WAR CRIMES AND PUNISHMENT
The exercise of mercy is seldom to be questioned; but President Nixon's use of his prerogative after the judicial finding of Lieutenant galley's guilt is lamentable. The evidence suggests that the President's decision was a nervous rather than a cal- culated reaction to those bewildered Amer- icans who had come to sec in the baby- faced little lieutenant not a murderer of women and children but the martyr thrown up by a political trial. The stern upholders of 'the forces of law' are right to be appalled,by the President's decision, and few will argue with that part of Mr Fairlic's passionate diatribe, printed be- low, in which he rightly and robustly de- clares: 'One cannot forever trace back responsibility until none is placed on the man who actually pulls the trigger'. A case could be made for the President's decision on the assumption that it was arrived at reasonably rather than ner- vously, although it has not been advanced by those most anxious to retain the legit- imacy of warfare as an instrument of stately foreign policy: the justification of raison d'etat is plausible, for it could be pleaded that the overwhelming need to maintain sufficient morale in the American forces in Vietnam required the President to up- set the verdict of galley's court-martial. Recognising the force of this plea, we nevertheless reject it on the sufficient ground that there is no overwhelming raison d'etat for the United States' involve- ment in Vietnam in the first place.
The matter however cannot be left like that. Nor can it be left with those who, anxious at all costs to preserve the twin notions of the just war and of conduct appropriate to its waging, find no insuper- able difficulty in saying, simply, that galley was a war criminal, the My Lai incident was exceptional, and that the great major- ity of American lieutenants in galley's situation would not have behaved as he did, and in fact have not thus behaved. In this view, 'free fire zones', massive de- foliation and like ecological interference, strategic bombing of neutral countries' ter- ritories, and the corruption of the society ostensibly being protected are defensible. This view, which remains orthodox among those who cannot envisage a polity de- prived of the opportunity of waging just warfare and who cannot concede the im- practicability of maintaining decent stand-. ards of conduct when the warfare is un- conventional, is now naive. It presumes that wars arc fought between disciplined armies sharing certain conventions. If to this presumption be added the assump- tion that no democratic state would fight an unjust or unnecessary war, the effect is to remove moral responsibility from the politicians and live-star generals respon- sible for the initiation and overall conduct of the war, and place it solely (if at all, and only very exceptionally) 'on the man who actually, pulls the trigger'.
This orthodoxy is comfortable; and the Calley case, in its outcome, has shown yet again the ability of the servants . of the state to obtain the best of all possible worlds: galley is judicially and publicly tried and found guilty, and American just- ice is thus vindicated: galley is, in effect pardoned, and the legitimacy of the Amer- ican involvement in Vietnam is thus pro- claimed. The murderer of children is become a living martyr: and the buck stops where the bullets stopped, in the blood and guts and mud of My Lai. The issues, moreover, are confused:. which is how most people like them. Most people are reluctant to conclude, first, that. whether or not there may be just or neces- sary wars, there is now no conventional way in which they may be justly waged: and second, that there is no way in which undefeated statesmen and generals may be held responsible. brought to justice, found guilty, and punished for war crimes com- mitted in their name and as often.as not with their connivance. A consideration of Caney and of Nixon May assist people to reach these conclucions. If so, some good may yet come out of My Lai.
is sometimes a necessity. into the position of the spECTATOR and Mr George Gale, that, since such atrocities as those committed, and admitted, by Lieutenant Calley are unavoid- able in modern war, the use of war as an instrument of policy has become indefensible. It is into such a corner that President Nixon is boxing himself.
Consider two cases which sprang to mind as one listened on Saturday. 3 April. to Presi- dent Nixon's announcement. Suppose that the pilot of one of the planes, or the commander of one of the submarines, which cruise the world with their atomic cargoes, were sud- denly to decide to release them, on Hanoi or on Peking, is he to be allowed to plead that such actions are unavoidable in modern war? 'My buddies were being killed by ori- entals, and what one thinks of in war is one's buddies. So I dropped the bomb on an enemy whom I could not see, could not feel, could not touch.' (This was the most banal aspect of Lieutenant CaIley's defence; he could see, almost eyeball to eyeball, the people at whom he was shooting.) Similarly, just because it is desirable to keep order on a campus, does that justify the killings by the National Guard last spring at Kent State University?
One cannot forever trace back responsi- bility until none is placed on the man who actually pulls the trigger. However much police methods in the United States may need reforming, the chief of police and the police system generally cannot be held responsible for every policeman who shoots unnecessarily. A practical and enforceable code can be established for the exercise of force; and to say that its application may be unfair—that there have been other Son Mys —is merely to note that the law cannot reach to what it does not know. One does not refuse to condemn a known murderer merely because one is aware that others have gone undecided. Whatever the demands on one's obedience and allegiance made by civil or military authority, it must be assumed that there is a point at which every man is alone with himself and with his God, and with no excuse; and that he will act, or seek to act. as a moral being. If this assumption is not made, how can one issue a round of ammunition to anyone?
