Legal and Policy Issues of the Indo-China War · Legal and Policy Issues. of the Indo-China War....

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Advanced Topics in National Security Law

Legal and Policy Issuesof the Indo-China War

Professor John Norton MooreProfessor Robert F. TurnerUniversity of Virginia School of Law

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Legal and Policy Issuesof the Indo-China War

Professor John Norton MooreProfessor Robert F. TurnerUniversity of Virginia School of Law

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Geneva, SEATO, Tonkin Gulf, and the American Buildup in Vietnam

Professor Robert F. TurnerUniversity of Virginia School of Law

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Reassessing theConventional Wisdom

Was Ho Chi Minhreally a potential “Asian Tito”?

First a loose end from last Wednesday’s class

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Reassessing theConventional Wisdom

Was Ho Chi Minhreally a potential “Asian Tito”?

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Was Ho Chi Minha Potential “Asian Tito”?

• In a 1924 Report to the Comintern, Ho referred to “my country, Indochina”

• Most followers of Ho’s Viet Minh Front were motivated by Nationalist appeals

• Ho tried to conceal his Comintern past, and “dissolved” the ICP in 1945 (it went underground)

• In 1959, Ho referred to his “family” as being “the working class throughout the world”

• Ho’s May 1969 “Last Will and Testament” anticipated “the day when I go and join venerable Karl Marx, Lenin, and other revolutionary elders”

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Ho Chi Minh’s Governmentand Tito’s Yugoslavia (1950)

• 14 January - Ho Chi Minh announced a desire to establish diplomatic relations with “all countries”

• 21 February - Tito’s Government announces it has accepted Ho Chi Minh’s offer to establish diplomatic relations

• 22 February - The New York Times proclaims this was “the most sensational victory over the Soviet Government” since Tito’s split with Stalin

• 27 February - Hanoi sends Tito telegram saying “We take good note of your answer to our telegram asking recognition by the democratic nations.”

• 16 March - The New York Times reports Hanoi denounces Tito as “a spy for American imperialism.”

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Ho Chi Minh on VWP Resolution ApprovingSoviet Invasion of Hungary (1956)

“This declaration testifies to the international solidarity between our country and the Socialist countries headed by the Soviet Union.”“The Vietnamese people are very glad to see that the brotherly Hungarian people, with the just help of the Soviet Army, have united and struggled to frustrate the dark schemes of the imperialists.”

- 4 Ho Chi Minh, Selected Works 220 (1962).

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North Vietnamese 1957 Attack on ‘Revisionism’following Visit to Tito’s Yugoslavia

“All frenzied attacks of imperialism in every form, particularly under the signboards ‘national communism’ or ‘revisionism,’ aimed at sowing discord among and destroying the forces of socialism will certainly be smashed by the monolithic solidarity of brotherly parties and countries in the socialist camp headed by the Soviet Union.”

- Vietnam News Agency (Hanoi), 8 September 1957

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VWP First Secretary Le DuanAttacks “Titoism” (3d Party Congress, 1960)

“The modern revisionists represented by the Tito clique in Yugoslavia are trumpeting that the nature of imperialism has changed. . . . [I]f we want to lay bare the aggressive and bellicose nature of imperialism . . . the Communist . . . parties must necessarily direct their main blow against revisionism. . . . It is precisely the Chinese Communist Party, headed by Comrade Mao Tse-tung, which has most brilliantly carried into effect the teachings of the great Lenin.”

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Vietnamese Communists EndorseInvasion of Czechoslovakia (1968)

“In response to the call of the Czechoslovakian Communists who wished the Warsaw Pact nations to intervene and stop the conspiracy of the Czech reactionaries, the USSR, Hungary, Bulgaria, Poland, and East Germany sent their troops into this country.The attitude of our Party is to support the action taken by the USSR since it was a legitimate and essential action which symbolized such noble principles as to protect by all means the Socialist Bloc and the Socialist Revolution.”

- “Special Circular Concerning the Situation in Czechoslovakia” - distributed in South Vietnam by COSVN

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ICP Secretary GeneralTruong Chinh on “Nationalism”

“We must oppose every manifestation of bourgeois nationalism, the enemy of proletarian internationalism, which isolates our country.”

- Forward Along the Path Charted by K. Marx p. 4 (1969)

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The Pentagon Papers onHo Chi Minh as an Asian “Tito”

“Ho’s well-known leadership and drive, the iron discipline and effectiveness of the Viet Minh, the demonstrated fighting capability of his armies, a dynamic Vietnamese people under Ho’s control, could have produced a dangerous period of Vietnamese expansionism. Laos and Cambodia would have been easy pickings for such a Vietnam. . . .

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The Pentagon Papers onHo Chi Minh as an Asian “Tito”

Thailand, Malaya, Singapore, and even Indonesia, could have been next. It could have been the ‘domino theory’ with Ho instead of Mao . . . . The path of prudence rather than the path of risk seemed the wiser choice [for the US to follow].”

- 1 Pentagon Papers 52 (1971).

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Ho as Tito:The Key Issue

The real question was not whether Ho Chi Minh “loved his country” (his Comintern name “Nguyen Ai Quoc” translated roughly “Smith who loves his country”), but whether Ho was an “internationalist” favoring the exportation of armed revolution around the globe or a “revisionist” (like Tito after 1948) who opposed Moscow’s control of Communist parties and favored a “peaceful transition to Socialism.” A strong “Titoist,” it was argued, could actually have been a “buffer” to Communist infiltration in Southeast Asia. But Ho sided with Mao on “armed struggle.”

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Reassessing the“Ho as Tito” Analogy

Professor R.J. Rummel concludes in Death by Government that the Tito Government killed more than one million of its citizens between 1944 and 1987 - and during a four year period during World War II it killed more than 2% of its population each year, making it the third most lethal regime in the world during the twentieth century.

