We Plead the Fifth


“If certain acts in violation of treaties are crimes,

they are crimes whether the United States does them

or whether Germany does them, and we are not prepared

to lay down a rule of criminal conduct against others

which we would not be willing to have invoked against us.”1

Justice Robert H. Jackson



            The United States’ consent was signed into exactly such a treaty, which was subsequently violated without repercussion, without so much as claiming responsibility. This treaty put into effect the principles established by the ‘Convention on the Prevention and Punishment of the Crime of Genocide’; the US is quantifiably guilty of at least three of five criteria of genocide against Vietnam. In agreement with Bertrand Russell, a renowned British philosopher, and his tribunal on United States’ war crimes in Vietnam, and helped by Congressman Ronald V. Dellums’ similar hearings, I seek to establish guilt on the count of genocide by the United States in Vietnam. The conceptual nature of genocide and the argument itself lends well to the use of a philosophic argument; I will first establish the meaning of genocide and its criteria, followed by an examination of the United States’ use of chemical warfare and strategic hamlet concentration camps, utilizing an ‘if A then B’ type arrangement.


Defining the Crime of Genocide


            Firstly, the UN definition is not a definition, it is the definition; it is not an interpretation of a pre-existing term. That is not to say that it is immune to revision, as covered in Article XVI. There was, is and will be mass murder and other atrocities the like, but genocide is a recent category. Proposed by Raphael Lemkin, an American lawyer, it was officially adopted by the UN as a crime in 1948. What exactly constitutes a genocide is lain out in Article II as follows:

“In the present convention, genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial, or religious group as such:

  1. A.    Killing members of the group;
  2. B.    Causing serious bodily or mental harm to members of the group;
  3. C.    Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;
  4. D.   Imposing measures intended to prevent births within the group;
  5. E.    Forcibly transferring children of the group to another group.”2

And is immediately followed, in Article III, by convictions:

“The following acts shall be punishable:

  1. A.    Genocide;
  2. B.    Conspiracy to commit genocide;
  3. C.    Direct and public incitement to commit genocide;
  4. D.   Attempt to commit genocide;
  5. E.    Complicity in genocide.” 2


Take note of the surprisingly broad applications, for these articles will be further referenced. To elaborate the previous claims that ‘three of five criteria’ have been met by the US in Vietnam, this is in reference to Article II A, B, and C, and namely executed by means of hamlets and chemical warfare. The implementation of only one of these acts is necessary for a conviction of genocide. Furthermore, the implementation of none of these acts is necessary for a conviction of complicity in genocide. Specified evaluation of these qualifiers will be made later as evidence mounts.

Colonial Vietnam

            European nations sought footholds in Indo-China for their rich resources (tin, tungsten, manganese, coal, iron, petroleum, lumber, and many more) and thus Vietnam was the colonial choice of France3. In line with a trend noted by a leading scholar on genocide, Adam Jones, colonialism accompanies genocide so often that is nearly a prerequisite. All the while, the Vietnamese people were dissatisfied with the lack of autonomy; a feeling that Americans should have understood all to well. Many resistance organizations formed through the years, but the most successful was the Viet Nam Doc Lap Dong Minh, or just Viet Minh. The largest benefactor for the retention of French control was the United States, footing roughly 80% of the cost of putting down native and imposing Japanese forces3. Post-WWII control over the newly divided regions of Vietnam stressed the nation both militarily and ideologically. Communist China’s support of northern leader Ho Chi Minh and the absence of French influence following their defeat at Dien Bien Phu set the stage for a disillusioned war against the domino-effect spread of communism. With an alibi of guarding freedom and democracy, the United States was quick to put the foot in the door and become the puppeteer of South Vietnam.


