Outline of the General Introductory Report

After a brief introduction recalling the origins, the composition, the competence and the procedures of the Tribunal, the report contains two parts:

  1. The rules of law which apply.
  2. The crimes charged.

Part 1: The rules of law which apply

Crimes against the peace and wars of aggression

  1. Definition: Crimes against the peace are thus defined by article 6 of the Nuremberg statutes: ‘planning, preparation, initiation or waging of a war of aggression, or a war in violation of international
    treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing’.
  2. The illegality of recourse to war in international relations has been stated in numerous texts, of which the most important is the Paris Pact of 27 August 1928 (the Briand-Kellogg Pact), bearing the signature of the President of the United States of America. This is the text which was invoked at the greatest length by the Nuremberg judgements condemning the wars of aggression charged to Germany.
  3. Other international texts condemning recourse to war and bearing the signature of the United States of America will also be cited.
  4. Recourse to war is also unlawful according to the terms of article 2, paragraphs 3 and 4, of the United Nations Charter.
  5. But recourse to war is not only an unlawful act; it is also a criminal act. The discussion which arose at Nuremberg on this {68} point no longer presents any more than a theoretical character, the Nuremberg verdict and the United Nations resolution of 11 December 1946 having hallowed, in positive international law, the criminal character of recourse to war.
  6. Independently of the violation of the fundamental international rule condemning recourse to war in international relations, a war can furthermore constitute a more precise violation of the specific obligations resulting from such and such a treaty. it is in this sense that the Nuremberg judgement enumerated twenty-six agreements violated by Germany.
  7. It should be emphasized that since Nuremberg the notion of war of aggression has undergone a certain evolution. The United Nations Charter mentions in two different paragraphs the necessity to have recourse to peaceful means in order to resolve international disputes on the one hand, and the use of force against the territorial integrity or political independence of a State on the other. For its part, the United Nations General Assembly resolution of 14 December 1960 proclaimed the necessity to permit all peoples ‘to peacefully and freely exercise their rights to complete independence and integrity of their national territory’. Therefore it seems that a difference must henceforth be made between a war waged in order to resolve an international dispute, and a war waged in order to attack the national existence of a state. In the latter case, one is certainly confronted with an international crime of greater seriousness, and one can even wonder if it is not a question of a crime of aggression ofa particular nature, distinct from the crimes of aggression previously described.

War crimes

  1. War crimes are thus defined by the Nuremberg statutes: violations of the laws and customs of war. Such violations shall include, but not be limited to, murder, ill-treatment or deportation to slave
    labour or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing
    hostages, plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military
    necessity.’
  2. The fundamental text concerning the rights and practices of {69} war is constituted by the fourth Convention of The Hague of 18
    October 1907, and the ruling which is annexed to it. Article 25 of said ruling hallowed the fundamental principle of positive international law according to
    which ‘belligerents do not have an unlimited right concerning the choice of means of doing harm to the enemy’. Other articles decree the principal
    prohibitions.
  3. Concerning the treatment of prisoners of war, of the wounded and the sick, and the protection of civilians in time of war, the
    basic texts in force are the Geneva Conventions of 1949, which went into effect on 21 October 1950.
  4. As for gases and analogous substances, the basic text is the Geneva Protocol of 1925. This protocol was not ratified by the United States, but it is commonly admitted that its provisions express a
    customary law of universal applicability.
  5. The entirety of the rules, recognized by the United States of America as binding, is contained in an
    official manual (‘Department of the Army field manual’) entitled The Law of Land Warfare, published by the United States Department of Defense
    in 1956 (reference number: FM 27-10). There is a companion volume of the treaties and Conventions which the American army is required to respect. We shall
    frequently have occasion, in the course of the Tribunal’s discussions, to refer to these two documents, which can in no way be contested by the United
    States government.

