Inadmissibility of the Acquisition of Territory by Force

The UN Resolution on Israeli Settlements
Part I: Inadmissibility of the Acquisition of Territory by Force

by

Howard Adelman

This series of blogs on the UN Security Council resolution condemning Israel for its continuing expansion of settlements in the West Bank, a resolution passed on Friday, offers an opportunity to investigate the Israeli-Palestinian conflict once again, but in the context of what has taken place over the last fifty years, within the current context in which we are witnessing the largest tectonic shift in the way politics has been conducted over the last century, and in the context of an even larger shift in the modes of communication we use to understand the world and converse about it in the first place. But I begin, not with these large themes, but with one specific motion passed 14-0 with one abstention, that of the United States, in response to the United Nations Security Council condemning Israel for its policy of expanding settlements in the West Bank. My effort is in the tradition of the oldest and almost obsolete mode of communication, a detailed analysis and a hermeneutic for comprehending what is happening and what is at stake within the emotional context of a lament.

For those who like their political analysis to be terse and to the point, that is easy enough. For the last forty years, I have been active, not on the front rows, but as a bit player on the world scene as the drama of the Israeli-Palestinian conflict unfolded even further than it had previously. I was a very active member of the Canadian Professors for Peace in the Middle East (CPPME) and, for one year following the death of Harry Crowe, served as its president. I was part of one of sixteen known Track II efforts of international diplomacy, that is, the use of academics to advance a peace process in a context where either side could participate, but never take responsibility or be accused of taking positions. The politics of deniability was at the heart of Track II diplomacy.

I was also a scholar who had studied refugees in general and the Palestinian refugee situation in detail, not only for scholarly purposes, but as an advisor to a Canadian diplomatic team as Canada gavelled the most important of the five sets of multilateral talks dealing specifically with the Palestinian refugee question. For that set of talks was also about deception as many of the matters that could not be sorted out in the bilateral talks, matters that had nothing to do with the refugee issue per se, were resolved in the refugee talks through the expertise and good offices of Canadian diplomats – issues such as: who spoke for the parties, who could represent them, how they were to be recognized.

During that time, I could be clearly labeled politically. I was an extreme dove, supporting the two-state solution and believing that Israel would have to give back most of the territory captured in the 1967 war, including East Jerusalem. while never expecting Israel to agree to the last part of that position. I was especially surprised when two different Israeli Prime Ministers, one from the right of centre and one from the left of centre, both Ehud Olmert and Ehud Barak, made unprecedented offers of peace that I had never expected, offers that included the provision of turning over East Jerusalem to the Palestinian state. Ehud Olmert in 2007 would go on to insist that unless Israel strongly pursued a two-state solution, the nation risked being compared to South Africa as an apartheid state by the world community. Not risked becoming an apartheid state, as many mistakenly interpreted his statement, but being identified as one.

During the last eight years, I have watched President Barack Obama spend a considerable amount of international and domestic political capital in what his administration perceived as a last chance at forging a two-state solution, only to conclude at the end of the process that the prospect was very dim. Further, publicly he placed almost the total blame for that failure on Prime Minister Benjamin Netanyahu of Israel. Finally, he indicated that in the light of those events, the U.S. would have to re-assess “aspects” of its relationship with Israel. One of those aspects became very clear as the U.S. did not veto but abstained on Resolution 2334 passed 14-0 in the Security Council on Friday just as the United States was on the verge of Donald Trump taking power, the Donald who clearly has a very opposed view on the Israeli-Palestinian conflict and a radically different approach than the one that had been used over the last forty years of my involvement in dealing with international conflicts.

The passing of that resolution on Friday was not an expression even of a last hurrah, but a de facto confession of moral impotence and hypocrisy that has been a deep part of the failure in dealing with the Israeli-Palestinian conflict. It is important to understand why this is so, why the movers of the motion felt so impassioned about it, why the passing of the resolution received such sustained applause and why the Obama administration and why Benjamin Netanyahu had such opposite responses when the motion was passed. The motion was really a pronouncement that the two-state solution was dead. The motion was a claim for rhetorical victory by the losing side, much as the United States in 1972 had claimed victory in extracting itself from the Vietnam War only to watch North Vietnam take over the south three years later. While many applauded and others raged at the passage of the UNSC resolution, I cried. Literally!

This series of blogs is intended to explain my position in great detail. I begin with the dissection of the resolution itself – in this blog dealing with the principle of the inadmissibility of the acquisition of territory by force. In subsequent blogs, I will deal with other issues in international politics, law and ethics – the principles of protection of civilians in times of war, the role of International Courts of Justice in dealing with highly complex international political issues, the demographic character of East Jerusalem and the West Bank, the danger of continuing Israeli settlements imperiling the two-state solution based on the 1967 lines (my italics), the role of past UN resolutions demanding a freeze on settlement activity, including freezing any opportunities for natural growth, the dismantlement of illegal outposts of the settler movement, and the compatibility of all these moves with the vision of the region in which two democratic states, Israel and Palestine, live side by side in peace within secure and recognized borders.

All of these elements of the resolution have to be analyzed within an historical pattern of perception in which all trends on the ground are simply perceived in negative terms because they are looked at strictly from the position of a defense of preserving one version of the two-state solution and the increasingly forlorn hope of the resurrection of a position I have defended and worked on for forty years, but for which there is no longer any realistic prospect. Further, all this is happening in a context in which the conduct of international politics and the even larger context of international political communication are both undergoing a seismic shift.

I have included the full UN Security Council resolution at the end of this blog, though it is preferable if it is read, and repeatedly read, before each step in the analysis. I also must explain that my blogs may be more irregular as much of my time increasingly goes to my new position as a nurse’s aid. Eventually, I will cover all the key problems with the resolution, the reasons for the American abstention and neither supporting nor vetoing the resolution, Donald Trump’s role in its passage, the response of the Israeli government as well as the leading opposition parties in Israel, the analysis of those who pushed the resolution and their rationale, the role of Egypt, the larger context of international diplomacy and communications, and the long term consequences of the resolution on all the relevant parties.

The Inadmissibility of the Acquisition of Territory by Force

On 23 December 2016, the UN Security Council passed UN Resolution 2334 included at the end of this blog. I have added the bolding. The relevant clause discussed in this blog is the first principle cited in the preamble and it reads as follows:

Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force.

Is it inadmissible to acquire territories by force?

The principle of the inadmissibility of the acquisition of territories by force is embodied in UNSC Resolution 242 passed on 22 November 1967 in the aftermath of the Six Day War. Chapter VI of the UN Charter calls on member states to settle their disputes by peaceful methods (inquiries, negotiations, mediation, conciliation, arbitration, judicial settlement, etc.) rather than war. In cases of failure to reach agreement, the issue must be referred to the Security Council. Chapter VI allows any state or consortium of states to bring a resolution before the UN Security Council. Note that Chapter VI only allows the UN to pass resolutions that are recommendations; resolutions that are passed, do not bind the member states engaged in a dispute. This is unlike resolutions passed under Chapter VII which are deemed obligatory. Resolutions under Chapter VI are commendatory, particularly since the UN has no enforcement mechanism.

If territories are acquired in a defensive war, not through intentional conquest, why is it inadmissible to hold onto such territories, particularly if the territory is largely being held both for defensive reasons and as bargaining chips in a future peace negotiation? The inadmissibility is directly tied to efforts to settle populations on that territory as distinct from acquiring those territories? What is the definition of acquisition of a territory by a state?