            In order to foster a democracy in the south to combat the communism in the north, the US established Ngo Dinh Diem as the first president of South Vietnam3. As a Catholic, an anti-communist, and a native Vietnamese man, he was the perfect fit. The largely agrarian society was comprised primarily of peasants who opposed both American occupation and Diem’s rule. Most of Vietnam supported, or at least sympathized with, the communist nationals, coined Vietcong by the US. The reaction to this dissent was logistically efficient – designate the enemy and isolate them. Military troops would arbitrarily label villages as VC or VC sympathizers and relocate them. The areas where these people were corralled were called ‘strategic hamlets’ and were effectively concentration camps3, 4. What became of the villages is a matter of its own for later discussion. The Dallas Morning News released a letter accounting the experience of some of the 8,000,000 displaced civilians in 6,000 hamlets3:

“Supposedly the purpose of the fortified villages is to keep the Vietcong out. But barbed wire denies entrance and exit. Vietnamese farmers are forced at gunpoint into these virtual concentration camps. Their homes, possessions and crops are burned…. In the province of Kien-Tuong, seven villagers were lead to the town square. Their stomachs were slashed, their livers extracted and put on display. These victims were women and children. In another village, a dozen mothers were decapitated before the eyes of compatriots. In still another village, expectant mothers were invited to the square by Government forces to be honoured. Their stomachs were ripped and unborn babies removed….”3

Forced relocation of Vietnamese villagers.[5]

Hamlet of indigenous Vietnamese ‘mountain people’. [6]

            The first of these photos was found on a Vietnamese forum and I admittedly lack the resources to delve much deeper into the details than inference. It appears to be of the beginning persecutions and movements of the natives. There is an indisputable use of force in relocating these Vietnamese people, and judging by the uniforms, arms, and physical attributes of the soldiers, they are Americans. The person who posted this photo, among others, did so with the words “Arbitrary arrests, torture, beatings!” translated from Vietnamese. The second of these photos is by Alex Forbes and the original caption reads “The strategic hamlet where the American escort left us” 6. The photo website is just that, an album of photos; the author does not provide much contextual detail but you can see the barbed wire used to keep the villagers contained in this hamlet. The page also contains the word ‘montagnard’, which specifies to the prisoners as a mountain dwelling subcategory native Vietnamese.

Along with the physical destruction of the population, victim accounts include the rape of most of the women in these camps3. This causes not only bodily harm, but also a psychological pain that often never heals. Admittedly, these crimes were not all carried out by US troops. They were working with South Vietnamese forces under Diem. Even if the argument is made, however, that American forces did not perform ‘enough’ of these acts of genocide, I refer back to Article III E of the UN genocide convention. Disregarding the question of responsibility being placed enough on the US, there is undoubted complicity in the actions and inactions of the US government. Whether or not Americans actually violated Article II A, B, and arguably C, by displaying livers and the like, is irrelevant because the government that they put in place and actively and knowingly supported did.


Burning Vietnam


            Chemical warfare is universally regarded as inhumane and has devastating effects. This did not stop the US from using them to decimate the land and people with napalm, white phosphorus, DNP (Dinitrophenol), DNOC (Dinitricorto), and more. Under the rouse of tear gas and weed killers, these chemicals were sprayed in liquid and powder form to depopulate Vietnam indifferent to North or South, VC or civilian3, 4.

Napalm is essentially a gelatinized form of gas that sticks and burns indiscriminately until there remains nothing but ash. White phosphorus does more or less the same thing but in the manner of a chemical burn as opposed to actual flames. DNP and DNOC, along with napalm and white phosphorus, are all poisonous to foliage as well as human and animal life. The effects include but are not limited to burns, blinding, paralysis, asphyxiation, convulsion, and death3, 4. Civilian villages were often targeted and consequently burned to the ground using these methods. The purpose for doing this was to supposedly oust designated enemy villages. US Army Captain Robert B Johnson paints a different picture describing strikes on the countryside, and that it became painfully clear that the intent was not a product of war but to “terrorize and intimidate the surrounding villages in an effort to get them to move into detention camps along Route One” 4. This destruction and relocation ‘encouragement’ was the primary use for dropping chemicals.

One survivor, Dr. Nguyen, gives a lengthy description of his experiences in the Lam Gong province where he lived. An air strike was called in that incapacitated everyone in the village with blinded eyes, burning nostrils, and headaches; coughing and vomiting ensued. After fifteen minutes of vomiting blood and struggling to breath, a second strike was called in, increasing the effects. Survivors could barely function physically, and their plant and animal food sources were killed3. The earth and water were poisoned leaving emaciation by avoiding ingestion, slow death from consuming tainted nutrition, or relocated imprisonment as the only options. Unfortunately, this village was the rule rather than the exception. Congressman Ronald V. Dellums held ad hoc war crime hearings in 1971 where nearly every veteran expressed the same sentiment in one way or another – the war was against not North Vietnam, VC, or even communism, but the Vietnamese people4.