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Interestingly, according to Professor Rummel’s data, in terms of actual numbers, Communist Vietnam killed 1,670,000 of its own people versus a more modest 1,072,000 for Tito’s Yugoslavia.

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Interestingly, according to Professor Rummel’s data, in terms of actual numbers, Communist Vietnam killed 1,670,000 of its own people versus a more modest 1,072,000 for Tito’s Yugoslavia.

One might add that Pol Pot (whom Prof. Rummel estimates killed more than 2 million Cambodians—about 31% of the population—viewed himself as a “Titoist” and studied in Yugoslavia during the Tito regime.

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Prelude to War

The 1954 Geneva Conference;

SEATO;

Ngo Dinh Diem

Hanoi decides on armed struggle;

the Tonkin Gulf incident(s); and

the U.S. Military Buildup in Vietnam

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The 1954 Geneva Conferenceon Indo-China

The day after Dien Bien Phu fell, the Geneva Conference that had been discussing the Korean War problem turned to consideration of the situation in Indochina.

(This was no coincidence—Chinese political advisers had persuaded Gen. Giap to delay the final assault for maximum impact on Geneva.)

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The 1954 Geneva Conferenceon Indo-China

Delegation positions:• France• Viet Minh (and Communist Regimes)• Associated States (South Vietnam)• United States

The Issue of July 1956 Elections

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Pentagon Papers: Communists BlockedEffective Supervision of Geneva Accords

“In the original Viet Minh proposals, implementation of the cease-fire was left to joint indigenous commissions, with no provision for higher, international supervision. . . . Molotov expressly rejected the American plan, supported by the Indochinese delegations and Great Britain, to have the United Nationssupervise a cease-fire. . . . Molotov . . . saw no reason why [a Neutral Nations Supervisory Commission] could not reach decisions by unanimous vote on “important” questions. . . .

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Pentagon Papers: Communists BlockedEffective Supervision of Geneva Accords

“The Communists . . . clearly hoped to duplicate in Indochina the ineffective machinery they had foisted on the United Nations command [in Korea], one in which effective peacekeeping action was basically proscribed by the built-in veto of a four-power authority evenly divided among Communist and non-Communist representatives.”

- The Pentagon Papers, vol. 1, pp. 140-41 (Gravel ed. 1971)

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Pentagon Papers: South Vietnam ProtestedPartition; Favored U.N Supervised Elections

[Cable from U.S. Mission, Geneva, to Secretary of State Dulles (19 Jul ‘54)]

“Vietnamese DEL handed us late this afternoon their new proposal . . . QUOTE French, Soviet, and Viet Minh drafts all admit the principles of a partition of Vietnam into two zones, all of North Vietnam being abandoned to the Viet Minh. Although this partition is only provisional in theory, it would not (repeat not) fail to produce in Vietnam the same effects as in Germany, Austria, and Korea . . . The Vietnamese DEL therefore proposes: . . .(5) Control by the United Nations . . .

(A) Of the cease-fire . . .(E) Of the general elections, when the United Nations believes

that order and security will have been everywhere truly restored.”

The Pentagon Papers, vol. 1, pp. 569-70 (Gravel ed. 1971)

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Position of South Vietnamat 1954 Geneva Conference

• The Associated “State of [South] Vietnam” had on 4 June 1954 been recognized by France as “a fully independent and sovereign state in possession of all qualifications and powers known in international law”

• Throughout the conference South Vietnam protested over being excluded entirely from French-Viet Minh talks

• South Vietnam protested partition and called for UN-supervised elections

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Position of South Vietnamat 1954 Geneva Conference

• At final session of Conference (21 July), Delegation head Dr. Tran Van Do announced:

• “[T]he Government of the State of Vietnam wishes the Conference to take note of the fact that it reserves its full freedom of action in order to safeguard the sacred right of the Vietnamese people to its territorial unity, national independence, and freedom.”

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The 1954 “Geneva Accords” InvolvedTwo Distinct Documents on Vietnam

• Agreement on the Cessation of Hostilities (20 July)

• Final Declaration of the Geneva Conference (21 July)

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Agreement on theCessation of Hostilities in Vietnam (20 July)

• International treaty signed by France and DRV (Viet Minh) at Midnight 20 July (clock in conference room was unplugged to meet deadline)

• Divided North and South Vietnam with a “provisional demarcation line” at 17th parallel (Art. 1)

• Called for withdrawal of military forces and free movement of people (Arts. 14-15)

• Envisioned “general elections which will bring about the unification of Vietnam” (Art. 14) [No date or details set.]

• Established an International Control Commission (ICC) of Canada, Poland, and India (Chair) requiring unanimous vote for issues concerning violations “which might lead to a resumption of hostilities” and other key issues (Arts. 42-43) [Thus Communists had a veto on effective supervision.]

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Final Declarationof the Geneva Conference (21 July 1954)

• Unsigned political document providing that the Conference “takes note” of the various provisions of the signed cease-fire agreement and other statements and accompanied by various unilateral declarations;

• Declared that “general elections shall be held throughout Vietnam in July 1956 under the supervision of an international commission composed of representatives of the Members States of the International Supervisory Commission [the ICC] . . .”;

• The United States and the State of [South] Vietnamformally disassociated themselves from the Final Declaration and signed no documents at Geneva.

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Pentagon Papers: Text of U.S. Declarationat Final Session of Geneva Conference

“As I stated on July 18, my Government is not prepared to join in a declaration by the Conference such as is submitted. However, the United States makes this unilateral declaration of its position on these matters: . . . In connection with the statement in the declaration concerning free elections in Viet-Nam my Government wishes to make clear its position which it has expressed in a declaration made in Washington on June 29, 1954, as follows:

‘In the case of nations now divided against their will, we shall continue to seek to achieve unity through free elections supervised by the United Nations to insure that they are conducted fairly.’”


