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When in Rome...
Doubts & the benefit of the doubt in war.


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The stories now surfacing about Senator John Kerry’s service in Vietnam show, far better than any hypotheticals lawyers could contrive, why the United States should never join the Rome Treaty of the International Criminal Court, subjecting itself to that institution’s authority to punish violations of the laws of war. Did John Kerry commit “war crimes” in Southeast Asia? It all depends on how you look at it; how you choose to interpret the actions of a man in his 20s, ten thousand miles from home, who was being periodically shot at.

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Getting to the point, there are two incidents of particular interest here. First, as the commander of a “Swift Boat” during the Vietnam War, Kerry is alleged to have killed (shot in the back) a near-naked teenager, who was fleeing with a grenade or rocket launcher. The young man was, evidently, already wounded. Second, Kerry is said to have entered a deserted village, killed a number of farm animals, and torched several huts. War crimes?

Well, were it anyone else, “progressive” interest groups like the International Committee of the Red Cross (ICRC), Human Rights Watch, and Amnesty International, would certainly say “yes”–faster than you could roast a pot-belly pig. When you apply the traditional laws of war, however, the question becomes a lot less clear.

This is not, of course, because the rules are confusing. In this area, at least, they are clear as an Arizona morning. Enemy combatants, even if young and naked, are lawful targets at all times, including when fleeing a battlefield, unless and until they surrender or are otherwise rendered hors de combat (unable to resist or escape), usually by wounds. Kerry killed a wounded man. Was that man about to take his last step, before falling unconscious? Or, was he barely scratched, and about to make good his escape with a weapon that, once reloaded, could again be used against American forces–maybe even Kerry’s boat. Criminality here depends entirely upon how you apply the law to the facts, and whether you are prepared to give young Kerry the benefit of the doubt.

On to the village. Again, the rule of law is clear. The destruction of civilian property, including grass huts, pigs, and chickens–which may well constitute the shelter and sustenance necessary to keep the local villagers alive–is a war crime. No ifs, no ands, no buts; it’s a war crime. Of course, huts that can shelter and feed innocent farmers can also shelter and feed guerilla fighters. If that’s what those huts, and the animals, were used for–either in the immediate past, present, or immediate future–then they were legitimate military targets, and their destruction is entirely lawful. Indeed, leaving them intact (to later benefit the enemy) might well have been a dereliction of duty. Which was it in Kerry’s case? Was he just acting in revenge, or for fun, or were little hamlets like this, up and down the river, used by the Viet Cong? More than 30 years on, who knows? Even at the time, it would probably not have been obvious. The rules of war are usually clear, but their application is almost always debatable in what has tritely, but accurately, been so often described as the “fog of war.”

On these facts, we believe (strongly) that the senator should get the benefit of the doubt. John Kerry is no war criminal. We note, of course, that giving Senator Kerry the benefit of this doubt is doing far more for him than he was prepared to do for the young Americans who remained behind when he left Vietnam–the ones he, himself, tarred as “war criminals” before the United States Congress and the American people.

However, would an “independent” international prosecutor be quite so forgiving? One, perhaps, who would like to make a point about the American “hyperpower”? Fortunately for Senator Kerry, there was no such prosecutor, and no such International Criminal Court, on the scene when he served in Vietnam. And, fortunately for all the young Americans who, in the future, may find themselves thousands of miles from home, being shot at and having to decide (without much time for reflection or consultation with counsel) when, and whether, and how to shoot back, President Bush repudiated the prosecutor and court that now exists in the Hague. Decisions on the interpretation and application of the laws of war should remain in the hands of American institutions, responsible to the American electorate. George W. Bush has ensured that they will, at least for now.

David B. Rivkin Jr. and Lee A. Casey are partners in the Washington, D.C., office of Baker & Hostetler LLP. They served in the Justice Department during the Reagan and Bush Sr. administrations.



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