Bob Kerrey as a War Criminal – Part I and II – PDF

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Mr. Kerrey receiving the Medal of Honor in 1970.Credit Richard Nixon Library and Birthplace

2001 Bob Kerrey as a War Criminal Part I

2001 Bob Kerrey as a War Criminal Part II (incomplete draft)

Bob Kerrey as a War Criminal? Part I, The Murder of Five Unarmed Civilians (Grandparents and Three Children) at Hooch #11

Let there be no doubt about it: Bob Kerrey is should be tried as a war criminal. His actions on the night of February 24-25, 1969 when the seven man Navy Seal unit which he headed killed approximately twenty unarmed Vietnamese civilians, eighteen of whom were women and children was a war crime. None of the explanations he has given for his conduct and none of the excuses offered up by pundits such as the fog of war, the unreliability of and conflicts between witnesses, passage of time, and the trickiness of memory relieve him from guilt. Like those who murdered at My Lai, he too should be brought into the dock and tried for his crimes.

Kerrey is accused of two separate incidents of killing on the night of February 24-25, 1969. The first took place as he and his group of Seals approached the village of Thanh Phong where he and his unit were to kill or kidnap the village secretary or headman, a loyalist of the National Liberation Front. As they approached the village they came upon a first hut and captured five unarmed civilian Vietnamese. Kerrey admits he authorized his men to kill them, but claims that he did not know that one woman and three young children were among the five. He denies that he personally held down the grandfather, while one of his men slit his throat. He claims that it was within his orders to kill them to protect his mission and that “the people we killed were at the very least sympathetic to the Viet Cong and at the very most, were supporting their efforts to kill us.” He then claims, as if to justify the killings, that the “Viet Cong were a thousand per cent more ruthless than” the Seals or U.S. Army.

For the moment let us accept Kerry’s account of this event, just as he admitted it. Does his version somehow exonerate him from having committed a war crime: the crime being the summary execution or murder of noncombatant civilians; in fact it constituted a double war crime as the Vietnamese were his prisoners. The Geneva Conventions, customary international law and Uniform Code of Military Justice (under which Lt. Calley was tried for the My Lai massacre), all prohibit the killing of noncombatant civilians and the killing of prisoners of war. Those are the fundamental dictates of the laws of war. They are reflected in the 1956 United States Army Field Manual, The Law of Land Warfare which requires “safeguarding certain fundamental rights of persons…particularly prisoners of war…and civilians….”

These laws were known to Kerrey as they were contained in a “pocket card” given to each member of the United States Armed Forces in Vietnam. That card says specifically that armed forces must comply with the Geneva Prisoner of War Convention and not “mistreat your prisoner.” In capital letters it states: “ALWAYS TREAT YOUR PRISONER HUMANELY.” the pocket card then warns: “Mistreatment of any captive is a criminal offense.” The five Vietnamese killed in this incident were civilians and they had been taken prisoner. Kerrey violated all of these laws: it is a very clear case of the commission of war crimes.

What then of Kerrey’s defense to these five killings. He says when he his unit asked him for authorization to kill the prisoners he thought all five were men and that he did not know there only one man, a woman and three young children. This may make a difference as to how we are supposed to feel emotionally about Kerrey’s role in the killing, but it does not provide a legal excuse for killing noncombatant civilians and prisoners of war: noncombatant and prisoners of war cannot be killed—period.

Kerrey’s claim that he did not himself carry out the killings, does nothing to exonerate him. As the superior officer, he ordered them. As the U.S. Army Field Manual says responsibility for war crimes rests with the perpetrators and the commander directly “when the acts in question have been committed in pursuance of an order of the commander.”

In offering the excuse that the victims were sympathetic to the enemy or supporting their efforts to kill, Kerrey still does not get it. Even had all five been men and even had they been combatants, members of the military forces of the National Liberation Front, Kerrey could still not have authorized their killing. Once they were captured they were prisoners of war, and had to be treated as such. That is the bedrock prohibition of the laws of war. But Kerrey does not even claim they were combatants. He argues they could be killed because they were sympathetic to the enemy; under Kerrey’s theory an entire civilian population of an enemy country could be murdered. It is a good thing Kerrey is no longer a soldier.

Kerrey and others in his defense claim that had he not authorized the killing of the five, the mission would have been compromised as the villagers would have been warned. His unit would have been unable to continue on and into the village where there goal was to kidnap or kill the village secretary or mayor. There is nothing in the laws of war that carves out an exception for killings of noncombatants and prisoners in such circumstances. His argument would be that “military necessity” justified violating the legal prohibitions. But the U.S. Army Field Manual specifically rejects that argument: “military necessity has been generally rejected as a defense for acts forbidden by the customary and conventional laws of war….”

As his final defense Kerrey says that his orders as a Seal and Seal leader was to get the job done and forget about taking prisoners civilian or otherwise. He understood is orders as: “don’t take any prisoners.” This was of course an illegal order—any order to kill civilians or unarmed prisoners is illegal. Does the fact that Kerrey was given such an order absolve him from guilt? It does not. While a soldier must obey legal orders, he is not allowed to defend his actions by claiming to follow an order that is illegal. According to the U.S. Army Field Manual, a superior order does not constitute a defense for an individual in a trial for war crimes, ” unless he did not know and could not reasonably have been expected to know that the act was unlawful.” It was not reasonable for Kerrey to believe that the order to kill noncombatants and prisoners was a legal order. Not only is that prohibition fundamental to the laws of war and common knowledge among soldiers and civilians alike, every member of the U.S. Armed Forces had been given the pocket card reiterating the prohibition and criminality of harming prisoners.