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The 1954 SEATO Treaty

Original Parties:• Australia• France• New Zealand• Pakistan• Philippines• Thailand• United Kingdom• United States

“Protocol States” covered by SEATO:• State of [South] Vietnam• Cambodia• Laos

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SEATO Treaty6 U.S.T. 81, 83 (1955)

Article IV

“Each Party recognizes that aggression by means of armed attack in the treaty area against any of the Parties or against any State or territory which the Parties by unanimous agreement may thereafter designate, would endanger its own peace and safety, and agrees that it will in that event act to meet the common danger in accordance with its constitutional processes.”

- Approved by Senate 82-1 (South Vietnam, Laos, and Cambodia were “designated” in a protocol to the treaty.)

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What Was the Effect of Prince Sihanouk’s Denouncement of SEATO?

• Cambodian Head of State Prince Norodom Sihanouk promptly denounced the SEATO Treaty and said Cambodia would have nothing to do with it.

• What effect, if any, did this have on the treaty commitment by the parties to the SEATO Treaty?

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Answer: The SEATO Treaty must be interpreted consistent with the UN Charter. The SEATO parties had no legal right to intervene in Cambodia without Security Council authorization, permission from that country’s government, or in legitimate self-defense or collective self-defense under the Charter. Thus, while in power, Prince Sihanouk could effectively neutralize that portion of the SEATO Treaty. But he could not modify the Treaty or prevent a successor (like Prime Minister Lon Nol in 1970) from requesting SEATO assistance in the future.

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Answer: The SEATO Treaty must be interpreted consistent with the UN Charter. The SEATO parties had no legal right to intervene in Cambodia without Security Council authorization, permission from that country’s government, or in legitimate self-defense or collective self-defense under the Charter. Thus, while in power, Prince Sihanouk could effectively neutralize that portion of the SEATO Treaty. But he could not modify the Treaty or prevent a successor (like Prime Minister Lon Nol in 1970) from requesting SEATO assistance in the future.

But this applies only to the “consent” element – he could not deprive other States of self-defense rights.

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Richard Goodwin on theImportance of the SEATO Treaty

“One can search the many statements of Presidents and diplomats in vain for any mention of the SEATO Treaty . . . . The treaty argument is, in truth, something a clever advocate conceived a few months ago.”

- Richard N. Goodwin, Triumph or Tragedy:Reflections on Vietnam 19 (1966).

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The Issue of theJuly 1956 Elections

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Professor George Kahinon U.S. Position on 1956 Elections

“But with American encouragement, Diem refused to permit the elections in 1956 . . . [B]y encouraging Diem to defy this central provision of the Geneva Agreements, the United States reneged on the position it had taken there in its own unilateral declaration. Civil war in Vietnam became inevitable.”

- Widely quoted statement from 1965 “Teach In”

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David Shoenbrunon Proposed 1956 Elections

“Washington and its supporters still claim today that free elections could not have been held in North Vietnam. They may well be right. The fact is, however, that they never once raised such a contention in the course of the Geneva Conference. The fact is that they never held a single meeting or put forward a single proposal to impose the conditions of free elections or to put the Communists to the test and expose them. . . . Since the elections were not held, then the entire agreement was null and void.”

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North Vietnam and theGeneva Elections Issue

• 10 May 1954 - Pham Van Dong proposed “supervision of post-Geneva elections by local commissions”

• 10 May 1960 DRV Election• 99.85% voter turnout in Hanoi area (97% overall)• Bernard Fall observed: “There were no electoral booths or other means of

ensuring secrecy of voting. Ballots were written out in full view of all persons in the polling stations, at open tables with aides standing ready to ‘help the comrades who had difficulty in making out their ballot.’”

• Ho Chi Minh received 99.91%• Other key Communist Leaders received 98.75-99.6%

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Prof. Victor Bator on1956 Elections Issue

“It appears obvious that the unification of Vietnam — . . . to be achieved by a referendum-type of election in July, 1956, two years after Geneva — could not have been seriously contemplated.”

- Victor Bator, Vietnam: A Diplomatic Tragedy 129 (1965).

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DRV Negotiator Pham Van Dongon Proposed 1956 Elections

“You know as well as I do that there won’t be any elections.”

- Quoted by P.J. Honey,Communism in North Vietnam 6 (1962)

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Hanoi Contended that France, NotSouth Vietnam, was bound by Geneva

“[W]e demand that the French Government should correctly implement the agreements they have signed with us.”

- President Ho Chi Minh (22 July 1954)* * * * * * *

“[I]t was with you, the French, that we signed the Geneva Agreements, and it is up to you to see that they are respected.”

- Premier Pham Van Dong (1 January 1955)

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Ho Chi Minh Recognized South VietnamWas Not “Party” to Geneva Accords

“We demand the southern authorities to correctly implement this [Geneva] agreement. France, a party to it, must honour her signature and fulfill her duty.”

- 4 Ho Chi Minh,Selected Works 111 (1962)

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Eisenhower on Vietnam

“I am convinced that the French could not win the war because the internal political situation in Vietnam, weak and confused, badly weakened their military position. I have never talked or corresponded with a person knowledgeable in Indochinese affairs who did not agree that had elections been held as of the time of the fighting, possibly 80 per cent of the population would have voted for the Communist Ho Chi Minh as their leader rather than Chief of State Bao Dai.

[Continued on next slide.]

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Eisenhower on Vietnam - 2

[Continued from previous slide]

“Indeed, the lack of leadership and drive on the part of Bao Dai was a factor in the feeling prevalent among Vietnamese that they had nothing to fight for. As one Frenchman said to me, ‘What Vietnam needs is another Syngman Rhee, regardless of all the difficulties the presence of such a personality would entail.’”

- Dwight D. EisenhowerMandate for Change: 1953-1956 at 449 (1965)

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Contemporary cartoon of Emperor Bao Dai

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The 1956 Elections Issue(New York Times (Editorial), 5 March 1956)

“[F]ree Vietnam has never endorsed the idea of such an election, and it is unlikely to do so until there is evidence that it could really be free. To attempt to settle the fate of the free Vietnamese without even consulting them in monstrous. To suggest a ‘free’ election in a Communist territory is to presume the possible existence of conditions and safeguards for which there is neither assurance nor precedent.”