The lasting effects of the raids on population are appalling in the form of reproductive insuccess and defect. There are countless photos in existence that document the gruesome effects of napalm, white phosphorus, etc. and if you have the stomach and curiosity to see them I recommend a book titled Agent Orange: “Collateral Damage” in Viet Nam. Due to strict reproduction regulation by the publisher I am not at liberty to share them here, but I will show some similar images:

A victim of chemically induced deformation looking over jars of dead babies. [7]

Surviving children, dependent on medical attention. [7]

Victims of the chemicals rained in Vietnam were not, as shown above, limited to those experiencing burns and blindness etc. Birth deformities were commonplace along with stillbirths among survivors, continuing the terror long after the chemical raids ceased. The first picture above shows a man simply born without a leg, but he was the luckiest victim in the room; the jars lining the walls are full of victims who were deprived of the experience of life. The latter picture is of a hospital supporting the malformed children, many of which are, with reasonable inference, wholly dependent on such hospitals for their very preservation. This sort of thing does not simply ‘happen in war’; they are premeditated destruction of an entire population.

The physical consequences are pretty self-evident and overshadow the subtler but no les sinister destruction of sustenance. Not only did US forces destroy food sources, it was government policy4. During and after chemical raids and forced relocations, the crops were burned from both storage and field. Many times brochure type notices were spread through the villages ‘encouraging’ relocation; with their bodies maimed, their homes burned down, their food destroyed, and their land and water poisoned, Captain Johnson candidly admits that “the message was clear to the people in the countryside: leave your homes or we will kill you” 4. Hamlets and the process of forcing Vietnamese civilians into them is nothing if not ‘deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part’. Violating Article II C this way was an end whose means included the violation of both Article II A and B. One word, however, stands as the impediment to all of the above convictions and that is intent.

Kill! Kill! Kill!


            As more of a brief address of the strongest counterargument, this section will cover the objectives behind US actions. The atrocities are not justifiable as simple collateral damages of war. From the individual ground forces all the way up the system, racism was prevalent against the Vietnamese; President Lyndon B. Johnson said himself that “Unless the United States has unchallengable air power, we shall be hostage to every yellow dwarf with a pocket knife”3. If he had replaced ‘yellow dwarf’ with ‘communist’, it would still be used as a slur, but would at least be in line with the excuse for the war. However, ‘yellow dwarf’ and ‘communist’ are not synonymous terms, there is blatant anti-Asian racism in the President’s view on the war. Johnson essentially validates the assertion that there is an abuse of air forces, like the aforementioned chemical raids, and that they are on racial grounds against ‘yellow dwarves’. This contempt was pervasive through all levels of US armed forces, not just the Commander in Chief.

When Representative John F. Seiberling asked Captian Johnson about racism in the Dellums ad hoc hearings, he could not cite any written examples but summarized the general attitudes of American troops as “disdain and disgust of the Vietnamese”4. This dehumanization process is an integral requisite for genocide and began for many of the veterans at West Point Academy. The most innocent seeming step toward dehumanizing the Vietnamese was the employment of racial slurs like ‘gooks’ and ‘dinks’4. When people are reduced to ‘dinks’ however, there is a removal of the moral obligation to treat them respectfully as an enemy and opens unleashes the capacity for extermination. Dr. Gordon Livingston, himself a West Point graduate of 1960, gives multiple accounts of subtle indoctrinating aspects like these slurs. He includes, also, more overt examples like that of General Patton telling his staff (of which Dr. Livingston was a part) that their job in Vietnam was 90 percent killing and 10 percent pacification4. The ability of the US government to propagandize annihilation of the Vietnamese people is disgustingly impressive, and is summed up conclusively by Americal Division APC Driver Gary Battles saying that “the first thing I noticed in the Army was like marching around singing songs about killing, and I saw signs around certain places on the camp that said VIET CONG – BREAKFAST OF CHAMPIONS” 4. The culmination of this “Kill! Kill! Kill!” indoctrination takes form in two practices certainly outside the casualties of war: body counts and free-fire zones4.

