International Humanitarian Law

International Humanitarian Law

Page number 226

Question 1

How does the U.S. approach to combatant and POW status in the Vietnam War compare with the approaches in Kassem, the Nuremberg cases and Krofan? Are there different considerations that merit a different approach?

Ans.

There have been different approaches that were taken by towards the POW status in Vietnam War, Kassem and Krofan cases. To understand and compare, it is necessary to first have a look at each of them.

In the Vietnam War, the Geneva Convention was applied but with complexity. It resulted in the creation of confusion regarding the legal aspect and nature of the war. The convention declares two or more countries to be engaged in a war in which each of the belligerents fields a regular army that is fighting on a well-defined front. What happened actually was that none of these conditions that had been set out by the Geneva Convention existed in case of the Vietnam War. The US, like some eighty-seven other countries did recognize the sovereignty of South Vietnam, but did not establish filly diplomatic links with North Vietnam, just like some twenty-seven other countries did.

Recognizing one part of a country and not the other creates a number of issues and disputes. Same was the case with Vietnam. The US, although did not establish diplomatic links with the North Vietnam did recognize its agreement to the Geneva Convention of 1949. Furthermore, the US recognized the North Vietnam as a separate country in the light of Article 12 of the Geneva Prisoner Of War (POW) Conventions. Throughout the time of war, the government of Vietnam acted in a very reluctant manner regarding any sort of involvement in the South Vietnam. It maintained its statement that North and South Vietnam are parts of a single country. They further declared the Saigon government as a puppet regime that was severely opposed by indigenous patriots who aimed at restoring the control of the country to its people. On the other hand, South Vietnam stated that it is a state that is sovereign and separate from North Vietnam.

Different types of forces were engaged in the Vietnam War including regular army of the United States, South and North Vietnam, Viet Cong. The battlefield was disturbed in almost all the areas of the Vietnam. Due to high level engagement of US forces in the war, the issue of disposing the captives that were captured from the battlefield in a proper way got intensified. As a result, in the year 1965, the US decided to transfer all the POW to Vietnamese forces as such an act is permissible under the Geneva Convention of war with the fulfillment of certain conditions. The transferring of POW was simple from the legal perspective; however doing so in reality associated a number of difficulties and issues. The US retained the responsibility of providing medical treatment to the prisoners even after their transfer and expected that same treatment would be provided by the other side ...