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International Law Aspects of Repatriation of Prisoners of War during Hostilities

Published online by Cambridge University Press:  28 March 2017

Richard A. Falk
Richard A. Falk*
Affiliation:
Of the Board of Editors
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Extract

On September 2, 1972, the North Vietnamese Foreign Ministry issueda statement announcing the release of three American pilots who were being held in detention since their capture by North Vietnam. The statement gave no particular reason for the release except to affirm North Vietnam's “lenient policy” and to indicate that the release was being made “on the occasion” of an annual independence day holiday called National Day. It was subsequently learned that the release was part of a wider amnesty, which included Vietnamese citizens who had been sent to jail for ordinary criminal activity.

Type
Research Article
Information
American Journal of International Law , Volume 67 , Issue 3 , July 1973 , pp. 465 - 478
Copyright
Copyright © American Society of International Law 1973

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References

1 A second anti-war organization in the United States—People’s Coalition for Peace and Justice—was also designated by the North Vietnamese to receive the three pilots, but the planning and execution of the undertaking was carried out virtually exclusively under the auspices of the Committee of Liaison. The escort group consisted of the two co-chairmen of the Committee of Liaison, Cora Weiss and David Dellinger and of the Rev. William Sloan Coffin, Jr., the chaplain of Yale University, and the author of this article. Peter Arnett of Associated Press also traveled as a member of the escort group, but made the trip solely for journalistic purposes.

2 See New York Times, Oct. 11, 1972, at 9.

3 For an intelligent appreciation of this issue see Note, The Geneva Convention and the Treatment of Prisoners of War in Vietnam,” 80 Harvard L. Rev. 851 (1967), reprinted in 2 Falk, ed., The Vietnam War and International Law, 397–415, at 405–15 (1969).

4 There are a number of distinct treatment issues including frequency and transmittal of mail and packages, release of sick and wounded prisoners for treatment and confinement in a neutral country, failure of North Vietnam to provide all information at its disposal about men held captive, and allegations of various sorts of abuse. See. Hanoi Refuses to Comply with the Terms of the Geneva Convention of 1949, Dept. of State, Public Information Series, Oct. 5, 1972. In addition to denying any wrongdoing, the North Vietnamese charge the U.S. Government with spreading false propaganda about prison conditions and with seeking to disrupt prison camp discipline by abusing mail privileges through the infiltration of forbidden items, especially to facilitate covert communication between prisoners and the Department of Defense. Also, the Son Tay raid of Nov. 21, 1970 manifested a willingness by American military forces to disrupt normal security arrangements for POWs in North Vietnam. Although the Son Tay camp was abandoned, Administration officials threatened to repeat such rescue efforts. In view of this threat directed at North Vietnamese prison security it is not surprising that POWs were thereafter kept under greater confinement. This tightening of prison discipline was confirmed by conversations with several present prisoners.

5 Throughout the war there have been numerous reports of abuse of North Vietnamese and National Liberation Front prisoners by the United States and by the South Vietnamese Government, despite their acceptance of the Geneva system. Perhaps the most serious kind of abuse was the widespread practice in certain theaters of ground combat of inflating “body count” totals by killing prisoners. The most well-known disclosures surrounded the court martial proceedings of Lt. Duffy, James. Some material on this case, including Lt. Duffy’s own statement, is found in Falk, Kolko, and Lifton, eds., Crimes of War 239–54 (1971)Google Scholar. There have also been numerous reports of battlefield reliance on “water torture” to secure information from captured enemy personnel or suspects. In addition, the reliance by Saigon authorities on torture in their prison system seems documented beyond reasonable doubt. One famous incident involved “the tiger cages” at Con Son prison which were unintentionally exposed to United States congressional visitors in July 1970. See “Statement on Con Son Prison” of Cong. Augustus F. Hawkins reprinted in same volume, at 258–60; see also Drinan, at 255–57 on American involvement.

6 See supra note 2.

7 See, e.g., Hearings on American Prisoners of War in Southeast Asia, 1971, Before the Subcommittee on National Security Policy and Scientific Developments of House Committee on Foreign Affairs, March 23–25, 30–31; April 1, 6, 20, 1971 (Cf. statements of Barnet, Meacham, and Weiss with those of Overly and Stockstill, at 2–24, 215–240, 359–406).

8 See N.Y. Times, Sept. 30, 1972, at 11 for indication of this shift in official policy as a consequence of a White House decision.

9 Hearings on American Prisoners of War in Southeast Asia, 1972, same subcommittee at note 7, supra. Part 3, Feb. 3, March 16, 1972 (Mr. Nutter’s statement begins at 25, the quoted passage appears at 31).

10 See article by Hollis, Everett R., “U.S. Planned More Gradual Homecoming for P.O.W.’s,” N.Y. Times, Sept. 30, 1972, at 10.Google Scholar

11 On this see Smith, P.O.W.: Two Years with the Vietcong (1971)Google Scholar, esp. epilogue by Donald Duncan on George Smith’s treatment by U.S. medical authorities after his release from National Liberation Front captivity, at 285–94.

12 6 UST 3316; TIAS 3364; 75 UNTS 135; 47 AJIL Supp. 119 (1953). Emphasis added.

13 E.g., the initiatives associated with Ross Perot, the Texas millionaire, or the activities of the National League of Families of American Prisoners and Missing in Southeast Asia.

14 As of November 1972 the Committee of Liaison has delivered 14,000 letters from and to prisoners detained in Vietnam and has also provided informational services for relatives of detained men.

15 Hearings on the Geneva Conventions for the Protection of War Victims, Before the Senate Foreign Relations Committee, June 3, 1955, at 62.

16 Id. North Vietnam has made a reservation to its adherence exempting itself from Article 10.

17 See also Hearings, supra note 15 at 62, for a covering letter from John Foster Dulles, as Secretary of State, to Senator Walter F. George, Chairman of the Committee:

It is particularly recommended that this Government should not accept these reservations. The United States, should, however, express its intention to enter into treaty relations with the reserving states so that they will be bound toward the United States to carry out all the provisions of the conventions on which no reservations were specifically made. It should be clear that we hope that the reserving states will at some time elect to withdraw their reservations and if in the event of conflict reserving states seek to use their reservation in an unwarranted fashion so as to defeat the broad humanitarian purposes of the conventions, the United States would, of course, be in a position to consider that it was not required further to apply the conventions vis-à-vis such defaulting states.

By acting as it has in relation to this September 1972 repatriation North Vietnam has, it would seem, made a proper use of Article 10 so as to promote the underlying objectives of the Prisoner of War Convention.

18 These three men were released without conditions and without any explanation of the basis on which they were chosen. Their behavior since the moment of release exhibits a sense of independence on the part of the three men.

19 For a sensitive treatment of the dilemma confronting a prisoner of war see Michael Waltzer’s essay Prisoners of War: Does the Fight Continue After the Battle? in Walzer, Obligations: Essays on Disobedience, War, and Citizenship 146–166 (1970). The problems posed for a conscripted citizen-soldier of a democratic society who opposes a war policy before his capture is particularly acute. Government writing does not exhibit an awareness of these issues. See POW—The Fight Continues After the Battle,” Report of the Secretary of Defense’s Advisory Committee on Prisoners of War, Aug. 1955, which heavily reflects an effort to establish POW guidelines that would be resistant to brainwashing tactics used so successfully by North Korea in the Korean War. See also Prugh, , The Code of Conduct for the Armed Forces, 56 Collmbia L. Rev. 678 (1956)CrossRefGoogle Scholar; Note, Misconduct in the Prison Camp: A Survey of the Law and an Analysis of the Korean Cases, ibid., 709.