The organization of the United States’ armed forces is hierarchical and includes mobility through ranked positions; advancement in military rank in Vietnam was contingent upon an officer’s ‘body count’. A body count was essentially a score, a tallied amount of Vietnamese whose deaths were attributed to the commanding officer of the troop, infantry division, etc. 4. Regardless of the status of the dead (combatant, VC, civilian, farmer, adult, child, man, woman, healthy, ill) their lives translated to a notch toward the commander’s esteem. US Army Captain Michael O’Mera recounts that the emphasis on body counts was so tremendous that it was the only measure of success in Vietnam4. There were posting boards in military camps displaying standard issued information, maybe a map and some telegraphs, among which was the body count of the troop and it was an embarrassment the more static that number remained. An interesting phenomenon regarding these statistics was that they were often, and sometimes grossly, exaggerated4. This suggests that the number of Vietnamese reported slain is overstated and that the decimation may be of a somewhat lesser degree than inferred; at the same time, the necessity to bolster vast numbers of dead Vietnamese is a testament to how important it was that they were indiscriminately eliminated. The statistics may deceive, but they are extremely revealing about the intent behind the numbers. Body count records were the score, but the playing fields were free-fire zones.

Free-fire zones embodied the total disregard for Vietnamese life. Areas and villages were nominated as enemy villages and subsequently as free-fire zones; in these areas, “any thing that moves gets killed” as veteran Gary Battles explains it4. There is no military strategy or tactic involved but depopulation. Specifics of many of these free-fire executions are often left out in place of reiterating the idea as a whole, but one instance verifies the driving forces behind both free fire zones and body counts. One night in a designated free-fire zone, an officer steps out of the camp to relieve himself. Hearing a noise in the darkness he opens fire through the foliage and then returns to camp. Upon morning, the men discover no bodies or even traces of blood, but simply trees riddled with bullets; a body count of multiple dead Viet Cong is added to the total4. This story gives a glimpse of the multifaceted ideas driving the intent vital to the indictment of genocide. Killing Vietnamese people was so much the purpose of the war that Americans were told to kill on sight and pressured into inflating their death toll. Certain brutalities are accepted as a necessary evil of warfare, but there remains a level of civility; the regressive designs for the United States war against the people of Vietnam assumes barbarism in civility’s stead.


            The lack of repercussion for the United States’ action in Vietnam has been long-hidden away, especially in American culture. The Vietnam War is a recent event in modern history and leaves a sour taste in many people’s mouths. Many people, including my own parents, are part of the ‘Vietnam generation’, if you will, and I understand the hesitancy and neglect of the issue. The fact of the matter remains, however, that there was a clear violation of the genocide convention treaty. Concentration camp hamlets, chemical warfare with effects extending years beyond the war, and the appalling exterminationist motivation clearly fit the conditions that define genocide.

In continuation of the philosophy-driven argument, there remains the question of ‘will conviction ever happen?’. Committing genocide is a well defined crime, and one which the United States is guilty; but if no persecution ensues, if we do not hold ourselves to the standards which we hold the world as Justice Jackson said, then what purpose does the law serve? Therein lies the irony of the title, ‘We Plead the Fifth’, that we are unwilling to incriminate ourselves. The Fifth Amendment does not apply to international law. People of the world should demand that responsibility be taken by the United States because we are not, apparently, going to confess.


1 “International Conference on Military Trials : London, 1945 – Minutes of Conference Session of July 23, 1945.” The Avalon Project. Yale Law School. Web. <http://avalon.law.yale.edu/imt/jack44.asp&gt;.

2 United Nations. “Convention on the Prevention and Punishment of the Crime of Genocide.” Audiovisual Library of International Law. Web. <http://treaties.un.org/doc/Publication/UNTS/Volume%2078/volume-78-I-1021-English.pdf&gt;.

3 Russell, Bertrand. War Crimes in Vietnam. New York: Monthly Review Press, 1967. Print.

4The Dellums Committee Hearings on War Crimes in Vietnam. First ed. New York: Vintage Books, 1972. Print.

5 Hunganhqn. Arbitrary arrests, torture, beatings!. 2007. Photograph. UpdateSofts, Quang Ninh. Web. <http://forums.updatesofts.com/showthread.php?t=101476&page=7&gt;.

6 Forbes, Alex. Photograph. Summit Lake. Web. <http://summitlake.com/graphics/Jalbum-Vietnam/Vietnam_04_Aug1963/slides/scan0030.html&gt;.

7 Duclos, Alexis. L’agent Orange. Photograph. Alexis Duclos Photographe. Web. <http://alexisduclos.com/index.php&gt;.