n146. Bilton & Sim, supra note 7, at 353, 383.
n147. Id. at 355, 384. Following President Nixon's decision, Calley was transferred to the United States disciplinary barracks at Fort
Leavenworth, Kansas. Id. at 355.
n148. Id. at 356.
n149. United States v. Calley, 46 CMR 1131 (ACMR 1973). The Court had previously refused to restrain various news media from
publishing information concerning the Calley case. It determined that the trial judge had taken steps to adequately insulate the court
members from outside influences in order to guarantee the accused a fair trial. See United States v. Calley, 19 USCMA 96, 41 CMR 96
(1969).
n150. 46 CMR at 1174.
n151. See Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 6 UST 3516, TIAS No. 3365,
75 UNTS 287 (1956) hereinafter Geneva Civilian Convention.
n152. 46 CMR at 1174. See Geneva Convention Relative to the Treatment of Prisoners of War, 12 Aug. 1949, 6 UST 3316, TIAS No. 3364,
75 UNTS 135 (1956)hereinafter Geneva POW Convention. In order to be regarded as prisoners of war, irregular troops must be uniformed,
openly display their arms under the control of a commanding officer and must respect the laws of war. Id. at art. 4.
n153. 46 CMR at 1174.
n154. Id.
n155. Id. at 1174 (citing Geneva Civilian Convention, supra note 151 at arts. 3, 32, 33).
Page 48
1 San Diego Justice J. 295, *364
n156. Calley was charged with murder under the Uniform Code of Military Justice rather than with war crimes under The Law of Land
Warfare. Id. at 1138. The relevant statutory provisions appear in id. at 1175.
n157. Id. at 1174-1175.
n158. Id. at 1177.
n159. Id.
n160. Id. at 1178.
n161. Id.
n162. Id. at 1179.
n163. Id. at 1179. The Court also noted that the fact that Calley did not realize that his actions were criminal does not constitute a mitigating
circumstance. That Calley possessed the intent to kill the Vietnamese is sufficient - ignorance of the law does not constitute a defense to an
offense which requires a specific intent. Id. at 1179-1180.
n164. Id. at 1180. Medina denied that he had explicitly or implicitly ordered his men to kill the residents of My Lai. A review of Medina's
testimony does suggest that an individual like Calley, who was unable to draw fine distinctions of language, may have interpreted Medina's
remarks as an order to kill. Medina warned the men that they would be outnumbered two-to-one and could a expect a tough fight. Gunship
and artillery fire would be directed at the village in order to help compensate for the fact that the Americans would be outmanned. C
Company also was told that this was their opportunity to engage and to destroy the 48th Battalion. Medina also told them that innocent
civilians would be at the market. Id. at 1181.
The men were admonished not to kill women and children unless they had a weapon and were attempting to assault the Americans.
However, Medina did instruct the troops to destroy the village, by burning the hootches, to kill the livestock, to close the wells and to
destroy the food crops. At the same time, Medina conceded that he had mentioned to Lieutenant Calley before lift-off to utilize prisoners to
lead the troops through any mine fields. Nevertheless, Medina denied that Lieutenant Calley ever informed him that he was having difficulty
in handling civilians or that the first platoon had encountered a large number of civilians. Medina further rejected the charge that he had
issued an order to move civilians out of the way or get rid of them. He stated that he was never informed that the first platoon had collected
groups of women and children and was unaware that civilians had been killed until he encountered a a pile of bodies on the trail. Id.
Page 49
1 San Diego Justice J. 295, *364
n165. Id. at 1182.
n166. Id. at 1182-1183.
n167. Id. at 1183.
n168. Id. Nevertheless, the soldier is not expected to be an "automoton. A soldier is a reasoning agent, obliged to respond, not as a machine,
but as a person." Id.
n169. Id.
n170. Id. at 1183.
n171. Id.
n172. Id. at 1184.
n173. Id. at 1196.
n174. Id.
n175. United States v. Calley, 22 USCMA 534, 48 CMR 19 (ACMA 1973).
n176. Id. at 24.
