War Crimes and Vietnam: The "Nuremberg Defense" and the Military Service Resister

Abstract

We have attempted to establish first that the international laws of warfare are part of American law, and have argued that these laws, when taken as prohibitions of specific methods of waging war, are a practical and effective means of controlling unnecessary suffering and destruction. Second, we have analyzed these laws as they apply to treatment of prisoners of war, aerial bombardment of nonmilitary targets, and chemical and biological warfare, and have marshalled a portion of the available evidence that American forces commit war crimes in Vietnam. Third, we have discussed the defenses of tu quoque, reprisal, military necessity, superior orders, ignorance of the law, and duress, and have concluded that a service resister can state a valid claim that his service in Vietnam may place him in substantial danger of being responsible for commission of war crimes. Finally, we have maintained that in-service and possibly draft resisters raising a “Nuremberg defense” have standing, and raise questions which are both ripe and justiciable.