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The 1956 Elections Issue(New York Times (Editorial), 6 April 1956)

“The plain fact is that neither the truce commission nor the signatories to the Geneva agreement have as yet established in Communist-dominated North Vietnam the essential conditions provided by the agreement for a ‘free expression of the national will.’ . . . Premier Diem is right and duty-bound to reject the proposed elections until the necessary conditions for freedom have been established in the North.”

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British Position on1956 Elections Issue

As co-chairman of the 1954 Geneva Conference, Great Britain sent a note to the Soviets (the other co-chair) on 10 April 1956 complaining that, since the conference ended, the South Vietnamese army had been reduced by 20,000 men, while the North Vietnamese Army increased from 7 to 20 divisions. It also recognized that South Vietnam was not legally bound by the armistice agreements since it had not signed them and had protested against them at the Geneva Conference.

- New York Times, 11 April 1956

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Pentagon Papers: Why the United Statesand South Vietnam Opposed “Elections”

“It is almost certain that by 1956 the proportion which might have voted for Ho - in a free election against Diem - would have been much smaller than 80%. Diem’s success in the South had been far greater than anyone could have foreseen, while the North Vietnamese regime had been suffering from food scarcity, and low public morale stemming from inept imitation of Chinese Communism - including a harsh agrarian program that reportedly led to the killing of over 50,000 small scale “landlords” . . .

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Pentagon Papers: Why the United Statesand South Vietnam Opposed “Elections”

[T]he basis for the policy of both nations [SVN & US] in rejecting the Geneva elections was . . . convictions that Hanoi would not permit “free general elections by secret ballot,” and that the ICC would be impotent in supervising the elections in any case.


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Ngo Dinh Diem and the“Republic of Vietnam”

�South Vietnamese Premier Ngo Dinh Diem (Left)

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Ngo Dinh DiemAs Seen by Prominent French Scholars

Diem was a man “known for his perfect integrity, his competence, and his intelligence as far back as 1933.”

- Phillippe Devillers, Historie du Vietnam de 1940à 1952 at 63

“[T]he most respected and influential nationalist leader.”

- Paul Mus, Vietnam: Sociologie d’une guerre 166.

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Historian Joseph Buttinger on Ngo Dinh Diem

“Diem was the leader whose record and talents made him most fit for the task of building a new state out of chaos . . . His untainted integrity, his tenacious refusal to compromise with colonialism, and his profound insight into the political nature of his enemies were topped only by the courage he displayed toward friend and foe in creating the truly independent and strictly unified administration that his country then needed more than food and arms.”

- Vietnam: The First Five Years 30 (Richard W. Lindholm ed. 1959)

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Stanley Karnow on Ngo Dinh Diem

“By 1954, following the Geneva Conference, reputable Vietnamese nationalists outside the ranks of the Viet Minh were scarce. Many had been liquidated by the Communists . . . .

“[Diem] . . . was honest, courageous, and fervent in his fidelity to Vietnam’s national cause; even Ho Chi Minh respected his patriotism.”

Stanley Karnow, Vietnam: A History 213 (1983)

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Diem v. Bao Dai Referendum(October 23, 1955)

On October 23, 1955, Diem held a nation-wide referendum in South Vietnam between himself and Bao Dai (who was still living on the Riviera):

DIEM: 5,721,735

BAO DAI: 63,017

On October 26 Diem proclaimed the Republic of Vietnam.

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Diem v. Bao Dai Referendum(October 23, 1955)

Thus, Diem won by more than 90% over Bao Dai whereas Eisenhower predicted that Ho would have won 80%.

The 1955 elections were far from perfect, but generally praised by foreign observers.

The clear reality was that Bao Dai was widely recognized as nothing more than a puppet of French colonialism.

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Diem’s “Miracle”in South Vietnam

Between 1954 and 1959:• primary school enrollment in SVN increased from 400,865

to 1,243,918;• secondary school attendance increased 400%;• university enrollment increased 350%• Public health spending increased 40,000%• smallpox deaths dropped from 704 to 3• textile production up 325%• rice exports up more than 500%Then the VC began burning schools, killing teachers and

doctors, etc.

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Diem’s Reforms andViet Cong Terrorism

The Labour Code of South Vietnam is of a relatively high standard for this part of the world. It has followed the American pattern, with trade unions and arbitration courts. Social Security services have begun, and the health services are the best in the east.Almost every comment about the country needs the sad qualification: “Until the scheme was disrupted by Viet Cong violence.”

- Bernard Newman, Background to Vietnam 131 (1966)

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The Demise of Diem

• Diem had refused to be a puppet for the French, Japanese, and Viet Minh; but Henry Cabott Lodge and other Americans could not tolerate Diem’s refusal to follow instructions from his American “superiors.”

• When the An Quang Buddhists alleged Diem was discriminating in favor of Catholics, JFK (America’s first Catholic president) could not back him without taking heat.

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The American Objections

• Diem was unlike many Third World leaders, who treated their U.S. “advisers” almost as a procounsel.

• When the Americans told him he would face a Korean-style invasion across the 17th parallel, Diem replied he would more likely face a guerrilla war. His stubbornness was occasionally overcome by Washington’s refusal to provide aid unless he accepted their advice.

• The arrogant U.S. Ambassador Henry Cabot Lodge despised Diem.

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�In contrast, Amb. Fritz Nolting (on right — later a UVA professor) had great respect for Diem.

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Buddhist Thich Tri Quangand the Viet Minh

Militant Buddhist Monk Thich Tri Quang admitted having worked with the Viet Minh in the 1940s and later leading a Buddhist group for Ho Chi Minh, but claimed to have had a “falling out” with Ho by the early 1960s.

