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U.S. Must Investigate Alleged War Crimes

Kerrey Revelations Raise Bigger Issues, Says Rights Group

United States Defense Secretary Donald Rumsfeld should launch an independent investigation into allegations of possible war crimes by U.S. troops during the Vietnam War, Human Rights Watch said today.

The inquiry should examine whether certain U.S. military policies, orders and practices during the war, particularly those regulating special operations and unconventional warfare, constituted or led directly to the commission of war crimes by U.S. forces.

In a letter to Secretary Rumsfeld, Human Rights Watch said recent disclosures by former Senator Bob Kerrey concerning his service as a junior officer in a Navy SEAL team in 1969 suggested that certain military units then operated under standing orders or employed methods that directly violated the Fourth Geneva Convention, resulting in "grave breaches" of that Convention, or war crimes.

"The Kerrey disclosures have reopened bitter debates about the Vietnam War," said Kenneth Roth, executive director of Human Rights Watch. "But that doesn't mean the U.S. can shirk its responsibility to find the truth and pursue justice. As a party to the Geneva Conventions since 1955, the U.S. had, and still has, a clear legal obligation to investigate possible war crimes by its forces in Vietnam."

Human Rights Watch has not itself investigated the killings in Thanh Phong village, Vietnam disclosed by Senator Kerrey and takes no position on the factual dispute surrounding the precise acts committed there by his Navy SEAL team on or about February 25, 1969.

The allegation that members of the team killed unarmed persons in their custody, however, warrants specific investigation by the U.S. government: if proved, such acts would clearly constitute war crimes, for which there is no statute of limitations, and should result in prosecutions.

The Geneva Convention relative to the Protection of Civilian Persons in Time of War (the Fourth Geneva Convention) was the operative law at the time of the Vietnam War, including at the time of the events described by Sen. Kerrey. This extends legal protection to "those who…find themselves…in the hands of a Party to the conflict…of which they are not nationals" -- including, in other words, Vietnamese nationals captured by U.S. forces -- and 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." Under Article 146, a violation of the Convention that involves "willful killing" constitutes a "grave breach" of the Convention, that is, a war crime and another article (Art.146) obligates states party to the Convention to search for and bring before its own courts any persons alleged to have committed such "grave breaches" or ordered them to be committed.

The U.S. and both South Vietnam and North Vietnam became states parties to the four 1949 Geneva Conventions years before the events disclosed by former Senator Kerrey, and were bound by their obligations throughout the conflict in Vietnam.

"Violations of the laws of war by Vietnamese forces in no way justified violations by U.S. troops," said Roth. "Nor can they relieve the U.S. of its obligation to investigate these allegations."

In its letter to Defense Secretary Rumsfeld, Human Rights Watch said that an inquiry should also examine whether all necessary measures are now in place to ensure that U.S. troops can never be issued with orders or trained in practices that would violate the Geneva Conventions.

Human Rights Watch urged that U.S. troops, whether they are deployed in international humanitarian intervention programs as in Kosovo, or to assist other governments' forces to combat rebel groups as in Colombia, should be fully trained in the requirements of international humanitarian law, and held accountable for any violations.

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