Further, since the Six Day War, Israel concluded two peace agreements, one with Egypt in which Israel gave back all territory captured as part of a full peace agreement. The other was with Jordan, a country which had walked away from any responsibility for the territory it had captured and annexed in the 1948 war. Article 2, paragraph 5 of the UN Charter requires states to refrain from using force “against the territorial integrity or political independence of any state.” Such a clause is only possibly applicable to the Golan Heights which Israel captured from Syria in 1967 and subsequently annexed. However, the bone of contention driving Res. 2334 is the West Bank, including East Jerusalem, captured in the 1967 war and claimed, not by an existing state, but by an aspiring Palestinian state.

It is notable that the supposed universal principle of the inadmissibility of the acquisition of territory by force only refers to Resolution 242 applicable to only one area of the many occupied by one state and taken from another, and then only after Israel acquired further territory following the Six Day War in 1967; it is not applicable to the additional territory Israel captured and annexed in the 1948 war.

Look at many of the other areas of the world to which the principle has not been applied. In 1975, Morocco occupied just over 100,000 square miles of desert flatlands in the Western Sahara (formerly the Spanish Sahara) that was also claimed by Mauritania when Spain gave up administrative control of the territory. The Polisario Front also fought to make the territory an independent self-governing state (the Sahrawi Arab Democratic Republic), even though the population totalled only about half a million. In the war that ensued, the Polisario Front was left with at most a third of the territory, while Morocco controlled the rest, including the whole Atlantic Ocean coast line, all in defiance of a 1975 decision by the International Court of Justice that upheld the right to self-determination of the people of the Western Sahara.

In contrast, the U.S. politically recognized Morocco’s right to the territory even when, subsequently, Morocco and the Polisario National Front agreed that a referendum would be held in which the people of the Western Sahara could determine their fate. That referendum has never been held, though periodically there have been diplomatic efforts to resolve the impasse. Under Trump, it is highly unlikely that the U.S. will bring pressure on Morocco and King Mohammed VI to sort out the problem of voter eligibility and the mode of conducting the referendum, especially given the access Morocco provides U.S. military forces to Atlantic ports and aircraft refueling. Thus, though the U.S. launched a war against Iraq in 1991 that could theoretically have been on the principle of the inadmissibility of conquering the territory of another state when Iraq invaded Kuwait, the U.S. used the Moroccan conquered territory as part of its war effort. In current U.S. policy stretching back to those years, including both Bush and Clinton administrations, the U.S. does “not automatically reject a territorial transfer brought [about] by force.”

The question arises: why is the U.S. willing to exempt Morocco from acquiring territory by force, especially given three factors – Morocco, unlike Israel, is an autocratic monarchy not a democracy; Morocco engages in extensive human rights abuses; finally, like the Israeli-Palestinian conflict, the tension is a source of instability in both areas – the Maghreb and in the former territory of the Palestinian mandate. Yet the Obama administration never challenged Morocco. President Obama even lauded the monarchy for its efforts at “deepening democracy” and “promoting economic progress.” Trump’s foreign policy will undoubtedly stress even more favouritism towards allies rather than rights of self-determination and the inadmissibility of the conquest of territory by force.

However, the key question raised in Friday’s vote was the policy of the UN. The UNSC this year renewed its peacekeeping mission in the Western Sahara (MINURSO) that was also passed on a Friday (almost eight months earlier on 29 April). In spite of a much greater UN presence there as a peacemaker than in Israel-Palestine, and perhaps because of that and the risks a more activist diplomatic stance might make on the security of its peacekeepers, the UN has not placed any significant pressure on Morocco. It has not even passed any resolutions on Morocco to cease and desist from its policies of expulsion in the area. When Ban Ki-moon visited the territory this past year and even called it “occupied,” a diplomatic firestorm ensued.

The original Res. 379 of 2 November 1975 simply urged the contending parties to desist from unilateral actions and instructed the Secretary General to report back. The stronger 6 November 1975 Resolution 380 deplored a march held by Morocco in the territory, called on Morocco to withdraw its troops and asked the contending parties to cooperate with the UN. The very recent 29 April 2016 Morocco resolution continued the pattern of its predecessors, including Res. 2218 of the previous year, renewing the peacekeeping mandate for an additional year while endorsing the efforts of UN envoys to reconcile the position of the parties and congratulating both parties for their positive efforts to reach a compromise. Nothing was ever said about the inadmissibility of the acquisition of territory by force.

The full resolution 2218 on the Western Sahara conflict can be found at the end of this blog.

This was not the case when Indonesia invaded East Timor, also in 1975, and the UNSC passed resolution 384 on 22 December 1975. Though that very much stronger resolution required all states to respect the territorial integrity of East Timor and the inalienable right to self-determination, the resolution never invoked the principle of the inadmissibility of the acquisition of territory by force. What forced the Indonesian withdrawal was the weakened state of the Indonesian economy and the active intervention of the Australians, propelled in good part by their oil interests in the area.

Only in the case of Kuwait, an independent state and full member of the UN, did the UN Security Council pass a resolution (660), but it authorized member states to take military action to resist and overturn the conquest. The members passed that resolution, not under the principle of the inadmissibility for the acquisition of territory by force, but under a much harsher Chapter VII principle of maintaining peace and security in the region. The resolution endorsed military intervention.

When North Vietnam conquered South Vietnam in 1975, no resolution akin to the anti-Indonesian one was passed. In no other case that I can find has there been the invocation of the principle of the inadmissibility of the acquisition of territory by force of arms.

Though the UN and other states put pressure on China to accede to the independence of Mongolia in 1961, the Chinese military takeover of Tibet in 1950 and its repression of the Tibetan uprising in 1959 never involved any invocation of the principle of the inadmissibility of the conquest of territory by force. At best, the General Assembly of the UN periodically took up the question of Tibet, but even China’s strongest critics never invoked the principle of the inadmissibility of the conquest of territory by force. Perhaps some resolutions had been morally stronger – charging China with acts of genocide in the fifties and insisting that Tibet had previously been an independent state, but the principle of the inadmissibility of the conquest of territory was not invoked.

The principle is applied exclusively to Israel. Further, the resolution applies only to Israel following the 1967 war.

There are many other cases. Do we need to add the supine character of the UN when it came to the Russian takeover of Crimea, Moscow’s coercive interventions in eastern Ukraine, never mind Russia/s military invasion of Georgia in 2008 ostensibly on behalf of self-determination in South Ossetia and Abkhazia. A United Nations member was being dismembered by force, and the UN was impotent to act.

In the case of Ethiopia’s two-year war with Eritrea which began on 6 May of 1998, the two parties reached a peace agreement. That agreement provided for an arbitration commission to determine borders. That commission found in favour of Eritrea and against the claims of Ethiopia that most of the territory of the border region it occupied belonged to Ethiopia, specifically the hundreds of towns and villages along the border in which the Ethiopian army destroyed the buildings and infrastructure in the area occupied, particularly that of the border towns of Senafe and Tsorona- Zalembessa. The UNSC proved unable to enforce a ruling by an independent boundary commission awarding the bulk of disputed border territory to Eritrea.