- Marguerite Higgins, Our Vietnam Nightmare 29

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Thich Tri Quang (front left) leads one of numerous anti-Diem demonstrations by Buddhist monks in 1963.

�Buddhist protests help bring

down Diem

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Final Conversation Between Lodge and Diem (Nov. 1, 1963)

DlEM: Some Units have made a rebellion and I want to know, what is the attitude of the U.S.?

LODGE: I do not feel well enough informed to be able to tell you. I have heard the shootings but with[out?] all the facts. Also, it is 4:30A.M. in Washington and the U. S. Government cannot possibly have a view.

DIEM: But you must have some general ideas. After all, I am Chief of State. I have tried to do my duty. I want to do now what duty and good sense require. I believe in duty above all.

[continued]

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Final Conversation Between Lodge and Diem (Nov. 1, 1963)

LODGE: You have certainly done your duty. As I told you only this morning, I admire your courage and your great contribution to your country. No one can take away from you the credit for all you have done. Now I am worried about your physical safety. I have a report that those in charge of the current activity offer you and your brother safe conduct out of the country if you resign. Had you heard this?

DlEM: No. (pause) You have my phone number.LODGE: Yes. If I can do anything for your physical safety,

please call me.DIEM: I am trying to re-establish order (hangs up).

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The Assassinations ofDiem & Nhu

• Junior U.S. officials in Washington worked (conspired?) with Saigon Embassy to encourage anti-Diem coup while key senior players were out of town.

• People like Rusk eventually concurred after being told JFK had approved and issue was settled.

• Major study by U.S. Government suggests no U.S. role or prior knowledge that Diem and brother Nhu would be murdered. (Not a “CIA assassination.)

• JFK so shocked at learning of assassinations that he had to leave the room.

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Reaction of Bui Cong Tuongto Diem’s Death

“We heard it on the radio and thought it must be a trick. Surely the Americans could not be so foolish as to allow Diem to be killed.

“Because he would not accept the Party’s leadership, we had to discredit him with the people. But we Party leaders considered him a great patriot—like Ho Chi Minh.”

—Conversation with Robert Turner en route by car from Ben Tre to Saigon (1971). Bui Cong Tuong was perhaps the

most senior Viet Cong official to defect during the war.

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Post Script: UN Investigation ofDiem’s Treatment of Buddhists

After 16 governments criticized religious persecution in SVN, Diem invited a UN “fact-finding” mission.Costa Rican Ambassador Fernando Volio Jimenez (who on the basis of press reports was prepared to condemn Diem) said after his visit: “It is my personal feeling that there was no policy of discrimination, oppression, or persecution against the Buddhists on the basis of religion.”324-page UN Report released after Diem killed and largely ignored.

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Back in 10 minutes

Let’s take a break

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Hanoi’s Decision to“Liberate” South Vietnam

and the Birth of the“National Liberation Front”

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The “Viet Cong”

Contrary to the 1954 Geneva agreement, Hanoi instructed many of its forces to remain behind in South Vietnam, hiding their weapons until instructed to resume armed struggle. These were the first Communist forces to begin attacks on the South Vietnamese Government. They were called “Viet Cong” (for Viet Nam CongSon, or “Vietnamese Communists”).

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The “Viet Cong” and theLaw of Armed Conflict

• To qualify for full protections of the 1949 Geneva Convention on POWs, combatants must, inter alia, wear an identifiable uniform or insignia and carry arms openly. By dressing as peasants and resorting to terrorist tactics (grenades in buses and markets, assassinating local officials), the Viet Cong intentionally blurred the distinction between combatants and innocent civilians.

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• To qualify for full protections of the 1949 Geneva Convention on POWs, combatants must, inter alia, wear an identifiable uniform or insignia and carry arms openly. By dressing as peasants and resorting to terrorist tactics (grenades in buses and markets, assassinating local officials), the Viet Cong intentionally blurred the distinction between combatants and innocent civilians.

They intentionally tried to trick U.S. and ARVN forces into firing on civilians, knowing they could exploit any civilian casualties with propaganda.

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• By blurring this distinction, the VC hoped to build distrust between government soldiers and the South Vietnamese people, as soldiers could not tell whether a civilian was really a VC or not.

• This violation of Geneva principles ultimately contributed to war crimes like My Lai when U.S. soldiers could not distinguish between innocent civilians and lawful targets.

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• However, the United States made a policy decision that we would give Viet Cong detainees the full protections of the Third Geneva Convention (POWs), with one exception: • Viet Cong captured while engaged in acts of

terrorism were not given Geneva protection.• The ICRC wrote Gen. Westmoreland that

never before had a military force gone to greater lengths to safeguard the LOAC.

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Stanley Karnow onViet Cong Terrorism - I“[In 1959] northern leaders issued new instructions . . . The directive did not yet call for guerilla warfare. It signified, in simple language, that the Vietcong could now terrorize Diem’s officials and other ‘traitors’ - the assassination campaign was to focus particularly on honesthamlet chiefs and schoolteachers whose popularity represented a threat to the Communists.”

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Stanley Karnow onViet Cong Terrorism - II

“Statistics reflect the toll of Vietcong terrorism. Between 1959 and 1961, the number of South Vietnamese government officials assassinated soared from twelve hundred to four thousand a year, and the murders evoked precisely the reaction from Diem that the Vietcong wanted.”

- Stanley Karnow, Vietnam: A History 237-38 (1983).

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Stanley Karnow onViet Cong Terrorism - II

“Statistics reflect the toll of Vietcong terrorism. Between 1959 and 1961, the number of South Vietnamese government officials assassinated soared from twelve hundred to four thousand a year, and the murders evoked precisely the reaction from Diem that the Vietcong wanted.”

- Stanley Karnow, Vietnam: A History 237-38 (1983).

[On a per-capita basis, this is like killing 80,000 America mayors, school teachers, doctors, etc. per year.]