No one who saw the half-hour interview With one of the jurors in the Calley case, Major Harvey Brown, which was broadcast last week by the Columbia Broadcasting System, can deny that it is possible to be a soldier and remain a moral being. He was deeply distressed at the verdict which the Jury had had to reach: they had given lieu- tenant Calley every benefit of the doubt: but the evidence which they had examined for three months was there. and it was incontro-
vertible; but he was even more distressed that such an atrocity could be the work of an American soldier; it was drummed into an American soldier during his training that. although he might use all necessary force to take a position, once it had been taken he must show mercy; of course he found the position of Lieutenant Calley tragic, but he found the position of his victims more tragic; 'they cannot appeal'.
He spoke softly, with hesitation, and with- out rhetoric, yet no statement could have been more eloquent: a soldierly man, and a humane soldier, caring for the honour of the army and of his country: concerned with the merits of the case, trying to use legal and technical instruments in order to establish the truth, caring that he established it, unable to shirk it; thinking and feeling equally and simultaneously as soldier and moral being: seeking to bring into some bal- ance the demands of necessity and the de- mands of morality in the exercise of power and the application of force.
What can such an officer—what can the Judge Advocate's office—what can the army itself—think of their President today? No wonder that the army has found it necessary to publish a 'fact-sheet' explaining and de- fending the conduct of the trial. It is quite possible that, in order to satisfy the American Legion and the League of Veterans. the President has demoralised and forfeited the allegiance of the active armed forces. Once forced to act in the Calley case, the army behaved with propriety and honour. Fight- ing a war in arduous and confused circum- stances, many of them the creation of the politicians, it nevertheless set about enforc- ing its own code, even in the glare of pub- licity. By his actions, President Nixon has undermined that code and its enforcement. It brought credit to itself and to the Ameri- can nation. President Nixon has undone that credit.
But he has done more than that. The Washington Post on Sunday drily con- demned President Nixon for establishing a 'government by Western Union'. The cables reaching the White House have been 100 to 1 against the Calley verdict, and he has taken them as evidence of public opinion. But cables are usually the resort of the illiterate and the result of the heat of a moment; one has sent them off oneself, and wished the next morning that one could withdraw them. It is my belief that President Nixon will seriously misjudge the mood of the nation—even more, the character of the American people—if he takes those cables as representative of the opinion even of the 'silent majority', and that the misjudgment will be as politically damaging as it was in the elections of 1970. In 1970, he took the vocal anger of a minority at the students' dissent and violence to be representative of the majority; he called the students 'bums': he let Vice President Agnew loose on one of the most disastrous personal election campaigns of recent years; and, when the voters went to the polls last November, they barely managed a whisper of agreement. President Nixon, is, I think, making the same mistake today. The maj- ority of Americans are probably in much the same position as myself: inclined to support the idea of such an operation as that which has been attempted in Southeast Asia, in- clined to accept the fact that great power has fearful—and not always definable—re- sponsibilities. But it is just such people who therefore believe that the operation should be as free of taint as possible; who wish the army and the country to emerge with as much credit as possible.
They are not-fools. They know that their country has run into deep trouble: strategic, political, moral. For more than two years, they have been prepared to give President Nixon every benefit of the doubt as he has, as one commentator has put it. widened the American withdrawal. They know that the Vietcong and the North Vietnamese have, as a matter of policy, committed worse and more numerous atrocities on the ground than those committed by their own forces: but that scarcely matters to them, for it is the honour and the workability of their own country which is at stake for them. All that they have been asking for some time is that they may find their way—and be assisted by their leaders to find their way—out of the confusion which the war has caused. On one level—and I do not think that they regard it as on more than one level—the orderly and fair and open trial of Lieutenant Calley had an unconfused purpose
The first reaction could only be one of deeper—almost personal—hurt: but at least the army had begun to establish some clear principles, whatever the further principles that might later have to be advanced and upheld. President Nixon has, by his two monstrous interferences, restored the con- fusion. But the reason why 1 think that he may be wrong is that a time came last sum- mer when the middle-class parents of students began to mutter to themselves that, although they might not understand their children. they knew that they were not 'hums'. Eau:illy, the middle-class parents of soldiers will. I think, say that. although they may understand their sons' predicaments. they do not believe that they would behave as Lieu- tenant Calley. President Nixon never seems to understand that, when the silent majority appears to be vocal, it is not the silent majority speaking.
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