Ethiopia ignored the findings and continued to occupy the border territory and integrate it into the territory of Ethiopia. This was another example of a seizure of territory by force never condemned by the UN Security Council as a breach of the principle of the inadmissibility of the acquisition of territory by force. Instead, based on a report of the UNSC Monitoring Group, the UN reprimanded Eritrea for violating the UN resolution by importing weapons and ammunition from eastern Sudan and claimed that it had evidence that Eritrea supported the Ogaden National Liberation Front, the Tigray People’s Democratic Movement and Ginbot Seven. Eritrea had also been condemned by a human rights commission for arbitrary arrests, torture, rape, enslavement, murder and reprisals against family members of dissidents inside the country. There is no equivalent report on human rights abuses in the West Bank and Gaza except by Israel.

When Turkish forces took over Northern Cyprus and continued to administer the territory as if it is an extension of Turkey rather than part of the territory of an independent state and member of the UN, it did so under the pretext that Turkey had no jurisdiction or control over the territory of the Turkish Republic of Northern Cyprus which Turkey, but no other country, recognized as an independent de facto state. Turkey claimed that Northern Cyprus was not a “subordinate local administration.” The European Court of Human Rights had already previously ruled that Turkey exercised effective control over northern Cyprus. Nevertheless, the UN Security Council had never ruled that Turkey’s effective control was an example of the inadmissibility of the acquisition of territory through force.

Comparative historical examinations of other situations as well as of the case of Israel before 1967 clearly points to the fact that the Security Council has been using the language of a general principle to apply to one and only one case, thereby undermining that principle as a norm of international conduct and reinforcing the position that the acquisition of territory through force is, in fact, the accepted practice and not its obverse.

Next Blog: The UNSC Res. 2334 Part II: Occupation and Acquisition:
Legal Obligations and Responsibilities Under the Fourth Geneva Convention

Appendix 1:

Security Council Resolution 2334
Reaffirming its relevant resolutions, including resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008),
Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force,
Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice,
Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,
Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines,
Recalling the obligation under the Quartet Roadmap, endorsed by its resolution 1515 (2003), for a freeze by Israel of all settlement activity, including “natural growth”, and the dismantlement of all settlement outposts erected since March 2001,
Recalling also the obligation under the Quartet roadmap for the Palestinian Authority Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities, including the confiscation of illegal weapons,
Condemning all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction,
Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders,
Stressing that the status quo is not sustainable and that significant steps, consistent with the transition contemplated by prior agreements, are urgently needed in order to (i) stabilize the situation and to reverse negative trends on the ground, which are steadily eroding the two-State solution and entrenching a one-State reality, and (ii) to create the conditions for successful final status negotiations and for advancing the two-State solution through those negotiations and on the ground,
1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution;
5. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967;
6. Calls for immediate steps to prevent all acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction, calls for accountability in this regard, and calls for compliance with obligations under international law for the strengthening of ongoing efforts to combat terrorism, including through existing security coordination, and to clearly condemn all acts of terrorism;
7. Calls upon both parties to act on the basis of international law, including international humanitarian law, and their previous agreements and obligations, to observe calm and restraint, and to refrain from provocative actions, incitement and inflammatory rhetoric, with the aim, inter alia, of de-escalating the situation on the ground, rebuilding trust and confidence, demonstrating through policies and actions a genuine commitment to the two-State solution, and creating the conditions necessary for promoting peace;
8. Calls upon all parties to continue, in the interest of the promotion of peace and security, to exert collective efforts to launch credible negotiations on all final status issues in the Middle East peace process and within the time frame specified by the Quartet in its statement of 21 September 2010;
9. Urges in this regard the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving, without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet Roadmap and an end to the Israeli occupation that began in 1967; and underscores in this regard the importance of the ongoing efforts to advance the Arab Peace Initiative, the initiative of France for the convening of an international peace conference, the recent efforts of the Quartet, as well as the efforts of Egypt and the Russian Federation;
10. Confirms its determination to support the parties throughout the negotiations and in the implementation of an agreement;
11. Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions;
12. Requests the Secretary-General to report to the Council every three months on the implementation of the provisions of the present resolution;
13. Decides to remain seized of the matter.

Appendix 2: The UN Security Council on the Western Sahara:

“The Security Council,
“Recalling and reaffirming all its previous resolutions on Western Sahara,
“Reaffirming its strong support for the efforts of the Secretary-General and his Personal Envoy to implement resolutions 1754 (2007), 1783 (2007), 1813 (2008), 1871 (2009), 1920 (2010), 1979 (2011), 2044 (2012), 2099 (2013), and 2152 (2014),
“Reaffirming its commitment to assist the parties to achieve a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations, and noting the role and responsibilities of the parties in this respect,
“Reiterating its call upon the parties and the neighbouring states to cooperate more fully with the United Nations and with each other and to strengthen their involvement to end the current impasse and to achieve progress towards a political solution,
“Recognizing that achieving a political solution to this long-standing dispute and enhanced cooperation between the Member States of the Maghreb Arab Union would contribute to stability and security in the Sahel region,
“Welcoming the efforts of the Secretary-General to keep all peacekeeping operations, including the United Nations Mission for the Referendum in Western Sahara (MINURSO), under close review and reiterating the need for the Council to pursue a rigorous, strategic approach to peacekeeping deployments, and effective management of resources,
“Expressing concern about the violations of existing agreements, and calling on the parties to respect their relevant obligations,
“Taking note of the Moroccan proposal presented on 11 April 2007 to the Secretary-General and welcoming serious and credible Moroccan efforts to move the process forward towards resolution; also taking note of the Polisario Front proposal presented 10 April 2007 to the Secretary-General,
“Encouraging in this context, the parties to demonstrate further political will towards a solution including by expanding upon their discussion of each other’s proposals,
“Taking note of the four rounds of negotiations held under the auspices of the Secretary-General and welcoming the commitment of the parties to continue the negotiations process,
“Encouraging the parties to continue cooperating with the Office of the High Commissioner for Refugees in implementing the January 2012 updated Plan of Action on Confidence Building Measures,
“Stressing the importance of improving the human rights situation in Western Sahara and the Tindouf camps, and encouraging the parties to work with the international community to develop and implement independent and credible measures to ensure full respect for human rights, bearing in mind their relevant obligations under international law,
“Encouraging the parties to continue in their respective efforts to enhance the promotion and protection of human rights in Western Sahara and the Tindouf refugee camps, including the freedoms of expression and association,
“Recognizing and welcoming, in this regard, the recent steps and initiatives taken by Morocco to strengthen the National Council on Human Rights Commissions operating in Dakhla and Laayoune, and Morocco’s ongoing interaction with Special Procedures of the United Nations Human Rights Council, including those planned for 2015, as well as the planned visit of the Office of the High Commissioner for Human Rights (OHCHR) in 2015,
“Also welcoming the implementation of the enhanced refugee protection programme developed by the Office of the United Nations High Commissioner for Refugees in coordination with the Polisario Front, which includes refugee and human rights training and awareness initiatives,
“Reiterating its request for consideration of a refugee registration in the Tindouf refugee camps and inviting efforts in this regard,
“Welcoming the commitment of the parties to continue the process of negotiations through the United Nations-sponsored talks,
“Recognizing that the consolidation of the status quo is not acceptable, and noting further that progress in the negotiations is essential in order to improve the quality of life of the people of Western Sahara in all its aspects,
“Affirming full support for the Secretary-General’s Personal Envoy for Western Sahara Ambassador Christopher Ross and his work in facilitating negotiations between the parties, and, welcoming to that effect his recent initiatives and ongoing consultations with the parties and neighbouring states,
“Affirming full support for the Special Representative of the Secretary-General for Western Sahara and Head of MINURSO Kim Bolduc,
“Having considered the report of the Secretary-General of 13 April 2015 (S/2015/246),
“1. Decides to extend the mandate of MINURSO until 30 April 2016;
“2. Reaffirms the need for full respect of the military agreements reached with MINURSO with regard to the ceasefire and calls on the parties to adhere fully to those agreements;
“3. Calls upon all parties to cooperate fully with the operations of MINURSO, including its free interaction with all interlocutors, and to take the necessary steps to ensure the security of as well as unhindered movement and immediate access for the United Nations and associated personnel in carrying out their mandate, in conformity with existing agreements;
“4. Welcomes the parties’ commitment to continue the process of preparation for a fifth round of negotiations, and recalls its endorsement of the recommendation in the report of 14 April 2008 (S/2008/251) that realism and a spirit of compromise by the parties are essential to achieve progress in negotiations;
“5. Calls upon the parties to continue to show political will and work in an atmosphere propitious for dialogue in order to enter into a more intensive and substantive phase of negotiations, thus ensuring implementation of resolutions 1754 (2007), 1783 (2007), 1813 (2008), 1871 (2009), 1920 (2010), 1979 (2011), 2044 (2012), 2099 (2013), and 2152 (2014), and the success of negotiations;
“6. Affirms its full support for the commitment of the Secretary-General and his Personal Envoy towards a solution to the question of Western Sahara in this context and calls for renewed meetings and strengthening of contacts;
“7. Calls upon the parties to continue negotiations under the auspices of the Secretary-General without preconditions and in good faith, taking into account the efforts made since 2006 and subsequent developments, with a view to achieving a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations, and noting the role and responsibilities of the parties in this respect;
“8. Invites Member States to lend appropriate assistance to these talks;
“9. Requests the Secretary-General to brief the Security Council on a regular basis, and at least twice a year, on the status and progress of these negotiations under his auspices, on the implementation of this resolution, challenges to MINURSO’s operations and steps taken to address them, expresses its intention to meet to receive and discuss his briefings and in this regard, and further requests the Secretary-General to provide a report on the situation in Western Sahara well before the end of the mandate period;
“10. Welcomes the commitment of the parties and the neighbouring states to hold periodic meetings with the Office of the United Nations High Commissioner for Refugees to review and, where possible, expand confidence-building measures;
“11. Urges Member States to provide voluntary contributions to fund confidence-building measures agreed upon between the parties, including those that allow for visits between separated family members, as well as food programmes to ensure that the humanitarian needs of refugees are adequately addressed;
“12. Requests the Secretary-General to continue to take the necessary measures to ensure full compliance in MINURSO with the United Nations zero-tolerance policy on sexual exploitation and abuse and to keep the Council informed, and urges troop-contributing countries to take appropriate preventive action including predeployment awareness training, and other action to ensure full accountability in cases of such conduct involving their personnel;
“13. Decides to remain seized of the matter.”

Vietnamerica: Part II Propaganda

Vietnamerica: Part II Propaganda – A Distinct Form of Documentary Film

by

Howard Adelman

In part I, I insisted that a good documentary should not be a propaganda film which brackets critical thought in favour of a single message pushing an ideological agenda on the public. When critical thinking is suspended, the documentary becomes a propaganda film. Today I will try to show how 10% of the Vietnamerica documentary that was ideological undermined the narrative of the suffering of the refugees who fled Vietnam.

Yesterday, I focused largely on the central core of the film and to some extend on one bookend, the success stories. Both happened to be military successes, one about the son of a refugee family who became the first Vietnamese-American general, and the other about the Vietnamese-American scientist who led the team that created the bunker buster bomb. This emphasis on militarism and a revisionist version of the Vietnam War opened the film. The film was transformed in good part from a view and record of the horrific experiences the Vietnamese had under the communists and in their efforts to escape, into an explicit propaganda film in defence of the theory that America betrayed its ally, South Vietnam. For it argues that the war had been effectively won when Kissinger was responsible for the stab-in-the-back, not only in abandoning Vietnam, but in refusing to re-equip the South Vietnamese army when China and the USSR were re-equipping the North Vietnamese. This thesis is dubious to say the least.

The film does not try to defend its extreme revisionist view, but simply to propagate the tale as a given. Quite aside from the questionable historical account, the effort to combine a historical propaganda film with a film of the experiences of the Vietnamese boat people allows the former to both undermine and detract from the latter.

There are the obvious readily challenged factual claims. A narrator says that half who fled Vietnam died in trying. If the numbers who fled were about two million, that would mean one million died in the effort to find freedom. But the film itself provides the generally accepted figure of 200,000 to 400,000 deaths. My studies indicate that the number was close to the higher estimate and North Vietnamese repression can be held responsible for at least half of those deaths. But not one million. Further, in the movie, there is no effort to resolve the contradiction in the figures cited. Similarly, assertions that 7 million died in the war are dubious. There is scant evidence to support such claims and virtually all authoritative sources cite a total of about 4 million dead and wounded on both sides, including 40,000 troops and civilians in The Convoy of Tears as civilians and military personnel fled the aggression of North Vietnamese armies as they moved against Saigon during March and April of 1975.

As far as atrocities and summary executions go, these were committed by both sides. The most famous was that of Nguyễn Ngọc Loan, Chief of the National Police, whose shooting of a handcuffed prisoner in the head with his 38 Smith & Wesson revolver became an iconic picture for the anti-war movement. The victim was Nguyễn Văn Lém, a member of the Việt Cộng captured in the Tet Offensive. Given the status of the photo, few knew that Lém was responsible for cutting the throat, not only of South Vietnamese Lieutenant Colonel Tuan, but his wife, six children and 80-year old mother. I do not know which side was guilty of the greater number of atrocities, but I suspect it was the Hanoi regime. Lém was captured beside a mass grave that held 34 civilian bodies.

It is easy to hold the Hanoi regime responsible for large numbers of deaths. After their victory over the French in the north and their breaking up the large estates and targeting large landowners, the Hanoi communist regime introduced land “reform.” that is, transferring all ownership of property to the state. Pacification followed. It is estimated that the Hanoi regime over four years killed almost 300,000 North Vietnamese citizens. In the period preceding the attack on Saigon, as suggested above, “Of the 200,000 refugees that fled the Highlands offensive by the North in March 1975, only 45,000 made it to Tuy-Hoa. Many of the 155,000 missing were killed by North Vietnamese troops; others were captured. Rebel highlanders also fired on the refugees, some were mistakenly bombed by government planes, and still others may have been run over by fleeing government vehicles. Some died by drowning and sheer exhaustion.” Of the death toll from one military advance over two months, Hanoi was probably responsible for almost half those deaths.

Thus, an estimate of those killed after the fall of Saigon of 100,000 does not seem so outlandish, especially if one includes in the total not only those executed, but those who were worked or starved to death in the so-called “re-education” camps. Some estimates go even higher. For a breakdown of civilians indiscriminately killed as a result of or consistent with orders from higher command, that is, democide, I use Bob Rummel’s publications in chapter 6 of Statistics of Democide focused on democide in Vietnam over 35 years.

