Solis, Gary Dean
(1992)
American military justice and the law of war: A case study of military law in Vietnam.
PhD thesis, London School of Economics and Political Science.
Abstract
During the Vietnam War, in Son Thang hamlet, a five-man American patrol murdered sixteen Vietnamese noncombatant women and children. The crime was discovered and the five apprehended. International treaties define much of the law of war. That law requires apprehension and trial of those committing "grave breaches." The manner of their prosecution is undefined. The research question, resolved through examination of the Son Thang incident and its subsequent prosecutions, is whether the United States, through its military justice system, meets its obligations under customary law of war. The study is unique in illustrating the law of war from treaty, to application, through appeal. Also examined are jurisdictional bases, the vitality of the defense of obedience to orders, and whether a good faith effort was made to prosecute the suspects - and whether good faith translated into effective prosecutions. The case offers a unique opportunity to observe U.S. military criminal process. A grave breach was committed at Son Thang, although the victims' status, citizens of a co-belligerent, placed even that in issue. But prosecution clearly was required. Before those prosecutions are detailed, the sources and history of law of war are noted, their translation into military law traced. Application of the law of war at Nuremberg is related, as it is in Vietnam. Employing interviews and trial records, the Son Thang events are described and juxtaposed with aspects of today's law of war and U.S. military law embodied in the Uniform Code of Military Justice. In assessing that Code's effectiveness, its procedural aspects are briefly compared with civilian models. Appellate resolutions of the Son Thang cases are discussed, their results compared to similar prosecutions and sentences. Finally, recommendations are offered to improve prosecution of war crime cases in future wars and to enhance compliance with the laws of war.
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