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. Tags: International Laws of Warfare, War Crimes, Vietnam War, Nuremberg Defense, Military Service Resister, Tu Quoque, Reprisal, Military Necessity, Superior Orders [pg1055]*** The case of Captain Howard B. Levy—the Green Beret “Medic” CaseFN1—at first seemed like hundreds of similar cases involving American servicemen being prosecuted for resistance to military orders involving Vietnam. Captain Levy had refused an order to teach dermatology to Special Forces (Green Beret) medics in the United States who were preparing for service in Vietnam, on the ground that his teaching would be “prostituted” by the Green Berets who in his opinion would commit war crimes once they arrived in Vietnam. The law officer for the military court, surprisingly, and on his own initiative, thereupon called for a private session in which he would hear evidence on the “Nuremberg defense”—the charge that the Green Berets were committing war crimes in Vietnam and that the government cannot constitutionally [pg1056] place a soldier against his will in substantial jeopardy of becoming implicated in such crimes. This decision by the law officer lifted Levy's case out of the ordinary and gave it historical significance. After hearing the evidence, the law officer ruled that none of it was admissible in open court. The net effect was to suggest to the public that an American military court was willing to be open minded about the introduction of a war-crimes allegation but that such a defense in fact had no intrinsic merit. A closer look at the law officer's ruling reveals otherwise. The law officer held the proffered evidence inadmissible not on the merits but because it was strictly irrelevant to Captain Levy's own circumstances. Although there was testimony in the private session that Green Berets were engaging in criminal activity in Vietnam that violated international laws of warfare, there was no evidence that the medics among the Green Beret troops were themselves engaged in war crimes or that their medical training was being prostituted by being utilized in criminal activity. FN2 While narrowly conceived, this ruling is reasonable inasmuch as Captain Levy was not himself in danger of serving in Vietnam as a member of the Green Berets, and his particular medical expertise, taught in this country, could only serve to ameliorate whatever wartime crimes they might commit. Thus the Levy case may have been the weakest possible situation to introduce a “Nuremberg defense.” On the other hand, the case does stand for the important precedent that a war-crimes defense is available, in relevant circumstances, to in-service resisters.