Crimes against humanity

  1. They are thus defined by the Nuremberg statutes: ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connexion with any crimes within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated’.
  2. Discussion of crimes against humanity committed outside of a state of war and those which could be committed in the course of war - discussion which was taken up before the Nuremberg Tribunal - is of no interest to the debates which will take place before our Tribunal. {70}
  3. Crimes against humanity are characterized especially by the extent of the affected populations, and by the motives for these crimes.
  4. In certain cases, the same facts can simultaneously constitute a crime against humanity and a war crime.

Genocide

  1. Genocide, as it is denounced by the International Convention of 9 December 1948, consists of the destruction or the persecution of human groups conceived of as national, ethnic,
    racial or religious entities.
  2. The crime can be committed by the following acts: murder of members of the group, serious attack on the physical or
    mental integrity of members of the group, intentional submission of the group to conditions of existence which, by their very nature, will lead to its partial
    or total physical destruction, measures designed to prevent births within the group, and finally, forced transference of children from the group to another
    group.

Part 2. The crimes charged

General comment

The enunciation of the principal crimes condemned under inter national penal law, and with which the United States of America is charged, as this enunciation will be briefly made in this introductory report, can only constitute, at this stage of the debates, a statement of grievances, for which there is not yet any supporting evidence.

Each category of crimes will be dealt with in detailed reports, which will be accompanied, in each case, by supporting evidence.At the end of the discussions, and before the deliberation, a statement will be made, which
will sum up all the facts established in the course of the hearings.{71}

Crimes against the peace and wars of aggression

  1. When the Geneva Accords were signed in 1954, a legal settlement governing Vietnam was created. This legal settlement was accepted by all the interested parties, and by the
    general body of these nations.
  2. By using armed force to modify this legal settlement, the United States has replaced a state of peace with an
    armed conflict. Therefore, it bears the responsibility for the transition from the state of peace to the state of war, and it has consequently committed what
    is considered in international law to be a war of aggression, a crime against the peace.
  3. The nature of the Geneva Accords of July 1954 will be briefly recalled, that is, an agreement on the cessation of hostilities signed by the commander-in-chief of the People’s Army of Vietnam and by the
    commander-in-chief of the forces of the French Union, followed by two declarations, the final declaration made by the various participants, and a declaration
    made by the United States representative.
  4. A brief summary will be made of the main provisions of the Geneva Accords, in particular those relating to the independence, the sovereignty and the territorial integrity of Vietnam, and also those stressing the temporary nature of the demarcation line, and the impossibility of its being interpreted as constituting a political and territorial boundary.
    There will also be reference to certain essential provisions of the Geneva Accords, namely the prohibition of any persecution arising from activities which took place during the preceding war, the prohibition on introducing
    new troops, military personnel, weapons and munitions, as well as the installation of military bases.
    Finally, mention will be made of the elections scheduled for July 1956, and the obligation to begin preparing them by undertaking contacts in July 1955.
  5. The foregoing provisions will be compared with the behaviour of the United States of America, and it will be pointed out that, beginning even before 1954, a certain number of actions already testified to the intention of the United States to seize Vietnam. In this connexion will be recalled the conditions under {72} which the United States set up the Diem government in Saigon a few weeks before the Geneva Accords.
    This confrontation will enable us to realize the progressive character of the American aggression, and of the successive violations of the Geneva Accords (persecution of former members of the resistance, refusal to hold the elections scheduled for 1956, introduction on a large scale of weapons and personnel, introduction of paid men).
  6. In the face of this aggression, the struggle of the people of South Vietnam until 1959 assumed the character of a national struggle against foreign intrusion, by taking the form only of a political struggle.
    It is only from 1959 on, and in face of the development of American aggression, that the struggle in the South took the form of an armed conflict, which was led, from 1960 on, by the National Liberation Front of South Vietnam.
  7. Finally, we will deal with the conditions in which American aggression against the Democratic Republic of Vietnam took place, and also with the so-called politics of escalation, underlining the concomitant threat to peace in south-east Asia and throughout the world.
  8. We will stress the weakness of the arguments invoked by the United States in order to justify its activities, particularly as they are presented in the ‘juridical memorandum on the legality of United States participation in the defence of Vietnam’
    dated 4 March 1966, presented before the Foreign Relations Committee of the Senate.
  9. The conclusion will be that the United States seems to have committed a crime against the peace, that is to say, it has waged a war of aggression in violation of both general and particular treaties, with the additional
    factor that, in this case, recourse to force is directed against the territorial integrity and political independence of a state - Vietnam - whose integrity
    and independence are recognized by the Geneva Accords.
  10. It is not only a question of a war of aggression which, like every war that sets out to settle an international dispute by force, is unlawful and criminal, but also a war of aggression conducted against the right to live of the Vietnamese people.
  11. The Nuremberg judgement rightly declared that a war of {73} aggression is the supreme international crime, since it contains within it all the other crimes. It is
    this crime that has been committed by the United States in Vietnam, but we Will see that it has been accompanied by numerous other crimes.

