Donald H. Rumsfeld
Secretary of Defense
1000 Defense Pentagon
Washington, D.C. 20301
Dear Secretary Rumsfeld,
Human Rights Watch respectfully calls on you to initiate an urgent, thorough, and independent inquiry into allegations that standing orders and practices of the U.S. military and certain of its units may have led to systematic violations of recognized international humanitarian law in force during the Vietnam War.
Recent disclosures by former Senator Bob Kerrey, concerning his service in Vietnam as a junior officer in a Navy SEAL unit, suggest that certain U.S. military units at that time operated under standing orders and employed practices that may have directly violated the Fourth Geneva Convention of 1949 and resulted in "grave breaches" of that Convention, or war crimes. At the time of the conflict, all relevant parties were bound by the Convention, having ratified or adhered to it. Like all State Parties, the United States had, and still has, a binding legal obligation under the Convention to investigate any such alleged grave breach without statute of limitation.
Human Rights Watch has not itself investigated and thus does not take a position on the factual dispute reported in the press surrounding the precise acts committed by Sen. Kerrey and his unit at Thanh Phong, Vietnam, on or about February 25, 1969. However, the allegation that unarmed persons in their custody were killed also warrants investigation by the U.S. government because, if proved, such acts would clearly be war crimes.
The Geneva Convention relative to the Protection of Civilian Persons in Time of War, or the Fourth Geneva Convention, was the operative law at the time of the war, including at the time of the events described by Sen. Kerrey. In relevant part, this defines as persons protected under the Convention "those who...find themselves...in the hands of a Party to the conflict...of which they are not nationals." Article 27 requires that all protected persons be "humanely treated" and "protected especially against all acts of violence." Article 32, elaborating, prohibits States Parties from taking "any measure of such a character as to cause the physical suffering or extermination of protected persons in their hands" - a prohibition which, as it itemizes, includes "murder" and "any other measures of brutality."
According to Article 147, a violation of the Convention that involves "willful killing" is a "grave breach," that is, a war crime. Article 146 provides that each Party to the Convention "shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons...before its own courts."
Sen. Kerrey has suggested to the media that when his Navy SEAL unit killed people in two separate incidents at the village of Thanh Phong, it was acting in accordance with both standing orders that declared the relevant part of the Mekong Delta to be a "free-fire zone" as well as specific instructions to his unit, and others like it, to kill anyone encountered rather than take prisoners. He has also suggested that his unit felt compelled to commit the first killing (or set of killings - the number is in dispute) so as not to compromise its mission. Under the Geneva Conventions, however, neither the creation of a "free-fire zone" nor a claim of military necessity can ever justify the summary execution of persons who are noncombatants or captured combatants (Arts. 4, 32, Fourth Geneva Convention) or prisoners of war (Arts. 84, 101, Third Geneva Convention). That is, no one can ever be summarily executed, regardless of their status as combatant or noncombatant. The former Senator's assertion that his unit was operating in accordance with standard practice, or that there were standing orders, to commit such executions is especially disturbing and, notwithstanding the passage of so many years, merits the most serious investigation of the orders and practices then being employed and of those in the chain of command who might have tolerated such practices or issued such orders.
That opposing Vietnamese forces may not have abided by these rules, despite their legal obligation to do so, provides no excuse or valid grounds for summary executions by U.S. troops. Article 33 of the Fourth Geneva Convention provides unequivocally that "reprisals against protected persons...are prohibited." (Article 13 of the Third Geneva Convention extends similar protection to prisoners of war, although no claim has been made that POWs were involved in the case described by Sen. Kerrey.)
In light of the broad allegations arising from the case of Sen. Kerrey, and in accordance with the U.S. government's legal obligations as a State Party to the Geneva Conventions, we urge you to initiate without delay a full and independent investigation to establish whether during the Vietnam War certain U.S. military policies, orders and practices - in particular, those regulating special operations and unconventional warfare - constituted or led directly to the commission of war crimes by U.S. forces. The inquiry should also examine whether all necessary steps have been taken in the interim to ensure that there can be no repetition of these practices, including intensive training on the requirements of humanitarian law and the establishment of a strict accountability system to ensure that those responsible for violations face discipline or punishment. Such an inquiry should be carried out by a body that includes both civilians as well as military members, and its full findings should be made public.
Further, while noting Sen. Kerrey's expressed contrition regarding the events in which he took part in Thanh Phong village, Human Rights Watch considers that these events too should be fully and independently investigated, and that any person found to have committed a grave breach of the Convention should be brought to justice.
Mr. Secretary, it has long been the declared policy of the United States to promote international humanitarian law, such as the Fourth Geneva Convention. It has adopted this policy both because of a desire to spare civilians as much as possible the hazards of war and because international humanitarian law provides an essential protection for U.S. servicemembers who may be exposed to situations of conflict. Yet, the standards of humanitarian law are only as strong as the practice of enforcement. For the United States to ignore allegations of grave breaches of the Geneva Conventions as have been made in this case would seriously undermine efforts around the world to enforce these essential standards. So for this reason, too, we urge you to ensure that these most disturbing allegations are fully and promptly investigated.
We understand that this case has reopened bitter debates about the Vietnam War. But the intense feelings that the war evokes in no way diminish the U.S. government's obligation to follow the truth wherever it may lead. A nation of laws has an obligation to determine whether its actions have been consistent with the laws that govern armed conflict. And it has a duty to apply the lessons to its conduct in future conflicts. We hope you will take the initiative to explore what lessons are to be learned from these allegations and to apply those lessons going forward.