Written By: Errin Elliott
Edited By: Anisha Ratnam
Introduction
Following the defeat of French colonial forces by the Viet Minh in 1954, Vietnam was divided at the 17th parallel into a communist North and a nominally democratic South. However, this division was more than a mere line on a map; it represented the paranoia-filled ideological battle between East and West, exacerbated by the regional dynamics in Southeast Asia. This international backdrop not only influenced the conduct of the conflict but also shaped legal debates concerning military intervention. Questions of sovereignty, self-determination, and the legality of foreign intervention were raised, highlighting the flaws of international humanitarian laws (IHL). As the conflict unfurled, so did controversy, shaping modern perceptions of international law's role in war.
The Role of International Law in Conflicts
The Vietnam War underscored the intricate and often rudimentary role of international law in armed conflict. Such law is essential in conflict resolution, providing frameworks which govern state behaviour, limit the barbarity of war, promote non-violent settlement of disputes, and offer mechanisms for resolving contention. However, practical enforcement and associated geopolitical dynamics can substantially compromise its efficacy.
In Southeast Asia in the mid-20th century, the dominating legal framework for managing conflict was the United Nations (UN) Charter 1945 [1]; which delineated principles for preserving international harmony and ensuring adherence. It should be noted that Vietnam did not join the UN until 1975 proving the UN's significance within the Vietnam War lies in its role as an intermediary, seeking to facilitate legal communication between nationalists and communists. However, its effectiveness was limited due to the geopolitical tensions influencing member states' positions.
Legal conventions are another way of regulating conflict. A prime example is the Geneva Conventions, arguably the foundation of modern IHL [2]. Established in 1949, they created the standards for treating soldiers, civilians, and prisoners of war (POWs) during combat. North Vietnam was signatory to this Convention from 1957 and, thus, bound by its terms. Alas, guerrilla warfare posed momentous challenges to their application, once again demonstrating how modern IHL fails at adequately managing conflict. Legislation is most crucial in comprehensively understanding the beginnings of the Vietnam War is the Geneva Accords of 1954 [3].
The Promises and Failures of the Geneva Accords
The Geneva Accords refer to the agreements and resulting documents of the Geneva Conference aimed at resolving the First Indochina War. They resulted in the temporary division of Vietnam whilst calling for a ceasefire between French forces and the Viet Minh, the withdrawal of foreign troops, and the repatriation of prisoners. The accords further planned for the national elections in 1956 to reunify Vietnam; at last, peace had been established in Southeast Asia after 8 years of turmoil. However, what happens when international law fails to uphold its promises?
The Accords were deeply flawed; they failed to establish a robust, enforceable framework for political reconciliation and unification between North and South Vietnam. They provided no precise mechanisms or international oversight to ensure the elections they called for occurred. The lack of tangible planning created an environment of political precariousness, ultimately lead to the refusal of South Vietnam to participate in the elections. Moreover, the legal decision to divide Vietnam only solidified the ideological split, leaving a power vacuum where both sides claimed legitimacy to govern the country. Representatives, again, failed to consider the strategic interests and interventions of external powers, particularly the US and the USSR. The US, fearing the spread of communism, heavily supported South Vietnam; meanwhile, North Vietnam received backing from the USSR and China, turning Vietnam into a proxy battleground for the Cold War superpowers.
All of these problems amalgamated and escalated into what became the Vietnam War. The conflict drew in global powers resulting in immense devastation, illustrating the dire consequences of unresolved political and ideological disputes. International law had aimed to bring peace but had inadvertently paved the way for war.