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1 San Diego Justice J. 295, *364
n177. Id. at 27.
n178. Id.
n179. Id. at 28.
n180. Id.
n181. Id. at 29. Chief Judge Darden dissented and would have accepted the test proposed by Calley. Id. at 31, 32. Reviewing the orders
Calley believed he had received and the military's experience in Vietnam, Darden concluded that the illegality of the alleged orders may
have been "much less clear than they are in a hindsight review." Id. at 33.
n182. Calley v. Callaway, 382 F. Supp. 650, 654 (M.D. Ga. 1974).
n183. Id. at 657.
n184. Id. at 657. Calley was portrayed as a " "mass murderer' " who had been involved in the " "massacre,' " " "atrocity,' " and " "slaughter' "
of women, children and other innocent civilians. Id. at 659.
n185. Id. at 691 (emphasis omitted). The District Court also accepted Calley's argument that he had been denied due process of law in that
the United States failed to adequately train and prepare him in the rules and procedures of land warfare. "For the government to compel one
to commit an act at his peril without any warning of the peril is certainly violative of due process of law." Id. at 708. It noted that neither the
Court of Military Review nor the Court of Military Appeals had addressed this issue. Judge Elliot, observed that had the military courts
compiled an adequate record, that they "might have appropriately ordered a remand of the case for enlargement of the record." Id.
n186. Id. at 711.
n187. Id. at 712.
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1 San Diego Justice J. 295, *364
n188. Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975) cert. denied, 425 U.S. 911 (1976).
n189. Id. at 206.
n190. Id. at 206.
n191. Id. at 208-209.
n192. Id. at 210.
n193. Id. at 212.
n194. Id. at 228.
n195. See supra notes 146-148 and accompanying texts.
n196. Quoted in Guenter Lewy, American in Vietnam 358 (1978).
n197. See generally David G. Burwell, Civilian Protection In Modern Warfare: A Critical Analysis of the Geneva Convction of 1949 14 Va.
L. Int'l L. 123 (1973); Jordon J. Paust, Legal Aspects of the My Lai Incident: A Response to Professor Rubin, 50 Oregon L. Rev. 138,
145-149 (1971).
n198. See Geneva Civilian Convention, supra note 151, at art. 1; Geneva POW Convention, supra note 152, at art. 1.
Page 52
1 San Diego Justice J. 295, *364
n199. Id. at art. 2.
n200. Id. They shall be bound in relation to a power who is not a party to convention if the power accepts the applies the provisions of the
convention. The conventions also apply to all cases of partial or total ocupation of the territory of a High Contracting Party, even if the
occupation meets with no armed resistance. Id.
n201. See Documents on the Laws of War 328-329 ( Adam Roberts & Richard Guelff eds. 1989).
n202. See Letter from Secretary of State Dean Rusk of August 10, 1965, to Samuel Gonard, President of the International Committee of the
Red Cross, 4 ILM 1173 (1965); Letter of August 11, 1965 from Foreign Affairs Minister Dr. Trans-Van-Do handed to Mr. Andre Durad,
Delegate General of the International Red Cross, 4 ILM 1174 (1965).
n203. See Letter of August 31, 1965 from Bui Tan Linh, acting head of the Cabinet, to International Red Cross (August 31, 1965) 5 ILM
124 (1966).
n204. See notes 198-200 and accompanying texts. The VC, or course, were not signatories. Nevertheless, it was "most difficult for the
United States to argue that the Geneva Conventions of 1949 do not apply vis-a-vis the National Liberation Front which is not a part,
inasmuch as the United States has consistently characterized the NLF as a political arm of Hanoi in the South." Anthony A. D'Amato,
Harvey L. Gould & Larry D. Woods, War Crimes and Vietnam: The "Nuremberg Defense" and the Military Service Resister, 57 Calif. L.
Rev. 1055, 1059 (1969). At any rate, the United States "never denied nor contested the applicability of the international law of warfare to the
American military engagements in Vietnam." Id.
n205. Geneva Civilian Convention, supra note 151, at art. 4.
n206. Id.
n207. See generally Alfred P. Rubin, Legal Aspects of the My Lai Incident 49 Oregon L. Rev. 260 (1970).
n208. Geneva Civilian Convention, supra note 151, at art. 3(1).