The central issue of the propaganda element in the film is, however, not about numbers, but about the stab-in-the-back explanation of why Hanoi conquered South Vietnam. The propagandistic aspect of the film begins with two so-called authorities featured near the beginning of the film. One is Robert Turner, a Vietnam veteran and Associate Director of National Security Law at the University of Virginia, the university from which he earned his academic and professional degrees. Turner has been a national security adviser to the Senate Foreign Relations Committee and testified before numerous congressional committees. Studying his works offers some hint of the weaknesses of his academic input into foreign policy in the United States. His CV is very skimpy to say the least, largely consisting of op-eds, power-point presentations and submissions to government committees.

Turner is most famous for his defense of presidential prerogatives in military matters without the checks of Congress. In contrast to the vast majority of scholars, Turner has argued against the doctrine that “unchecked” presidential power is incompatible with democratic governance. He defends “unfettered” presidential power to be at the heart of the constitution, namely, that the power of the democratically elected “monarch” is unboundaried. This thesis is not accepted as a very serious perspective by the vast majority of established constitutional experts. Here is how he expressed his view. “Congress exceeded its proper authority in several instances related to war powers and intelligence.” Turner especially stressed the issue of intelligence and often cited John Locke’s doctrine (Two Treatises of Government) that success in war, described by him as a state of enmity and destruction, required unity of plan, speed, dispatch and secrecy

Turner is fond of quoting Chief Justice John Marshall on this issue. “By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience…whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.”

The problem is that secrecy in John Locke applied to implementation not to strategy and direction. The latter required a shared long term and even permanent conviction and shared by the executive, the legislature and the people of a realm. This required articulation and consent, not deceit and surreptitious behaviour. Strategy applies to long term existential threats. Tactics apply to the management and execution of opposing that threat. A State of peace among citizens requires consent. Conduct of a war against an enemy requires secrecy. The issue is always how you combine secrecy with consent and not have secrecy supplant consent. Interpreting the power of the purse and the approval of appointments very narrowly just does not cut how the dialectical dance works.

However, Turner’s interpretation of the last years of the Vietnam War, while influenced by that non-conventional doctrine, is, if that is possible, even more questionable and, I believe, outlandish. Those interpretations can be read in many of his presentations that presumably informed Nancy when she began making the film: “Reflections on the Vietnam War,” given to the Air Force Military Academy in 2010; “The Consequences of U.S. Abandonment of Indochina” given at the Fall of Saigon conference in April of 2010. For more recent references, see Turner’s power point presentations on the net entitled, “Remarks on the 50th Anniversary of Authorization for the Use of Military Force in Indochina (the Gulf of Tonkin Resolution)” given to the National Press Club in August 2014; “The Vietnam War and Constitutional War Powers” (October 2014), “Myths of the Vietnam War,” (2015) and “Views on Vietnam: The Irony of the LBJ Library Vietnam War Summit” (April 2016).

All are part of a revisionist history narrative that is akin to the one Hitler offered to Germans explaining why Germany lost WWI. “I continue to believe,” said Turner, “that a misguided and horribly misinformed Congress snatched defeat from the jaws of victory in Indochina, leading directly to the slaughter of millions of innocent lives and the consignment to Communist tyranny of tens of millions more.” Why would you include the testimony of such a questionable authority in a film about the horrible experiences of Vietnamese refugees even if it was somewhat credible? The thesis on the fall of Saigon is a crucial debate and a conflicted issue requiring one form of documentary treatment. The portrayal of the suffering of those who fled is based on a very wide consensus. The cost to credibility of including a thesis about the reasons for the loss of a war in a film about human suffering is enormous.

This is also true of the narrative offered by Lewis Sorley, author of A Better War: The Unexamined Victories and the Final Tragedy of America’s Last Years in Vietnam. His thesis is bought hook, line and sinker by Nancy Bui and, in the film, is offered in an abbreviated account. She expanded upon this thesis in my discussions with her after watching the film. The Americans and South Vietnam had defeated the Viet Cong, had allowed the South Vietnamese government to once again exercise its authority in the towns and villages, and the South Vietnamese army had by then been so well trained that it could carry the war forward without the use of American troops on the ground. However, Nixon and Kissinger sold out South Vietnam in the Paris Peace Accord of January 1973 and then double crossed the South Vietnamese by not resupplying them with arms and ammunition. This position has some justification, particularly the first of these two propositions. But the argument that in 1972, the Americans had won the war when General Abrams replaced General Westmoreland and shifted the strategy from the pursuit of the Viet Cong and body counts to a war to secure villages is highly questionable. Essentially, the thesis argues that the war had been virtually won by the American and South Vietnamese military and then the victory was squandered by the politicians and diplomats engaged in the Paris Peace Accords and its aftermath.

Colloquially put, the U. S. bugged out. Having gotten the North back to the bargaining table, Nixon and Kissinger cut a deal – the 27 January 1973 Paris Peace Accord – which allowed the North to keep its forces in South Vietnam. 80,000 North Vietnamese troops were permitted to remain in South Vietnam and this number was surreptitiously expanded to over 100,000 troops as Hanoi prepared for its 1975 offensive. The breach in the Accords was never really challenged by the U.S. or the world. At the time, of the 160,000 American troops once in Vietnam, down to 27,000 when the Accords were signed, under pressure from the anti-Vietnam War movement and a cowardly Congress, America cut and ran.

Further, Nixon refused to resume bombing to enforce the Accords. This enabled the North to use the cover of a cease fire to move more men and materiel into the South. Meanwhile, Congress, with bills like the Fulbright-Aiken Amendment, and extensive cuts to the military budget, pulled the logistical rug out from under the South. At the very time that the North was stockpiling arms, supplied by China and Russia, the South was having its supply of arms seriously curtailed. It was South Vietnam’s bad luck, at its hour of greatest peril, to be saddled with a feckless ally. Imagine having to depend on the U.S. for the logistical support which is your life’s blood at a time when it was being run by Nixon and Kissinger at the executive level and by folks like Ted Kennedy in the congressional realm. Sorley, and Nancy Bui in turn, lays much of the blame at the doorstep of the American political leadership.
Who else were the real villains responsible, in this revisionist version, for the fall of Saigon? The media focused on the protesters and the casualties (57,000 Americans died in the Vietnam War). A fickle public led by students and liberals opposed the war. There is no discussion in the film about the bombing of Hanoi, the efforts to destroy the supply lines, the refusal of the Saigon government to recognize the reality of the Viet Cong and the civil war (the Viet Cong are, to the best of my memory) never mentioned in the film.) and the widespread destruction in Laos, the failure to sustain a representative government instead of corrupt dictators or even a disciplined core of army officers – failures that would be repeated again and again for decades after the Korean conflict when America entered a foreign theatre to fight a war.

South Vietnam surrendered on 30 April 1975. America rescued 10,000 Vietnamese linked to the military effort and subsequently took in tens of thousands of others in the next three years, many or most of whom were linked with the American war effort. But in 1978, the Vietnamese government began a much wider and more oppressive regime that first targeted the ethnic Chinese in Vietnam and then spread to all other middle class Vietnamese. The suppression was horrendous and it was in this period that Canada entered into scene to help resettle refugees fleeing communist repression and not just those who lost the war.