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Hanoi’s Early Strategy:“Make the People Suffer”

“We had to make the people suffer, suffer until they could no longer endure it. Only then would they carry out the party’s armed policy. That is why the party waited until it did.”

- Senior Viet Cong Defectorquoted in Jeffrey Race,

War Comes to Long An 112 (1972)

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Why the Viet CongAssassinated Schoolteachers

“Why were there assassinations of teachers, many of whom did not even work for the government? Because they were people with a profound understanding about politics, people who were pure nationalists, who might be able to assume anticommunist leadership in their areas. Such people are very dangerous and hence are classified as traitors.”

- Viet Cong Defector, quoted inJeffrey Race, War Comes to Long An 83.

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The Origin and Independence Of the National Liberation Front

for South Vietnam (NLF):

Spontaneous Uprising in the South?or

Puppet Creature of Hanoi?

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Professors Kahin & Lewison the “Independent” NLF

“[The NLF] is not ‘Hanoi’s creation’; it has manifested independence and its Southern. Insurrectionary activity against the Saigon government began in the South under Southern leadership not as a consequence of any dictate from Hanoi, but contrary to Hanoi’s injunctions. Abundant data have been available to Washington to invalidate any argument that revival of the war in the South was precipitated by ‘aggression from the North.’”

- G. Kahin & J. Lewis, The United States in Vietnam 120 (1967)

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Le Duan Calls for a “NationalUnited Front” in South (Sept. 1960)

At the Third Party Congress in Hanoi in September 1960, Party First Secretary Le Duan announced: “To ensure the complete success for the revolutionary struggle in south Viet Nam, our people there, under the leadership of the Marxist-Leninist Party of the working class, must strive to . . . . bring into being a broad National United Frontdirected against the U.S. and Diem and based upon the worker-peasant alliance. . . . The Front must carry out its work in a very flexible manner, in order to rally all forces that can be rallied, win over all forces that can be won over, neutralize all forces that should be neutralized and draw the broad masses into the general struggle against the U.S.-Diem.”

- 1 DRV, Third National Congress of the VNWP 62-63

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Resolution of the Third Party Congress (Sept. 1960)“On the Tasks and Line of the Party in the New Stage”

“To ensure the complete success of the revolutionary struggle in south Vietnam, our people there must strive to . . . . bring into being a broad National United Front.”

- 1 Democratic Republic of Vietnam,Third National Congress of the Viet Nam Workers’ Party

225 (c. 1961?)

�

FYI:

I found these volumes as an undergrad. Learning the truth by reading admissions against interest published in English by Hanoi did not require tremendous ability or effort.

�Party First Secretary Le Duan (Left) and

President Ho Chi Minh at Third Party Congress (Sept. 1960)

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Hanoi Announces Creation of the“National Liberation Front”

“A ‘National Front for the Liberation of South Vietnam’ was recently formed in South Vietnam by various forces opposing the fascist Ngo Dinh Diem regime. This was revealed by Reuters in Saigon . . . .”

- Vietnam News Agency (Hanoi) 29 January 1961

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Any Subtle Hints the NLF WasTied to the DRV?

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Any Subtle Hints the NLF WasTied to the DRV?

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Party Theoretical Journal Hoc TapAdmits Control of NLF (1966) - 1

“On the basis of keeping firm in strategy, our Party cleverly applied its tactics: On the one hand, it cleverly took advantage of the regional and temporary contradictions of the enemy to sow division among them. On the other hand, it united with anyone who could be united, won over anyone who could be won over, neutralized anyone who should be neutralized, completely isolated the imperialists and their most dangerous lackeys . . . .

[Continued]

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“The policy of founding . . . . the Viet Minh front between 1941 and 1951 . . .; the decision of signing the 6 March 1946 preliminary accord; the present NFLSV policy of upholding the mottos of independence, democracy, peace and neutrality, and so forth - all these are typical examples of the clever application of the following instructions of Lenin: ‘It is possible to defeat a stronger enemy. . . .’”

- Hoc Tap (“Studies”), Sept. 1966, No. 9, pp. 1-2 (Hanoi).

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“The policy of founding . . . . the Viet Minh front between 1941 and 1951 . . .; the decision of signing the 6 March 1946 preliminary accord; the present NFLSV policy of upholding the mottos of independence, democracy, peace and neutrality, and so forth - all these are typical examples of the clever application of the following instructions of Lenin: ‘It is possible to defeat a stronger enemy. . . .’”

- Hoc Tap (“Studies”), Sept. 1966, No. 9, pp. 1-2 (Hanoi).

You may recall that we discussed this Lenin quoteLast week.

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North Vietnamese GeneralsAdmit NLF Controlled by Hanoi - I

“Vietnam has at last come clean. In half a dozen sentences in a French television documentary, the North Vietnamese military commander, General Vo Nguyen Giap, and his colleague, General Vo Bam, have demolished some of the myths which helped to swell the anti-Vietnam war movement from San Francisco to Stockholm.

[continued on next slide . . .]

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North Vietnamese GeneralsAdmit NLF Controlled by Hanoi - II

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North Vietnamese GeneralsAdmit NLF Controlled by Hanoi - III

“According to General Bam, the decision to unleash an armed revolt against the Saigon government was taken by a North Vietnamese communist party plenum in 1959. This was a year before the National Liberation Front was set up in South Vietnam. . . . So much for the myth that the Vietcong was an autonomous southern force which spontaneously decided to rise against the oppression of the Diem regime. And General Bam should know. As a result of the decision, he was given the job of opening up an infiltration trail in the south.”

- “We Lied to You,” The Economist (London), 26 February 1983

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Hanoi’s 1984 Admission

• In May 1984, Vietnam Courier admitted VWP’s decision to liberate South Vietnam was made on May 19, 1959, but kept “absolute secret” as the Ho Chi Minh Trail was built and hundreds of thousands of troops were sent south with supplies.