Page 53
1 San Diego Justice J. 295, *364
n209. Id.
n210. Id. at art. 3(1)(a).
n211. Id. at art. 3(1)(c).
n212. Id. at art. 3(1)(d).
n213. Id. at art. 3(2).
n214. See Department of State, Aggression From the North: The Record of North Viet-Nam's Campaign To Conquer South Viet-Nam, 52
Dept. State Bull., Mar. 22, 1965, at 404.
n215. Id. at art. 32.
n216. Id. at art. 33. A protected person who is definitely suspected of or engaged in activities hostile to the security of the detaining State,
such as sabotage or spying, is to be treated with humanity. Id. at art. 5. Where there are doubts as to whether an individual merited prisoner
of war status or should be treated as a saboteur or spy, the individual was to enjoy the protection of a prisoner of war until their status had
been determined by a competent tribunal. Geneva POW Convention, supra note 152, at art. 5.
n217. See Telford Taylor Nurember and Vietnam: An American Tragedy 133-134 (1970). See supra notes 205-206 and accompanying texts.
n218. See supra notes 205-206 and accompanying texts. See Taylor, supra note 217, at 133.
n219. Taylor, supra note 217, at 133.
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1 San Diego Justice J. 295, *364
n220. Geneva Civilian Convention, supra note 151, at art. 4.
n221. Id. at art. 13.
n222. Id. at art. 16.
n223. Id. at art. 24.
n224. Geneva POW Convention, supra note 152, at art. 4(2)(a)-(d). Legal combatants must be comanded by a person responsible for his
subordinates; have a fixed distinctive sign recognizable at a distance; openly carry arms; and must conduct their operations in accordance
with the laws and customs of war. Id.
n225. Id. at art. 5.
n226. Geneva Civilian Convention, supra note 151, at art. 5. The law of war prohibits the killing or wounding of an enemy who has laid
down his arms, or, having no means of defense, has surrendered. See Laws and Customs of War on Land, Annex to the 1909 Hague
Convention (No. IV) Respecting the Laws and Customs of War on Land, art. 23(c) 18 October 1907, 36 Stat. 2277, T.S. No. 539, 1 Bevans
631 hereinafter Hague Rules. The enemy's property is not to be destroyed or seized unless "imperatively demanded by the necessities of
war." Id. at art. 23(g).
n227. Geneva Civilian Convention, supra note 151, at art. 146.
n228. Id. at art. 147.
n229. " No High Contractng Party shall be allowed to itself or any other High Contracting Party of any liability incurred by itself or by
another High Contracting Party in respect of grave breaches...." Id. at art. 148. See Rubin, supra note 207, at 271-272. But see Student
Comment, Punishment for War Crimes: Duty-or Discretion? 69 Mich. L. Rev. 1312 (1971) (exercise of prosecutorial discretion permitted
under Geneva Conventions). A practical difficulty which prevented prosecution of all of those involved in the My Lai massacre was the fact
that military courts lacked jurisdiction over those who had been released from the military. The federal courts had no jurisdiction over such
offenders. See Jordan J. Paust, After My Lai: The Case For War Crime Jurisdiction Over Civilians In Federal District Courts, 50 Tex. L.
Rev. 6 (1971). There also is a question whether the United States complied with its obligation to educate combatants regarding the
requirements of the law of war. See supra note 185.
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1 San Diego Justice J. 295, *364
n230. For a United States prosecution of an American officer, see Court-Martial Of General Jacob H. Smith (Manila, P.I., April, 1902, in I
The Law of War A Documentary History 799 (Leon Friedman ed.).
n231. United States v. Otto Ohlendorf et. al. IV Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council
No. 10 411, 413 (1950).
n232. Id. at 416.
n233. Id. at 441.
n234. Id. at 443-445.
n235. Id. at 412.
n236. Id. at 413.
n237. Id. at 464.
n238. Id. at 468.
n239. Id. at 521.
n240. Id. at 523. The American tribunal rejected the superior orders defense, explaining that a subordinate is bound to obey only lawful
orders. Id. at 470-471. The tribunal also rejected the plea that had a defendant failed to carry out the killings that another merely would have
committed the murders. Id. at 485.
Page 56
1 San Diego Justice J. 295, *364
n241. Id. at 587-589.
n242. Id. at 485.
n243. United States v. Wilhelm von Lebb, XI Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council
Law No. 10 462, 512-513, 675-697 (1950) hereinafter High Command Case. Eleven of the thirteen defendants were convicted. Id. at
675-697.
n244. Id. at 517.
n245. Id. at 526.
n246. Id. at 527-528.
n247. Id. at 521-522. Prosecution only was mandatory where the judiciary determined that it was required in order to maintain discipline or
the security of the German forces. Id. at 522.
n248. Id. at 523-524.
n249. Id. at 525.
n250. Id. at 560-561.
n251. Id. at 530.