Did a film about oppression and flight of refugees have to be combined with an alt-right interpretation of failure in the war? Obviously not. Interpreting the reasons for the fall of Saigon deserves a separate film in its own right. The effort to marry the two related but separate topics gives the impression that the plight of the refugees is merely being used to advance an ideological viewpoint. An excellent and emotionally powerful film about the Vietnamese refugee exodus is, ironically, almost drowned in a propaganda film about the reasons the South Vietnam government fell. I personally was torn between the tears I shed at the horrors suffered by the refugees and the tears I metaphorically shed at this lost opportunity to create an award-winning feature-length documentary. Though a lost artistic opportunity to make a great documentary of the exodus of the Vietnamese boat people does not compare with the real tears I have shed over the years at the suffering of the Vietnamese refugees fleeing a communist regime, nevertheless I was torn between my sadness at the lost opportunity and the revival of my compassion for the suffering and the dead. The film is valuable for attending to the latter. But it is flawed and distorted by advancing a far out historical thesis. And that is a pity.

An Afterword

One final and minor but relevant academic point arose, not in the film, but in my subsequent discussions with Nancy Bui. Nancy contended that the Paris Peace Accord obligated the U.S. to resupply South Vietnam with military weapons. I argued that the Peace Accords only permitted the U.S. to make up for depletions. As I recalled, the Accords stipulated that the U.S. would stay out of Vietnam after the U.S. army withdrew in terms of supplying military troops or equipment, except to replace losses on a one-to-one basis. Nancy insisted that there was no provision forbidding America from resupplying the South Vietnamese Army. I was not sure if my memory was correct and I promised to re-read the Accords to check whether Nancy’s interpretation was more accurate. The point is obviously relevant to a thesis that faults the U.S. for the fall of Saigon in general and for the refusal to re-supply South Vietnam with military arms.

There is some truth in this. Nixon did evidently secretly promise President Thiệu both that America would be able to maintain its logistical advantage and that if North Vietnam breached the agreement, the U.S. would resume bombing the North. However, chapter V, article 15(d) of the Paris Peace Accords provided that North and South Viet-Nam shall not join any military alliance or military bloc and shall not allow foreign powers to maintain military bases, troops; military advisers, and military personnel on their respective territories, as stipulated in the 1954 Geneva Agreements on Viet-Nam. Article 2 of Chapter II specifically stated that, “the United States will stop all its military activities against the territory of the Democratic Republic of Viet-Nam by ground, air and naval forces.” This was interpreted as excluding the Americans from acting militarily in any way on behalf of South Vietnam.

Further, the Case-Church Amendment approved by the U.S. Congress in June of 1973 endorsed this interpretation and explicitly prohibited further U.S. military activity in Indochina and at a time preparations were underway to impeach Richard Nixon over the Watergate scandal. When North Vietnam resumed the war and launched the 1975 offensive, the U.S. refused to offer further military assistance and certainly refused to bomb the North. The North Vietnamese succeeded in defeating the South Vietnamese army, not primarily because North Vietnam was being supplied by Russia and China but America was not re-supplying South Vietnam, but because morale in the South Vietnam army had disintegrated, because corruption had eaten away at its soul and because most officers fled the field and abandoned their troops as the North Vietnamese advanced. The North Vietnamese did not have to fight very much to win the war. Replacing equipment was irrelevant when the South Vietnamese army was collapsing and the North Vietnamese were seizing more and more American arms and equipment.

Whether South Vietnam lost the war or the war was lost because the American people and the Congress betrayed and let down their partners is at best a matter of controversy. Dogmatic assertion on one side produced a propaganda film that undermines the documentary on the suffering of those who fled the new totalitarian order.

With the help of Alex Zisman

LBJ, LBJ, How Many Kids Did You Kill Today?

Corporealism XII: LBJ, LBJ, How Many Kids Did You Kill Today?

by

Howard Adelman

Upon the assassination of John F. Kennedy in November of 1963, having been Kennedy’s Vice-President, Lyndon Baines Johnson (LBJ) became the 36th President of the United States. A year later, he won a sweeping victory in his own right, but by 1969 he had become the main villain responsible for perpetuating and escalating the Vietnam War (the American War for the Vietnamese) and decided not to stand again for the presidency. What had happened between Kennedy’s speech, “A Strategy for Peace,” and 1969? The answer can be found in what happened in 1964.

From a hawk, a presidential candidate who first won election on the fabricated claim that there was a “missile gap” between the U.S. and the USSR to the advantage of the Soviet regime, Kennedy had become a convert mouthing the slogans and beliefs of the peace movement. He had reigned in his generals, or so it seemed. But had he? There were 16,000 American servicemen stationed in Vietnam to help train the Vietnamese army and participate alongside South Vietnamese troops in fighting the Viet Cong. America suffered 122 combat deaths in 1963 alone and had become the main arms supplier for the South Vietnam government’s war against the insurgent guerillas but was losing helicopters at an enormous rate simply from ground fire.

President Kennedy in his 1963 State of the Union Address had insisted that, “the spearpoint of aggression had been blunted in Vietnam.” This was a situation that LBJ had not initiated but had inherited. But he never questioned the repeated misrepresentations by the military brass of the progress of the war in spite of the facts taking place observed by their own officers and the advice to switch the emphasis from military sweep operations to civil and political action. The top brass did the reverse, calling the “hearts and minds” operation a “sissy” approach and shifted more resources into the military battles and called for more troops on the ground.

When LBJ took office on 22 November 1963, in his inaugural speech, he promised to enact Kennedy’s Civil Rights legislation and declared his own war, not against communism but against poverty. He more than fulfilled the promise to complete Kennedy’s war on apartheid America. A year later in November of 1964, he won the largest landslide in the history of American presidential campaigns, winning with 61% of the popular vote and sweeping the Electoral College.

In 1964, after 83 days of debate, the Civil Rights Act was passed that ended legalized racial segregation in the use of any public facilities anywhere in the United States. Discrimination in employment was outlawed. The Southern control of the Senate through the use of the filibuster lay in ruins, as did future support from white voters for the Democratic Party in the south. Nevertheless, in the Johnson electoral sweep of 1964, 28 Democratic Senators and 295 Democratic members of the House of Representatives had been swept into office on LBJ’s coattails. Johnson’s bullying and entreaties, exchanges of favours and waving a very large stick, had worked wonders. In the 1965 Voting Rights Act after he won his sweeping re-election, discriminatory voting rules were banned and the gerrymandering of electoral districts was made illegal. Yet what comes immediately to my mind when I think of President Johnson? Not his enormous achievements, not his Great Society program and legislation to eradicate poverty and guarantee racial justice, not his Medicaid protections for the elderly, not his guarantees of equal access to education and his Headstart program, not the first efforts ever to protect America’s natural resources and not even the beginning of a series of missteps in America’s war against crime, but “LJ, LBJ, How many kids did you kill today?”

Six months after his inauguration in his own right, in July 1965, LBJ received a request from General William Westmoreland, the commander of U.S. combat forces in Vietnam, for 175,000 to 200,000 additional troops. Johnson agreed to 50,000 on top of the 16,000 already there. In February of 1963, General Paul D. Hawkins had requested 485,000 personnel promising subsequent rapid reductions. He was supported in his requests by the “optimistic” reports (some would call them exercises in self-deception if not outright lies) by Army Chief of Staff General Earl Wheeler that victory was in sight.  Those reports by the top brass were contradicted by on the ground assessments, such as that of Colonel Wilbur Wilson that the attacks against the hamlets overwhelmingly killed civilians since the advance bombardments on the hamlets forewarned the Viet Cong who escaped into the jungles.