�

Still More Admissions

• In 2002, Univ. Press of Kansas published an English translation of an official Hanoi history of the war that confirms what we have known for decades.

• In the Foreword, Prof. William Duiker notes that “one of the most pernicious myths about the Vietnam War—that the insurgent movement in South Vietnam was essentially an autonomous one that possessed only limited ties to the regime in the North—has been definitively dispelled.”

�

Still More Admissions

• In 2002, Univ. Press of Kansas published an English translation of an official Hanoi history of the war that confirms what we have known for decades.

• In the Foreword, Prof. William Duiker notes that “one of the most pernicious myths about the Vietnam War—that the insurgent movement in South Vietnam was essentially an autonomous one that possessed only limited ties to the regime in the North—has been definitively dispelled.”

I documented this in my 1966 undergrad honors thesis, and in more detail in my 1975 book Vietnamese Communism.

�

Congress Gets on Board

The 1964Gulf of Tonkin

Resolution

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Vietnam Myth No. 26: Congress Was Ignored As LBJ Dragged an Unwilling Nation into an Unpopular War

• If anything, Congress dragged LBJ into Vietnam

• The American people strongly supported the war in the early years (just as they did in Korea in 1950, and Iraq in 2003).

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Gulf of Tonkin IncidentsBackground on DeSoto Patrols

• De Soto Patrols began in March 1962 to gather intelligence on China.• Extended to cover coasts of North Vietnam in December 1962.

Occurred regularly thereafter without incident.• Objectives included providing “information on Viet Cong supply

routes,” providing “realistic training” for U.S. personnel, and “to assert our traditional belief in the right of free use of international waters . . . .”

• Ships remained 20 miles off Chinese coast and 8 miles off North Vietnam coast (4 miles away from any islands).

- Naval History CenterThe United States Navy and the Vietnam Conflict, vol. 2, (1986)

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OpPlan 34A

• Five years after Hanoi began efforts to overthrow RVN, the U.S. was involved in a “covert operation” to send South Vietnamese nationals in small fastboats to harass military targets off the southern coast of North Vietnam. It is possible that Hanoi associated one of these highly-classified attacks with the appearance of the Maddoxseveral hours later much further north. (No evidence this was planned by LBJ or other U.S. officials.)

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Gulf of Tonkin Attack #1(2 August 1964)

• At no time during August did US ships get closer than 8 miles to mainland NVN or 5 miles to islands.

• Early AM, intercepted message from NVN Naval Hq. “ordering coastal forces to prepare for battle that night.” Maddox Commander sent “flash” message and moved away from the coast.

• No further evidence of impending attack. Maddox instructed to resume patrol.

• 2PM, intercepted NVN order to carry out torpedo attack on “enemy.” Maddox took evasive action, increased speed. When 25 miles off coast, threatened by approaching torpedo boats. Maddox fired 3 “warning shots.”

• One torpedo fired, Maddox fired on NVN boats. 3 more torpedoes fired.• Official Hanoi history later acknowledges attack. (Hanoi celebrates

August 2 as “Navy Day”).- Naval History Center

The United States Navy and the Vietnam Conflict, vol. 2, (1986)

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• Following the Aug. 2 attack, LBJ met with cabinet, decided to assume attack was a “mistake” but to send Maddox (with C. Turner Joy for backup) back into Gulf of Tonkin on 4 August to assert “freedom of the seas.”

• Ships told to stay 12 miles offshore. (Actually came no closer than 16 miles.)• Messages intercepted on August 4 indicating another attack planned, Maddox moved

away from coast.• Torpedo attacks confirmed by sight (sea and air), sonar, and radio intercepts. Numerous

witnesses gave same account. Battle lasted 4 hours - U.S. ships fired 249 five-inch rounds plus other weapons.

• Turner Joy was 60 miles from North Vietnam (had not left international waters) when [reported] attacked.

• LBJ approved air attacks against North Vietnam.• LBJ decided to use incident as occasion to seek broad congressional support for direct

U.S. participation in war.

- Naval History Center,The United States Navy and the Vietnam Conflict, vol. 2, (1986)

�


• In retrospect, it is now very uncertain that the second attacks actually occurred.

• The best evidence is that many of the people on the scene in the Tonkin Gulf believed they had been attacked and the initial reports, upon which LBJ acted, were made in good faith.

• Some statements by “witnesses” made after the initial U.S. response may well have been influenced by a desire to be loyal to the Commander-in-Chief, but there is no evidence LBJ was aware of any controversy when he ordered the attacks.

• Moore & Turner both have in recent years changed their positions and now believe the August 4 attacks most likely did not occur.

�The August 2 attacks clearly did occur.

�

Gulf of Tonkin IncidentConfirmed by Pentagon Papers - I

“The documents available to this writer are not conclusive on this point, but the evidence indicates that the occurrence of a DRV provocation at this time results from events over which the U.S. Government exercised little control. . . . [T]here was no reason on the basis of earlier DE SOTO Patrol experience to even suspect that patrol activity might precipitate hostile action by North Vietnam. Although the events of the second attack were less clear-cut, the evidence does not support beliefs (which have been expressed) that the incident was staged. On the contrary, the evidence leads readily to other explanations, which are at least equally as plausible. . . .

[Continued on next slide . . . ]

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Gulf of Tonkin IncidentConfirmed by Pentagon Papers - II

[Continued from previous slide.]

“[R]egardless of motive, there is little question but that the attack on the destroyers was deliberate . . . . fully 60 miles from shore.The reality of a North Vietnamese attack on 4 August has been corroborated by both visual and technical evidence. That is may have been deliberately provoked by the United States is belied to a considerable degree by circumstantial evidence.”