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1 San Diego Justice J. 295, *364
n252. Id. The Barbarossa Jurisdiction Decree categorized civilians who impede or incite others to impede the German Wehrmact as
guerillas. Id.
n253. Id. at 499-500.
n254. Id. at 541.
n255. United States v. Wilhelm List, XI Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No.
10 1230 (1950) hereinafter Hostage Case.
n256. Id. at 1318-1319. The Tribunal articulated the procedures which are required under international law for the detention and execution
of hostages. Id. at 1250-1253.
n257. Id. at 1254-1255.
n258. Id. at 1262-1263, 1269.
n259. Id. at 1269. Those who were shot generally were Communists, id. at 1264, Jews, democrats and nationalists, id. at 1266 and Gypsies,
id. at 1268.
n260. Id. at 1272.
n261. Id. at 1311.
n262. Id. at 1272, 1318.
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1 San Diego Justice J. 295, *364
n263. Id. at 1272-1273.
n264. Id. at 1272. The resulting cycle of counter-reprisals attests to the necessity for adhering to the law of war. Id. at 1274.
n265. Id. at 1305.
n266. Id. at 1308-1309.
n267. Id. at 1309.
n268. Id. at 1309.
n269. Id. at 1319.
n270. Id. at 1309.
n271. Id. at 1254.
n272. See generally, Paul Fussell, Wartime Understanding and Behavior in the Second World War (1989).
n273. J. Glenn Gray, The Warriors Reflections on Men in Battle 132-133 (1959).
n274. Id. at 132-133.
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1 San Diego Justice J. 295, *364
n275. See id. at 148, 153.
n276. Id. at 153-154.
n277. Id. at 182-183.
n278. Fussel, supra, note 272, at 281.
n279. Id. at 279. In their invasion of the Continent, the Allies killed twelve thousand innocent French and Belgian civilians. In the
Netherlands, more than seven thousand planes were shot down or crashed. The entire bomber combat force of the United States Air force
aounted to roughly 3,400 planes. The crash of seven thousand aircraft would cover every square mile of the state of New Jersey. Id. at 283.
n280. Id. at 285.
n281. See John W. Dower, War Without Mercy Race and Power in the Pacific War (1986).
n282. Id. at 44.
n283. Id. at 64 (quoting Edgar L. Jones).
n284. Id. at 64-65.
n285. Id. at 40-41.
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1 San Diego Justice J. 295, *364
n286. Id. at 54.
n287. Stanley Milgram, Obedience to Authority: An Experimental View 5 (1969). Paid volunteers were instructed to apply increasingly
severe electric shocks to a learner in the next room whenever an incorrect answer was provided. Unknown to the volunteer, the learner was
an actor who actually received no shock. Id. at 13-26.
n288. Id. at 6. Milgram found that many subjects will obey the orders of the experimenter no matter how loud and intense the pleading of
the person being shocked. "It is the extreme willingness of adults to go to almost any lengths on the command of an authority that constitutes
the chief finding of the study and the fact most urgently demanding explanation. Id. at 5.
n289. Milgram identified a number of binding factors which predispose individuals to obey authority. These include the desire to please, a
focus on the technical aspects and success of the experiment, id. at 7, the projection of responsibility onto authority, id. at 7-8, the
commitment to the pursuit of scientific truth, id. at 9, and the blaming of the victim. Id. at 10.
n290. Id. at 180-183. The military induction and training process breaks down individuality and develops a respect for military authority.
Killing is justified by the need to subdue an enemy which poses a threat to the country. This willingness to resort to violence is encouraged
when the enemy is portrayed as racial inferiors who adhere to an alien ideology. In the war zone, discipline, solidarity and obedience are
encouraged by the exigencies of survival. Id. at 181-182.
n291. Id. at 182. Milgram atriculates a number of central themes in the testimony of defendants charged with atrocities. Id. at 186-187.
n292. Philip G. Zimbardo, Pathology of Imprisonment, Society, April 1991, at 4.
n293. See Christopher R. Browning, Ordinary Men: Reserve Police Battalion 101 and the Final Solution in Poland (1992). Browining
studies the records of German Reserve Police Battalion 101 which was a mobile police execution squad in Poland which methodically
gunned down Polish Jews. Id. at 161.
n294. Id. at 164.
n295. Id. at 182.