Whereas Kennedy began as a hawk and converted to a dove, LBJ, when he was Vice-President, opposed military escalation in Vietnam, but became its adopted parent. By the end of 1965, almost 200,000 Americans were serving in Vietnam. Johnson authorized the expansion of the U.S. bombing campaign. By 1968, there were a half million American troops in Indochina. LBJ then had an approval rating of only 26% and American campuses and communities were ridden with protests and clashes over the war. Americans had become cynical about government even though economic growth had been raging forward at an average of 4.5% per annum, personal incomes were growing by leaps and bounds, and unemployment had reached a peak of an unprecedented only 3.5%. In spite of all these positive indicators, a wave of American refugees began migrating to Canada. Abroad, Americans taped the new Canadian flag on their backpacks as they traveled to avoid being reviled overseas.

LBJ’s problems began with the 1964 Gulf of Tonkin resolution that, in the context of the fight against communism, was passed by the United States Senate in 1964 after only 40 minutes of debate. Recall that Eisenhower had advised being steadfast in one’s loyalty and support of allies, but in his twelve principles to guide policy, his last advised engaging with allies “in a ‘confederation of mutual trust and respect’ among equals no matter how weak an ally may be, and never abandon the continuing imperative in pursuit of perpetual peace and, wherever possible, the avoidance of the certain agonies of war.” To that end, the pursuit of disarmament had to remain a continuing imperative as Kennedy had reiterated this theme in his famous address, “A Strategy for Peace.”

The Gulf of Tonkin resolution was a fraud, a child of the Chief of Staff’s beliefs that, in the fight against communism, including deceiving Americans as the order of the day. Recall Lemnitzer’s proposal for creating a pretext for engaging Castro in battle by staging an attack on Guantánamo and by setting up attacks on Cuban exiles in Florida that could be blamed on Castro agents. However, with LBJ they had a willing listener. He had been left out of the loop by JFK and had not acquired Kennedy’s skepticism of the military brass. Besides, LBJ had been a firm believer in the “Domino Theory,” and a belief in helping the South Vietnamese government fight off the communists. LBJ supported the presence of American troops in Vietnam. He just did not want to support an escalation in the deployment of more troops to Vietnam until he had won re-election.

But the American Chiefs of Staff believed that American intervention was urgent, otherwise the South Vietnamese government was in danger of falling to the Viet Cong.  General Khánh, the new leader in Vietnam, spoke directly to LBJ and told him that the South Vietnamese army was not yet capable of standing up to the Viet Cong. The American presidential elections were almost a year away. As a compromise, KBJ approved continuing first “Operation Plan 34A” (OPLAN 34Alpha) which he inherited from JFK and then authorized “Operation Plan 34B”.

OPLAN 34A was a covert action program in support of the South Vietnamese government to insert undercover operatives and naval operations for purposes of sabotage conjoined with aerial reconnaissance. Under Johnson, this operation was transferred from the CIA to the American Military Assistance Command in South Vietnam under the direct command and control of the Pentagon. The trained operatives inserted into North Vietnam were being captured on a regular basis indicating that North Vietnam had a successful spy program in operation in South Vietnam. So OPLAN 34B shifted from putting its weight on its right foot and began emphasizing its naval operations, including electronic surveillance by ocean-going minesweepers. The American navy acquired and operated a small fleet of very fast patrol boats that landed rapid action teams behind enemy lines and engaged in offshore bombardment, increasing the activities enormously over the summer of 1964 after an intense engagement at Chan La.

Maritime surveillance by minesweepers had already been replaced by destroyers capable of self-defense. The Democratic Republic of Vietnam responded in turn, not by attacks on the American ships, but by deploying gunboats and torpedo-equipped frigates to track the American maritime maneuvers. On 2 August 1964, one of those destroyers, the USS Maddox, was reported as having come under fire by North Vietnam patrol boats in the Gulf of Tonkin.  LBJ used the alleged incident to secure passage by Congress of the Gulf of Tonkin Resolution (formally the Southeast Asia Resolution) passed on 7 August 1964 which authorized LBJ to use military force in Southeast Asia without obtaining the prior approval of Congress or a formal declaration of war.

It was all a fabrication. Did LBJ know that, or was he simply being used by the military brass who had no respect for civilian presidents since Dwight Eisenhower ended his term as President? There were supposedly two confrontations in the Gulf of Tonkin. Three North Vietnamese torpedo boats were alleged to have attacked the USS Maddox engaged in surveillance operations. A sea battle allegedly took place. The second alleged incident on 4 August was quickly revealed to be mistakes on radar of “ghost” ships and the attacks by the Maddox joined by the Turner Joy were against blips on their radar screens in turbulent weather rather than real North Vietnamese patrol boats. Robert S. McNamara, the Defence Secretary Johnson had inherited from JFK, in a documentary called The Fog of War admitted that there was no real incident on 4 August 1964 and, in the first incident, there had been no attack by North Vietnamese boats against the USS Maddox. In 1995, when General Vő Nguyën Giáp, former head of the Vietnam People’s Army in North Vietnam, met with Robert McNamara, the latter still insisted, however, that the whole incident had been to warn the patrol boats not to come within ten thousand yards of the American ships.

No battle at all. But a big American War followed. In 1963 we had come to believe that we were finally on the road to peace when Kennedy formally renounced the MAD doctrine and endorsed seeking a test ban treaty. All the while covert action had been underway to escalate a conventional guerilla insurgent war backed by the North Vietnamese. Johnson may not have been briefed about the perfidy of the senior American military brass, but McNamara knew and seemed willing to go along with the deception at the time. Johnson was already prone to going along with the escalation as long as it did not jeopardize his winning the 1964 election. For LBJ believed in the Domino Theory and shared the generals’ beliefs that the advance of communism could only be stopped by military means.

A prime source of the truth of what happened came from Daniel Ellsberg. At the time of the second alleged incident, he was on duty at the Pentagon receiving messages from the surveillance ships. Ellsberg was a captain in the marines and a young mathematician who had taken graduate studies at Harvard and worked for the Rand Corporation as an analyst where he was a committed Cold Warrior. Disillusioned seven years later, he became the source for the infamous Pentagon Papers. At the time he knew that there had been no provoked attack if there had been any attack at all.

As reported publicly, the Gulf of Tonkin incident allegedly consisted of the following:

  • An attack on the afternoon of 2 August by three North Vietnamese torpedo boats against the USS Maddox
  • The Maddox was attacked within 10 nautical miles of the U.S. ship that was lying in international waters 28 nautical miles from the North Vietnamese coast
  • Maddox was attacked by a torpedo
  • Maddox replied by firing its 5” guns.
  • Another torpedo was directed at the Maddox
  • The third torpedo boat, which had not yet fired its torpedo, was hit by a shell from the 5” guns of the Maddox
  • Jets were launched from the destroyer USS Turner and allegedly sunk one retreating North Vietnamese fast patrol boat and damaged another.