Humanitarian Law and War Crimes
16th March 1968 - hundreds of unarmed Vietnamese civilians, including women, children, and the elderly, are brutally slaughtered by American soldiers in My Lai. The military rushed to cover up the incident, and it was only brought to the public due to the persistent efforts of investigative journalists, sparking an outrage. My Lai breached the Geneva Conventions, namely Convention IV. Article 48 highlights the inviolability of the rights owed to civilians in war-torn countries; when the rights of civilians are desecrated in such a barbaric manner, it is the role of the law to provide justice to victims [4]. Article 149 allows for enquiries into grave breaches (as defined by Article 147); subsequently, criminals shall be punished [5]. This is, regrettably, not the case with My Lai. 403 witnesses came forward, providing over 26,000 pages of testimony against the soldiers. An investigation by the Criminal Investigation Division held that there was only evidence to charge 30 soldiers, but since 17 had left the Army, their charges for murder, rape, sodomy, and mutilation were simply dropped. In the end, charges were only brought against 13 men out of the 61 involved – only one was convicted. If this was not enough of iniquity, the convicted Lieutenant (William Calley) served a mere 3 days of his life sentence before President Nixon ordered he was released, remarking to Kissinger that "most people don't [care] whether he killed them or not".
However, this was far from the US's only grievous deviation from IHL, particularly regarding the Principles of Proportionality and Distinction. Agent Orange was a chemical defoliant sprayed out of C-123 aircraft over Vietnam. In excess of 50 side effects have been identified, including congenital disorders and cancers – not only did 3 million Vietnamese civilians suffer such disastrous injuries, but up to 300,000 US veterans have died due to exposure, as well as nearly 20 birth defects being recognised in the children of affected veterans. To put things into perspective, Agent Orange killed 5 times the number of US soldiers than the North Vietnamese did in combat. The Principle of Distinction is core to IHL [6], requiring parties to distinguish between combatants and non-combatants, as well as military and civilian objectives. 11.22 million gallons of Agent Orange were sprayed over the jungle to expose VC cover. However, in the process, the military failed to differentiate between military and civilian territories since they were often intertwined. Such indiscriminate behaviour led to the destruction of crucial resources for civilians and extensive environmental damage.
Furthermore, the US failed to account for the Principle of Proportionality, which necessitates that the anticipated military advantage from an attack must be balanced against the potential harm to civilians [7]. It is challenging to imagine a military advantage which could justify the aforementioned suffering – the military advantage purportedly gained from the deprivation of VC concealment certainly does not cut it. Further violations can be seen in Operation Barrel Roll, where every 8 minutes, 24 hours a day, for 9 years, bombs were dropped on Laos (a neutral country) to interdict communist supply lines, eventually amounting to 4 billion bombs and 30,000 civilians dead. The actions of the US military in Vietnam were a disastrous failure in the eyes of IHL.
Reconstruction, Reconciliation, and Legal Frameworks
In the wreckage of the war, both countries faced the arduous task of post-war reconstruction, addressing the various legal and human rights challenges which had emerged. In the US, the War Powers Act was brought in in 1973 due to debates over the balance of power between the President and Congress in the war [8]. The Act sought to restrict Presidential power by requiring congressional approval for military engagements lasting over 60 days, preventing unconstrained military interventions like in Vietnam. The War also developed veterans' rights; reforms within the Department of Veteran Affairs Advocacy meant there was more humane treatment of returning veterans, and efforts began to improve healthcare and benefits for the psychological and physical traumas suffered. For instance, the Agent Orange Act 1991 recognised the adverse effects of chemical exposure and entitled veterans to medical care and compensation [9]. Concurrently, the US commenced diplomatic efforts to redress relations with Vietnam, culminating in the normalisation of relations in 1995 with bilateral cooperation and trade, nurturing economic growth and cultural exchange. Both nations led joint efforts to locate and repatriate the remains of American POWs and MIA soldiers.
In Vietnam, post-war efforts focused mainly on national reconstruction. Legal reforms attempted to modernise the economy and facilitate integration with the global market, moving away from a war-torn economy to embrace modernisation and industrialisation. The 1986 shift towards a "Đổi Mới" policy stimulated economic reform, opening the country to foreign trade and investment, bringing recovery and growth. The countries also partook in cultural exchanges to promote mutual understanding; establishing the Fulbright Program in Vietnam allowed for academic exchanges that endorsed greater compassion between American and Vietnamese citizens. The legal reforms and reconciliation took a multifaceted approach, addressing political, social, and economic dimensions through legislative change and diplomatic overtures.