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1 San Diego Justice J. 295, *364
n296. Id. at 184, 186.
n297. Id. at 184-185.
n298. Id. at 185-186.
n299. Robert May Lifton, Home From the War Vietnam Veterans: Neither Victims Nor Executioners 42-43 (1973). The Jungle Training
Center at Schofield Barracks in Hawaii included booby-trapped huts with slant-eyed dummy targets. Id. at 44.
n300. Id. at 46-47.
n301. Id. at 47-48.
n302. Id. at 48.
n303. Id. at 49.
n304. Id. at 50.
n305. Id. at 55.
n306. Id.
n307. Id. at 57.
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n308. Id.
n309. Id. at 59. Lifton identifies the notion of body count as the central concept for understanding the pressure on troops and officers to kill
and for perpetuating the illusion that only combatants were being exterminated. Id. at 63-65.
n310. Herbert C. Kelman & Lee H. Lawrence, Assignment of Responsibility in the Case of Lt. Calley: Preliminary Report on a National
Survey, 28 J. Soc. Issues 177 (1972). An interview poll indicated that thirty-four percent approved of the trial and fifty-eight percent
disapproved. Id. at 182.
n311. Id. at 193.
n312. Id. at 210. These responses assume that the respondents either received formal orders or were acting in accordance with implicit "
"unwritten rules.' " Id. In another study, forty-one percent of a sample of Annapolis Midshipmen and thirty-nine percent of a sample of
individuals enrolled in officer candidate programs (ROTC) stated that they would obey a morally repugnant order. Ed Berger, Larry Flatley,
John Frisch, Mayda Gottlieb, Judy Haisley, Peter Karsten, Larry Pexton & William Worrest, ROTC, My Lai and the Volunteer Army, 2 For.
Pol'y 135, 144 (1971).
n313. Peers Inquiry, supra note 5, at 9-5-9-6. The four information cards were entitled: The Enemy in Your hands; Nine Rules; Code of
Conduct;" and Geneva Convention. Id. at 915. These cards stressed humanitarian treatment and respect for Vietnamese civilians and
reminded individuals of their obligation to comply with the Geneva Conventions of 1949. Id. Task Force Barker received minimal training in
the provisions of the Geneva Conventions, the rules of engagement and the handling and safeguarding of noncombatants. Id. at 8-13.
n314. Id. at 9-14.
n315. Philip Caputo, A Rumor of War 217 (1977).
n316. Id.
n317. Douglas Kinnard, The War Managers American Generals Reflect on Vietnam 54-55 (1977).
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1 San Diego Justice J. 295, *364
n318. Lewy, supra note 196, at 366 (1978).
n319. Lifton, supra note 299, at 43.
n320. Lewy, supra note 196, at 343.
n321. Id. at 347-349.
n322. Id. at 346.
n323. Id. at 345.
n324. Id. at 323.
n325. Hersh, Cover-Up, supra note 3, at 37.
n326. Id.
n327. Id. at 35-36. There were practical problems in prosecuting war crimes allegations - the difficulty of gathering and locating evidence in
the field and the perpetrators often had been transferred back to the United States or had left the military service and no longer were subject
to military jurisdiction. Lewy, supra note 196, at 372.
n328. Id. at 36.
n329. Id. at 49.
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1 San Diego Justice J. 295, *364
n330. Id. at 41.
n331. Id. at 42.
n332. See id. at 39-40.
n333. Id. at 48. The 11th Brigade issued three day passes to individuals or units with high body counts. Stymied by a lack of intelligence,
helicopter pilots were offered three-to-five day passes for bringing in military-age Vietnamese males for questioning. "Operation Body
Snatch" soon deteriorated - pilots ran civilians down with their skids and civilians were lassoed, stripped, and had their necks snapped as the
helicopter lifted off the ground. Id. at 46.
n334. Quoted in Noam Chomsky, The Rule of Force in International Affairs, 80 Yale L. J. 1456, 1468 (1971).
n335. Hersh, My Lai 4, supra note 3, at 9.
n336. Id.
n337. Id. at 9-10.
n338. Id. at 11.
n339. Id. at 13.
n340. Chomsky, supra note 334, at 1472-1473.