War crimes properly so called

  1. In this introductory report, we do not set out to recall in detail all the war crimes imputed to the American armed forces
    in the execution of its military operations.
  2. Massive, systematic and intentional bombing of the civilian population and of civilian objectives
    (hospitals, schools, churches, pagodas, etc ...). All information will be brought before the Tribunal dealing with the extraordinary extent of these bombings -
    which are regularly preceded by reconnaissance flights - and also with the quantity, nature and diversity of the devices employed. Among the witnesses who will
    give evidence on this question will be, in first place, the members of the investigating commissions who went to North Vietnam on behalf of the
    Tribunal.
  3. Policy of destruction, persecution and massacre in South Vietnam, in contempt of international rules on the treatment of civilian
    populations in occupied territories.
  4. Murders. tortures or harmful treatment inflicted upon prisoners of war in contempt of the provisions of the
    International Conventions of Geneva of 1949.(e) Besides the use of certain weapons or devices in unlawful conditions allowing the commission of the
    above-mentioned crimes, the use of new weapons of a patently ‘anti-personnel’ nature, directed against civilian populations. In this regard, very
    special attention will be given to the so-called fragmentation bombs, which the Tribunal will be asked to declare to be prohibited weapons.
  5. Massive deportation of populations, and concentration in special camps created for this purpose. A detailed study of these camps (sometimes called
    ‘strategic hamlets’) will be made, and they will be compared to the concentration camps organized by Germany during the last World War, and which
    were the object of the judgement at Nuremberg.
  6. A detailed study of the gases and toxic products employed {74} by the United States army will be
    made, including not only a scientific analysis of these products, but also the particular conditions under which they are used.

Crimes against humanity

  1. As we have recalled, crimes against humanity are distinguished, in fact, from war crimes only by their scope and by the intention to
    exterminate which inspires them.
  2. We believe that we can demonstrate to the Tribunal that the crimes we have just listed have had far-reaching
    consequences for the populations affected, and that they have been perpetrated with the obvious objective of exterminating one part of the population of
    Vietnam in order to force the other part into surrendering.

Genocide

The International Convention on genocide esteems that this crime is committed when a group of human beings. considered to be a national, ethnic or religious entity, is massacred or persecuted.

If all the crimes we have just listed (crimes against the peace, war crimes and crimes against humanity) are taken as a whole, one can say that, if one gives the most restricted interpretation to
the text on genocide, one is nevertheless dealing with such a crime.

This crime, which is the culmination of the war of aggression, and which includes all crimes perpetrated in conducting the war, constitutes an attempt to exterminate an entire nation.

Conclusion

The war being waged by the United
States in Vietnam, both in principle and in the way it is being executed, is criminal according to Positive International Law.

It has culminated in the crime of genocide, which has already been, and is still being, committed.

To have some idea of the contempt with which United States {75} representatives treat the question of the legality of their intervention in Vietnam, one has only to quote an interview given by Mr Henry Cabot Lodge, at that time United States Ambassador in Saigon. In the course of this interview, he replied as follows:

Question: Questions have recently been raised on the legal aspect of what we are doing in Vietnam. In what way are we justified by International Law?

Answer: As far as I’m concerned, the legal
aspect of this affair is of no significance. ....1

Note

  1. US News and World Report, 15 February 1965.
Author: 
Leon Matarasso
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