Richard A. Falk
During a discussion period after a talk I gave at a mass meeting in support of the October Moratorium against the Vietnam War (1969), a student from the audience asked: "If what you have said is accurate, then do you favor punishing our political and military leaders as war criminals? If not, why not?"
Even at the time I appreciated the difficulty of finding an adequate answer for the question, and proceeded to respond as follows: "Although the United States Government is waging an illegal war of aggression by criminal means in Vietnam, it would not be practical or even desirable to prosecute our leaders as war criminals. It would not be practical because there does not seem to be any way to constitute a tribunal that would be capable of apprehending the accused defendants and subjecting them to prosecution. It would not be desirable because such a drastic effort to repudiate the political leadership of this country would lead to a divisive kind of domestic turmoil at a time when we needed desperately to move beyond the awful years of involvement in Vietnam by undertaking more constructive tasks at home and abroad."
Such a response didn't, even at the time, satisfy me. It felt inconsistent with the search for serious restraints upon the international behavior of governmental officials and it went against the most basic teaching of the Nuremberg Judgment, namely, that by punishing the leaders of Germany for war crimes after World War II a precedent was laid down that would be relied upon in the future. To conclude, as I had, that the United States was waging a war of aggression against North Vietnam and was guilty of the systematic commission of war crimes on a massive scale in South Vietnam, and yet to shrink back from the conclusion that where there are crimes there are also criminals, seemed to involve a very dubious kind of intellectual casuistry. But worse than this, such a preference for exemption with regard to American officials seemed to confirm the most cynical criticisms of the Nuremberg concept as a