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1 San Diego Justice J. 295, *364
n341. United States v. Duffy, 47 CMR 658 (ACMR 1973).
n342. Id. at 660-661.
n343. Id. at 661.
n344. Id. at 663.
n345. Id. at 664.
n346. Id. at 660.
n347. Id. at 664.
n348. United States v. Crider, 45 CMR 815 (NCMR 1972).
n349. Id. at 819.
n350. Id. at 820.
n351. Id. at 828.
n352. Id. at 828-829.
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1 San Diego Justice J. 295, *364
n353. United States v. Goldman, 43 CMR 711 (ACMR 1970).
N354. Id. at 714.
n355. Id. at 714.
n356. Id.
n357. Id. at 715.
n358. Id. at 713.
n359. Id. at 715.
n360. United States v. Griffen, 39 CMR 586 (ABR 1967).
n361. Id. at 587-588.
n362. Id. at 590.
n363. Id. at 587.
n364. Id. at 591.
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1 San Diego Justice J. 295, *364
n365. United States v. Potter, 39 CMR 791 (NBR 1967).
n366. Id. at 792.
n367. Id. at 793.
n368. Id. at 794.
n369. Id. at 801.
n370. Id. at 796. Potter was sentenced to confinement at hard labor for life, dishonorable discharge and forfeiture and reduction in pay. Id. at
792.
n371. 45 CMR at 828.
n372. Id. at 793.
n373. Id.
n374. Id. There is little doubt that the innocent victims of American violence would have exhibited less understanding towards Crider's
actions.
n375. Lewy, supra note 196, at 348. Substantiation required the satisfaction of a probable cause standard. Id. Of the 241 allegations of war
crimes involving Army personnel made between 1965 and 1975, 191 (79 percent) were made after September 1969, when the My Lai
incident was initially publicized. Id. at 347.
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1 San Diego Justice J. 295, *364
n376. Id. at 350. Calley's conviction brought the total of GIs convicted to thirty-two.
n377. Id. at 348. Between 1965 and 1971, the Navy had nine court-martial convictions involving Vietnamese victims and the Air Force had
seven. Neither service engaged in significant ground combat, but both had aviators under their command. Id. at 350. The number of marines
convicted was seventy-seven, the number acquitted was thirty-eight. Id. at 351.
n378. Id. at 352. Individuals may be subjected to court-martial, the charges against them may be dismissed, they may be subjected to
nonjudicial punishment, adjudged insane or they may be granted immunity to testify in another trial. Individuals also may be killed in action
prior to trial or may be dismissed from the military and thus may be outside military jurisdiction. Id. at 457. Altogether, sixty-one percent of
the officers were either acquitted, had their charges dismissed before trial or were subjected to administrative action. The corresponding
figure for enlisted men was thirty-four percent. Officers are tried by courts composed of officers. Enlisted men may request that one-third of
the jury is composed of enlisted men.Id. at 352.
n379. Id. at 353.
n380. Id. at 370.
n381. The secretaries of the military services possess the legal prerogative to grant parole or clemency. Id. at 370-371.
n382. Id. As of May 21, 1971, twenty-nine Army personnel had been convicted of war crimes in Vietnam and confinement had been
adjudged against fifteen of them. Data available for thirteen of these men indicate that on the average they served 51.5 percent of their
sentences before being released as a result of parole or clemency action. Id. at 371.
n383. See Edward S. Herman, Atrocities in Vietnam: Myths and Realities 17-19 (1970).
n384. Frances Fitzerald, Fire in the Lake: The Vietnamese and the Americans in Vietnam 500 (1972).
n385. Gabriel Kolko, War Crimes And The Nature Of The Vietnam War, in Crimes of War: A Legal-Political Documentary, and
Psychological Inquiry into the Responsibility of Leaders, Citizens, and Soldiers for Criminal Acts in War 403, 412 (Richard A. Falk, Gabriel
Kolko & Robert Jay Lifton eds. 1971) hereinafter Crimes of War.