A similar claim of superior orders was made by Lt. Calley who was tried by a general court-martial for the 1968 killings at My Lai Vietnam. He claims he received an order to kill the Vietnamese villagers. The appeals court rejected the claim saying that “an order to kill unresisting Vietnamese would be an illegal order, and that if Calley knew the order was illegal, or should have known it was illegal, obedience to an order was not a valid defense.” Calley was convicted and sentenced to life imprisonment, although President Nixon eventually ordered him released.

Sadly, the Calley-My Lai case has other parallels with Kerrey’s Thanh Phong killings. In both My Lai and Thanh Phong defenseless old men, women and children were systematically killed. Both Calley and Kerrey were lieutenants in command of their troops and both authorized their men to kill unarmed civilians. Interestingly, at My Lai, a private refused Calley’s order to execute the villagers as he said: “I couldn’t go through with it. These little defenseless men, women, and kids.” Another soldier refused to give his machine to the killers. What these last examples demonstrate is that soldiers can and did refuse illegal orders that constituted war crimes. Not only did Kerrey fail to do so, he gave such an order.

Some have said that Kerrey should not be held responsible for these murders because he was only a twenty-five year old relatively inexperienced soldier carrying out a policy made by higher ranking officers and policy makers in Washington D.C. But this should not get him off; the fact that there are those who were more culpable and who planned a murderous policy, is not an excuse for his crimes. He knew better; he knew what was right and wrong, what was legal and what was not. Remember, Kerrey said he was ready to take Hanoi “with a knife in my teeth.” His thirty year silence about his conduct, his continued holding on to the Bronze star for these very murders, and his elevation of his anguish over that of his victims make one’s not inclined to be forgiving.

Recall that the case against Kerrey laid out above is based on his story of the killings. It really leaves no doubt about his guilt of the most serious of war crimes, crimes that he ought to have been tried and punished for. The story told by other witnesses, a villager Pham Tri Lanh who apparently saw some of what was taking place, and two members of Kerrey’s unit, add some gory details. The two fellow soldiers saw Kerrey holding down the old man at the first hooch while his throat is cut and the villager saw the three children stabbed to death. If Kerrey participated directly in the killings he also had to have known that a woman and three children were murdered as well. But as was said, even without the testimony of these witnesses, Kerrey has committed war crimes and should be tried for them.

1 Part II will address the second set of killings in the village: thirteen or fourteen women and children.

Bob Kerrey as a War Criminal? Part II Kerry’s Killings—No Excuses and Business As Usual

Part I addressed Kerrey and his units murders of five unarmed civilians on the night of February 24-25, 1969 in Thanh Phong, Vietnam at Hooch #1. Those killings, even based on Kerrey’s version, constituted war crimes: the killing of unarmed civilian prisoners. This piece will address first, some the criticisms I received from veterans for judging Kerrey so harshly, second, the wider context in which these crimes were committed and third, why Kerrey is lying regarding the second set of killings—those of 14 women and children that occurred subsequent to the earlier murders.

A number of veterans of the war wrote expressing that unless I was in Vietnam, “part of conflict as a soldier or war correspondent,” I had no right to judge Kerrey’s actions, that war was a crime and crimes are committed by the war itself and that “it was not a c rime to survive.” In other words, only those who actually were out in the field knew the difficulties and the circumstances that could cause U.S. soldiers to kill. I read these letters sympathetically, understanding that many soldiers in Vietnam were young, thrown into extremely difficult and tense situations, afraid for their lives, and ordered to kill civilians and prisoners in areas that were deemed to be controlled by the enemy—the National Liberation Front. Some of these arguments might be reasons for mitigating the penalties applied to those who commit war crimes—the apology

1. wider war; kerrey still liable; kerrey lying higher ups

X number of Reasons Kerrey is Lying & Is Guilty of War Crimes

1. Kerrey’s job was to assassinate non-combatants. Kerrey was a Navy Seal, a special forces unit that kidnapped or assassinated village head men or leaders who might be loyal to the National Liberation Front. These were civilians; kidnapping or murdering civilians is a war crime. He job was surely part of Operation Phoenix, the CIA program which former Director William Colby stated had killed 20,587 Vietnamese “activists.” In fact, Kerrey’s goal on February 25th was to do exactly that: kill or kidnap the village secretary.

2. During the precise time period when Kerrey’s unit was operating in Kien Hoa Province, U.S. forces were carrying out, as Christopher Hitchens said, ” a cleansing of the area” as a way to “redeem many thousands of villagers from political control by the National Liberation Front….” This “cleansing” or “redeeming” spread terror and involved the killing of between 5,000 and 11,000 non-combatants. Hitchens quotes two Newsweek reporters who concluded that killings were a matter of policy: it was not “indiscriminate use of firepower, but “charges of quite discriminating use—as a matter of policy in populated areas.” The point here is that it was the policy of the military to do exactly what Kerrey allegedly did: murder unarmed civilians. 3. Kerrey was operating in a “free-fire zone” in which peasants were told to move to “strategic hamlets” or refugee centers; those who refused to move were deemed sympathetic to the National Liberation Front. They and their villages could be attacked even if they had not fired upon U.S. military personnel. As the top South Vietnamese official in the area said, “If you are my friend, you will do fine….You do not, you’re Vietcong, you die.” Under these operating rules, Kerrey’s unit could fire, even if not fired upon and the murder of noncombatants was essentially authorized.

3. seal does—