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Do any of these tactics violate international law? The 1949 Geneva Convention says: "Individual and mass forcible transfers are prohibited regardless of their motive." The same document also states that "persons taking no active part in the hostilities shall in all circumstances be treated humanely." Among specific prohibitions: "collective penalties," such as burning villages that may harbor guerrillas. Moreover, the 1907 Hague Convention prohibits "the attack or bombardment, by whatever means, of towns, villages, dwellings or buildings which are undefended." Thus a B-52 bomber raid that strikes defenseless, invisible people below is no more lawful than Calley's gunning down of villagers standing in front of him. But if the planned target is militarily defended, the legal situation is different.
Yamashita v. Westmoreland
No Axis leader tried after World War II was convicted of crimes involving the unrestricted bombing of defended civilian populations. The Allies had done the same thing in order to destroy enemy industrial centers. Today the U.S. may be hard put to justify the fire-bombing of Dresden or the atomic destruction of Hiroshima and Nagasaki, all of which seem less necessary in retrospect than they did at the time. But so far, bombing a defended city is not a specific war crime. Given the goal of saving U.S. troops' lives (the rationale for Hiroshima), it can still be called a military necessity. In North Viet Nam, moreover, U.S. bombing was a model of purposeful restraint because President Johnson imposed strict restrictions and almost personally ran the operations.
On balance, while most people who charge the U.S. with "war crimes" use the term loosely, U.S. practices in South Viet Nam are suspect. Moreover, there are troubling legal precedents set by the Tokyo trial of Japanese leaders after World War II. One defendant was Koki Hirota, Foreign Minister during Japan's 1937 "rape" of Nanking. Though Hirota had protested the atrocities, the Tokyo tribunal found him guilty of not "insisting before the Cabinet" that they be halted immediately. Hirota received a death sentence and was executed. Where does this leave U.S. Cabinet officers?
A U.S. military tribunal in Manila did something even more questionable in the case of General Tomoyuki Yamashita, commander of Japanese forces in the Philippines near the war's end. Yamashita was found guilty of failing to stop his army from committing various atrocities, including the killing of 25,000 unarmed civilians. In fact, he had been holed up in northern Luzon, unable to control or even communicate with most of his men. Even so, the U.S. Supreme Court upheld his conviction on the dubious assumption that he had had power to stop the atrocities and therefore, as commander, he had been responsible for his army's conduct. In sharp dissent, Justice Frank Murphy wrote: "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."
My Lai's Basic Issue
Yamashita was executed—perhaps for the sake of a good principle (command responsibility) but surely with scant regard for the evidence. Is his fate, as many now suggest, a precedent for prosecuting American