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1 San Diego Justice J. 295, *364
n386. Quoted in Neil Sheehan, A Bright Shining Lie John Paul Vann and America in Vietnam 619 (1988).
n387. Id. at 620.
n388. Id. at 621.
n389. Quoted in Daniel Ellsberg, Papers on the War 309 (1972).
n390. Id. at 319.
n391. Id. at 320 (emphasis omitted).
n392. Richard J. Barnet, Roots of War 129-130 (1973). Another technique of emotional distancing was the bureaucratic fallacy. For
instance, in approving a stepped up defoliation program in Vietnam in 1965, Secretary of State Dean Rusk noted that the jungle was
uninhabited and that only the VC would be victimized. Id. at 127.
n393. Herman, supra note 383, at 55.
n394. Id. at 42.
n395. Sheehan, supra note 386, at 617.
n396. Chomsky, supra note 334, at 1474.
n397. See generally Richard J. Barnet, Roots of War 95-133 (1972).
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1 San Diego Justice J. 295, *364
n398. In Re Yamashita, 327 U.S. 1 (1946).
n399. Id. at 13-14.
n400. Id. at 14.
n401. Id.
n402. Id. at 15.
n403. Id. at 16.
n404. Id. at 17.
n405. Id. at 28. Justice Murphy criticized the imposition of liability on Yamashita for failing to control his troops in a situation where the
disorganization with which he was charged was caused by the invading American forces. Id. at 35.
n406. Ellsberg, supra note 389, at 293.
n407. Id. at 309.
n408. Bertrand Russell, Opening Statement to the First Tribunal Session, in Against the Crimes of Silence Proceedings of the Russell
International War Crimes Tribunal 49, 51 (John Duffett ed. 1968).
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1 San Diego Justice J. 295, *364
n409. Bertrand Russell, Bertrand Russell's Final Address to the Tribunal Copenhagen, December 1967, in id. at 653.
n410. Townsend Hoopes, The Nuremberg Suggestion, in Crimes of War, supra note 385, at 233, 236.
n411. Id. at 237.
n412. Americans In Vietnam: The Lessons of My Lai, in War Crimes and the American Conscience 104, 106-107 (Erin Knoll & Judith Nies
McFadden eds. 1970) (comments of Robert Jay Lifton).
n413. Everett, supra note 16, at 269-306.
n414. Bilton & Sim, supra note 7, at 340.
n415. Quoted in Everett, supra note 16, at 276.
n416. See supra notes 310-312 and accompanying texts.
n417. See supra notes 4-7, 17-19 and accompanying texts.
n418. See supra notes 22-27 and accompanying texts.
n419. See supra notes 28-41, 299-310 and accompanying texts.
n420. See supra notes 117-140 and accompanying texts.
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1 San Diego Justice J. 295, *364
n421. See supra notes 140-148 and accompanying texts.
n422. See supra notes 197-271 and accompanying texts.
n423. See supra notes 42, 332-348, 384-396 and accompanying texts.
n424. See supra notes 310-312 and accompanying texts.
n425. See supra notes 313-340 and accompanying texts.
n426. See supra notes 341-383 and accompanying texts.
n427. See supra notes 384-405 and accompanying texts.
n428. See supra notes 4-7, 272-312 and accompanying texts.
n429. See supra ntoes 272-298 and accompanying texts.
n430. See supra note 327 and accompanying text.
n431. See supra notes 117-136 and accompanying texts.
n432. See generally Matthew Lippman, The Other Nuremberg: American Prosecutions of Nazi War Criminals in Occupied Germany, 3
Indiana Int'l & Comp. L. Rev. 1 (1992); Matthew Lippman, Nuremberg and American Justice, 5 Notre Dame J.L. Ethics & Pub. Pol'y 951
(1991); Matthew Lippman, Nuremberg: Forty Five Years Later, 7 Conn. Int'l J. Int'l L. 1 (1991); Matthew Lippman, The Denaturalization Of
Nazi War Criminals In The United States: Is Justice Being Served? 7 Houston J. Int'l L. 169 (1985); Matthew Lippman, The Trial Of Adolf
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1 San Diego Justice J. 295, *364
Eichmann And The Protection Of Universal Human Rights Under International Law, 5 Houston J. Int'l L. 1 (1982).
n433. See generally M. Cherif Bassiouni & Christopher L. Blakesley, The Need for an International Criminal Court in the New
International World Order, 25 Vanderbilt J. Transnat'l L. 151 (1992).