- Pentagon Papers, vol. V,pp. 327-28 (Gravel ed. 1972)

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Naval History CenterConfirms Tonkin Attacks

“American leaders did not seek to provoke a North Vietnamese reaction in order to secure a casus belli, as often has been alleged. . . Neither were the actions initiated by over-zealous North Vietnamese boat commanders. Intelligence unmistakably revealed that the naval headquarters in Ben Thuy and Van Hoa issued the orders . . . That an attack occurred on 2 August is beyond contention. Physical evidence, including a spent Communist round taken from the destroyer’s superstructure and photographs of the enemy naval craft, complement the wealth of other extant information. In addition, the North Vietnamese subsequently acknowledged attacking Maddox . . . . [T]he validity of the 4 August attack also was established, thus convincing American leaders that a strong reaction was warranted.”

- Naval History Center,The United States Navy and the Vietnam Conflict, vol. 2, pp. 435-36 (1986)

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Prof. Cecil Crabb onTonkin Gulf Incident

Enough is known . . . to warrant several reasonably firm conclusions about the Gulf of Tonkin Affair. Some kind of Communist-instigated assault on American naval units did occur on August 2 . . . . Even Hanoi admitted that it had attacked American naval units . . . . The weight of the evidence available clearly supports the conclusion that the Johnson Administration responded to what it perceived to have been a genuine crisis in Gulf of Tonkin.

- Cecil V. Crabb, Jr.The Doctrines of American Foreign Policy 225-26.

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Douglas Pike onGulf of Tonkin Conspiracy Theory

“The conspiracy theory has been dying for several years, and this work [The United States Navy and the Vietnam Conflict] will probably be a stake through its heart. To have a Tonkin Gulf conspiracy means that the several hundred National Security Agency and naval communications cited have been doctored. In turn, that means a minimum of several hundred persons were party to a plot that has remained watertight in sieve-like Washington for two decades. And who is going to believe that?”

- Washington Post Book World, 3 May 1987, p. 10.

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Postscript on August 4 “Incident”

• Since these slides were first made, new evidence has emerged that has persuaded both of us that the second (Aug. 4) attack probably did not occur. But it was reported from the Gulf in good faith and the reports were acted upon in good faith in Washington.

• We know of no evidence that LBJ or any other senior U.S. official “conspired” or tried to “provoke” an attack.

• Most importantly, the Tonkin incident was not the reason we went to war in Indochina.

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LBJ, the Tonkin Res.and Korea

“As a young Senator, I recall very vividly hearing Senator Taft speak . . . about President Truman’s intervention in Korea . . . .Senator Taft thought that President Truman, before he committed our troops in Korea, should have asked the Congress not necessarily for a declaration, but for an opinion - for a resolution . . . .After the Tonkin Gulf . . . we asked the leadership of the Congress to come to the White House. We reviewed with them Senator Taft’s statement about Korea . . . and asked their judgment about the resolution that would give us the opinion of the Congress. We were informed that a resolution was thought desirable.”

- LBJ, live news conference, Aug. 18, 1967

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Stanley Karnow onLBJ and Tonkin Incidents

“Johnson was not wedded to the idea of war. On the contrary, he exercised caution immediately after the Tonkin Gulf affair. He restricted U.S. air strikes against North Vietnam to that single day, and he temporarily suspended both the DeSoto missions and the covert South Vietnamese raids.”

- Karnow, Vietnam: A History 377 (1983).

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Gulf of Tonkin Resolution (1964)

Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and security in southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.

- Pub. L. 88-508, 78 Stat. 384 (1964) (emphasis added);repealed by Pub. L. 91-672 § 12 (1971)

�




This was clearly an AUMF

�




It authorized the use of armed force to protect any “protocol state” of the SEATO Treaty.

�




It authorized the use of armed force to protect any “protocol state” of the SEATO Treaty.

The “protocol states” were [South] Vietnam, Laos, and CAMBODIA.

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Southeast Asia ResolutionNot Just About Tonkin Incidents

“Whereas these attacks [in the Tonkin Gulf] are part of a deliberate and systematic campaign of aggression that the communist regime in North Vietnam has been waging against its neighbors and the nations joined with them in the collective defense of their freedom . . . .”

- Gulf of Tonkin Resolution (1964)

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Congressman Dante Fascell onReason for Tonkin Resolution

“My own impression of what happened at that time was that most everybody said, well, the President wants this power and he needs to have it. It had relatively little to do with the so-called [Gulf of Tonkin] incident.”

- Quoted in Ely, War and Responsibility 20 (1993)

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Brinks Hotel (BOQ) BombingChristmas Eve 1964

Two Viet Cong terrorists, dressed as an ARVN Major and his driver, parked a car with explosives in trunk in parking lot under Saigon building housing American officers.

Results:

2 Americans killed58 Americans injured

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Brinks Hotel (BOQ) BombingChristmas Eve 1964

Two Viet Cong terrorists, dressed as an ARVN Major and his driver, parked a car with explosives in trunk in parking lot under Saigon building housing American officers.

Results:

2 Americans killed58 Americans injured

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America Goes to War

• We will discuss the Tonkin Gulf Resolution more in a future class on constitutional separation of war powers.

• As we will discuss next week, for several years both Congress and the American people strongly supported LBJ’s decision to assist South Vietnam with military force.

• By 1966, roughly 200,000 U.S. troops were in Vietnam, and both Congress and the public were ready to support sending more.

�

(Paid Advertisement)

Come back to future classes to try to figure out

What went wrong?

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Something to Think About(for Next Class)

Why did America send combat units to war in Vietnam?

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Things to think about:

• Cold War Containment strategy• Ike’s “massive retaliation” strategy vs. “people’s war” as the

USSR developed its own nuclear force• Mao, Ho, Castro, Ché, and others challenged Khrushchev’s

caution in using “armed struggle” to expand the Socialist World

• Sino-Soviet struggle and “people’s war”• Chinese support for guerrillas in Asia and Africa in 1964• Vietnam as a “test case”• Vulnerability of Thailand, Indonesia, etc.• Effect of U.S. withdrawal on Cold War . . . ?

�

ANY QUESTIONS?

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