According to an American NSA study:

  • North Vietnamese patrol boats had never fired torpedoes against the Maddox
  • Though the Maddox claimed to be in international waters, according to Admiral Ulysses Simpson Grant Sharp Jr., it was actually within the 12 mile limit recognized internationally according to the law of the sea and claimed by North Vietnam as part of its territory; even the Pentagon orders to the captain to stay 8 nautical miles (9.2 regular miles) from the coast put the ship inside North Vietnamese territorial waters; the information did not come from a low level officer but from Sharp who was then a PACOM Commander and was subsequently promoted to a four star admiral commanding the United States Pacific Fleet from 1963 to 1964 and head of United States Pacific Command from 1964 to 1968 – another proof of how it pays to buy into and support the military brass party line
  • The Maddox had fired on fishing boats
  • North Vietnamese patrol boats then intervened to protect the fishermen, but fired guns, not torpedoes
  • According to air squadron commander James Stockdale, who was later captured and imprisoned by the North Vietnamese, there were no targets at sea except American ones, but he was ordered to suppress that information at the time. (See James Stockdale (1984) Love and War)
  • Senior CIA intelligence officer S. Eugene Poteat was asked in early August 1964 to examine the radar operator’s report, and he concluded no real torpedo attack had taken place, though retired Rear Admiral Lloyd “Joe” Vasey, backed by 18 military witnesses, testified offering details that an actual attack had taken place, suggesting not simply a mistake, but a conspiracy of deep deception not just a misunderstanding
  • See John White’s 2014 book, The Gulf of Tonkin Events – Fifty Years Later: A Footnote to the History of the Vietnam War; White, who had been previously skeptical about the incident, was inspired to write the book when he interviewed Stockdale, then an admiral, and Joseph Schaperjahn, the chief sonar operator on the Turner Joy who verified that the initial Maddox radar reports were erroneous

It was the second phantom incident that set LBJ in motion when the two American ships claimed to have sunk two attacking North Torpedo boats. There never was, even at the time, any real evidence of an attack. Cables from the Maddox from Captain John J. Herrick, indicated doubt whether any real incident had taken place. There had been only one claim that a single torpedo had been fired and it had only allegedly been heard but never seen by anyone. Nevertheless, after receiving this highly qualified alleged report of an attack, without any further critical assessment, well warranted under the circumstances, but without being informed explicitly by McNamara that Herrick himself even doubted that a real confrontation had taken place, LBJ expressed outrage and ordered retaliatory measures on 5 August. Within hours of LBJ making these claims in his Gulf of Tonkin address to the nation in which he said, “Repeated acts of violence against the armed forces of the United States must be met not only with alert defence, but with a positive reply. That reply is being given as I speak tonight.” American aircraft launched from U.S. carriers were bombing North Vietnam, focusing initially on four torpedo boat bases.

LBJ never indicated that America had been involved in a covert war since 1961and his statements that America’s only goal was a limited military response as a warning to the North Vietnamese was an outright lie. Senator Wayne Morris, who had heard from a secret informant that the whole story was a hoax, was not given time to set up a Senate committee to examine the logs of the two ships and hear from various witnesses. Morris’ efforts at delay were overwhelmed by a vote in support of 88 to 2 senators giving Johnson unlimited rights to take military action. The House voted unanimously in support of LBJ.

Longer term practices of the Joint Chiefs of Staff and the National Security Council during that period suggest deep habits of deceptions. Yet the seemingly moderate character of LBJ’s approach went a long way in misleading Americans, especially in contrast with the ardent hawkish views of Barry Goldwater whom he faced in the 1964 election campaign. A month after his inauguration, Johnson authorized “Operation Rolling Thunder” to begin on 24 February. By 8 March, 3,500 American troops landed on the ground to directly engage the Viet Cong and the North Vietnamese. American installations were no longer off limits for attack by the Viet Cong lest America be given an excuse to escalate its involvement. It did not matter. America’s commitment rose to over have a million military personnel involved in the war. Yet Senator Morris was defeated in his effort at re-election in 1968.

We now know that both LBJ and McNamara at the time had their own doubts about whether any attack had actually taken place. The passions for war were being stirred by the American media while LBJ was assuring Americans that there would be no war between the U.S. lest that in any way jeopardize his election chances. It has since become reasonably clear that both LBJ and McNamara had been willing dupes of a fabrication by the military brass to escalate the war in Vietnam, though the evidence remains circumstantial; no smoking gun had been produced. (See James Bamford, Body of Secrets.) Having got away with it, the American military brass now went on a course of escalating provocative incidents to bring the war to North Vietnam.

Robert J. Hanyok in his reassessment for The New York Times claimed the evidence supports a case of unintended error rather than deliberate deception. My review of both the evidence and the long term thought processes and practices of the Joint Chiefs of Staff and the National Security Council led me to the opposite conclusion, a deep pattern and practice of deliberate deception in the highest ranks of American military and civilian leadership at the time. The irony is that all this knowledge is available because America is a more open society than any other in my experience, confirmed when I was charged with investigating the involvement of various states in the Rwanda genocide.

The course of action was assisted on its way, not only because of LBJ’s personal convictions, but by the fact that he was a bully by nature. Lester B. Pearson, after he became Prime Minister of Canada, visited Washington to discuss the possibility of cancelling or delaying the installation in Sudbury of the Bomarc missiles that were specifically designed for nuclear warheads and that I wrote about yesterday. The two were in the Oval Office. After Pearson made the suggestion, Johnson first scowled and then growled and then approached Pearson face to face, his chest within inches of Mike’s chin. The tall Johnson actually took hold of the lapels of Pearson’s jacket, lifted him off his feet and roared into his face, “You try to stop the installation of those missiles and I’ll have your balls for dinner.”

I heard the story the evening of the incident. Pearson had flown back to Toronto, rather than Ottawa. Vince Kelly, then the head of the Young Liberals of Canada, came over to my house after he dropped Pearson off at his hotel and told me the story. He insisted that Pearson was still shaking from the incident when he arrived at the airport. Years later, when I chaired one of three commissions looking into the use of nuclear energy for peaceful and military purposes and where the waste could also be safely handled, our commission heard testimony from Professor David Cox of the Politics Department at Queens University that all along the Bomarcs had just been a decoy. They had been obsolete as we had claimed in the sixties. The vital and effective nuclear tipped missiles were already on Canadian soil all along the Dew Line. The Canadian government knew nothing about it at the time.

Deliberate deception has its own hubris. Kennedy never confessed to his misleading election campaign and to the claims of a missile gap. He allowed the generals and admirals to play with their military toys safely on leash, or so he thought, while he concentrated on setting the threat of nuclear war on a new course. There is no evidence that he briefed Lyndon Baines Johnson, his Vice-President, on the madcap schemes of the American military top brass, perhaps because LBJ might sympathize with them. Because of those sympathies, because Johnson himself was a bully, he added to and exaggerated the schemes rather than reigning them in. Instead of going on record as the greatest president ever as a result of his enormous domestic record of accomplishments, he went down in history as America’s greatest killer of kids, American but especially Vietnamese.

Can Obama learn the correct lessons from Johnson’s presidency and apply them when it comes to making decisions about Syria, about Iraq, about Yugoslavia and about Libya? Johnson had allowed himself willingly to become the ventriloquist for the military machination of the top brass in the U.S. Is Obama doing the same thing?

 

With the help of Alex Zisman