Post-Vietnam Legacies and Legal Precedents
Vietnam called attention to the necessity for more precise regulations concerning the conduct of war; the protests, among other things, increased pressure on countries to adhere to existing principles and introduce further frameworks to prevent abuses of power. One achievement was the improvement of the laws surrounding refugees and displaced persons. The large number of Vietnamese refugees necessitated enhanced international cooperation and legislation, contributing to the expansion of the applicability of the 1967 Protocol to the 1951 Refugee Convention [10]. Protests also called for stricter regulations concerning chemical warfare, eventually playing a part in the development and ratification of treaties like the Chemical Weapons Convention, which seeks to eliminate the use of chemical weapons globally. Nonetheless, the application of such Conventions is limited, as seen, for example, by the present-day use of white phosphorus in Ukraine.
Perspectives on sovereignty and military intervention between nations emerged as a hot topic of debate internationally, mainly sparked by the perception that US interference encroached on Vietnam's sovereignty rights. Many countries became more careful when justifying their involvement in other nations' military affairs. Evolving interpretations of Article 2(4) of the UN Charter forbid Members from threatening with force and committing acts of aggression, recognising countries' integrity and political independence, and organisations, i.e., the ICC, have been strengthened to hold accountable those who commit war crimes. This contributes to legal enforcement by ensuring that individuals and nations are held responsible for violations.
International Law and Future Conflicts
Several ongoing challenges hinder IHL's effectiveness in modern warfare, such as the evolving nature of warfare itself. Contemporary conflicts increasingly involve non-state actors, i.e., insurgent groups, which do not adhere to the conventions of IHL. The decentralised and often transnational nature of such groups complicates the efficacy of IHL, as they operate across borders and outside traditional state governance frameworks. Such situations tend to blur the lines between civilians and combatants, making applying the Principle of Distinction consistently complex. Technological advancements, particularly drones and cyber warfare, present further challenges. Grey areas are created within the law where developments outpace existing legal frameworks. Drones, for example, can conduct attacks without risking lives on the aggressor's side, potentially leading to looser adherence to the Principles of Proportionality and Distinction.
Similarly, cyber warfare raises questions about sovereignty and civilian targeting, as infrastructure essential for civilian life could be deemed legitimate military targets under certain conditions. Additionally, there are still issues with accountability and compliance – despite the existence of IHL frameworks like the Geneva Conventions, enforcement mechanisms are lax. The ICC faces limitations such as political resistance from powerful states and challenges in securing custody of accused individuals, most recently Netanyahu. Moreover, political biases and strategic interests can influence the willingness of international actors to hold violators accountable.
Conclusion
Vietnam serves as a central case study in examining the intersections of international and domestic law amidst conflict. The complexities of this war highlighted both limitations and potential within international law to regulate state behaviour and mitigate conflict. We have seen a need for more robust legal frameworks and enforcement mechanisms to handle the complex nature of contemporary warfare. As Asia advances as a significant geopolitical arena, the law must adapt and address challenges, e.g., human rights violations. The future of conflict in Asia likely hinges on the ability of legal frameworks to adapt to tackle rapid technological advancements and shifting political dynamics sufficiently. There exists a crucial opportunity for nations to collaborate on strengthening legal frameworks, ensuring that the failures in Vietnam continue to inform and refine the pursuit of peace in the region.
REFERENCES
[1] United Nations Charter (24 October 1945) 1 UNTS XVI
[2] Geneva Conventions of 12 August 1949, 75 UNTS 31
[3] Geneva Accords (1954), 536 UNTS 293
[4] Geneva Convention IV, Article 48, 12 August 1949, 75 UNTS 287
[5] Geneva Convention IV, Article 149, 12 August 1949, 75 UNTS 287
[6] Andrew Clapham, Brierly’s Law of Nations: An Introduction to the International Law of Peace (Oxford University Press 2012) 224
[7] International Committee of the Red Cross (ICRC), Customary International Humanitarian Law, Volume 1: Rules (Cambridge University Press 2005) Rule 14
[8] War Powers Resolution 1973, 50 SC § 1541 et seq. (United States)
[9] Agent Orange Act of 1991, Public Law 102-4, 105 Stat. 11 (1991)
[10] Protocol Relating to the Status of Refugees 1967, UNTS 606, 19 December 1976
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