They charge war crimes: how John Kerry et al. have defamed the American serviceman in Vietnam.

VIETNAM is the war that just won't go away. And for many Americans, especially those in the media, nothing says "Vietnam" quite like "atrocity" and "war crime." Indeed, it is the conventional wisdom that My Lai, the darkest chapter of America's war effort, was merely a microcosm of the war.

This belief that Vietnam was one big atrocity explains why most reporters, even those too young to remember it, are predisposed to believe the worst about America's role in Indochina. As everyone now knows, a young John Kerry, testifying before the Senate in April 1971, gave credence to the charge that U.S. policy in Vietnam violated the laws of war and that individual service members routinely committed war crimes and atrocities. Some have defended Kerry by arguing that only a small part of his testimony dealt with atrocities and war crimes; unfortunately for them, there is something called the Internet that permits people to read Kerry's testimony in full, and to see that that characterization is wrong. Others have embraced Kerry as a hero for refusing to accept what former anti-war activist Tom Hayden called the "fabrications, delusions, and fantasies" Americans had embraced to assuage their guilt about Vietnam. In a touching defense of his ex-wife in The Nation, Hayden wrote: "It will be easier, I am afraid, for those Americans to believe that Jane Fonda helped torture our POWs than to accept the testimony by American GIs that they sliced ears, burned hooches, raped women, and poisoned Vietnam's children with deadly chemicals." And Lawrence O'Donnell said, on MSNBC on February 11, that "everything that John Kerry has said about the Vietnam War was true. It was an unjust war for American interests.... There was not a worthy moment of American military intervention in Vietnam."

With all due respect, these people have no idea what they are talking about. There are two issues here. The first is the broad claim that the U.S. conducted the Vietnam War in violation of international law. The second is that U.S. servicemen committed atrocities regularly. The evidence doesn't support either claim. As Guenter Lewy observed in his indispensable book America in Vietnam, these charges for the most part were "based on a distorted picture of the actual battlefield situation, on ignorance of existing rules of engagement, and on a tendency to construe every mistake of judgment as a wanton breach of the law. Further, many ... critics had only the most rudimentary understanding of international law and freely indulged in fanciful interpretations of conventions and treaties so as to make the American record look as bad as possible."

THE LAWS OF WAR

Atrocities and war crimes are acts of violence in wartime the brutality and cruelty of which exceed military necessity. Among them are looting, torture, rape, massacre, mutilation of the enemy dead, and the killing of captured soldiers or non-combatants. The enumeration of certain acts of war as atrocities and war crimes is a relatively recent phenomenon, corresponding to the emergence of civilization from savagery.

In the West, restraint in war was institutionalized by various conventions during the late 19th and early 20th centuries. In April 1863, the Union Army was issued General Order 100, the "Lieber Code," a manual that attempted to codify the laws of land warfare. The Lieber Code became the model for a number of European manuals. International conventions followed, including the Geneva Convention of 1864 and the Hague Conventions II (1899) and IV (1907).

The West has placed three general constraints on its conduct of warfare: proportion, discrimination, and the positive law of war. Proportion means that particular actions must be proportionate to military necessity and not involve needless suffering or destruction. Discrimination means that direct intentional attacks on noncombatants and non-military targets are prohibited. The positive law of war derives from conventions, customs, the general principles of law, decisions in international law, and the writings of authorities. The most important conventions that underlie the positive law of war (and therefore provide guidelines for the conduct of war) include the Hague Convention IV, the Geneva Convention of 1949, the 1977 Protocols to those conventions, and the Nuremberg precedent.

The law of war attempts, as far as possible, to civilize war: to strike a balance among the principles of military necessity, humanity, and chivalry and to employ the public conscience of civilized nations to restrain war. Thus, the Martens Clause of the Preamble to the 1899 Hague Convention II reads: "Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity, and the requirements of the public conscience." The positive law of war thus attempts to codify the principle that belligerents do not have an unlimited right to harm their adversaries.

The key to applying the law to particular situations is the principle of military necessity, which holds that, subject to the principles of humanity and chivalry, a belligerent is justified in applying the amount of force necessary to achieve the complete submission of the enemy as soon as possible, with the least expenditure of time, life, and resources. Military necessity recognizes that a commander's overriding concern is the accomplishment of his mission and the safety of his troops. One would not attack a populated area, increasing the risks of civilian deaths, unless such attack were essential to the campaign. Humanity is the self-evident recognition of the fact that one's enemy is also a human being; prohibitions against killing or torturing prisoners, and the generally recognized obligation to provide medical treatment to wounded prisoners, flow from this principle. Chivalry is the customary recognition of the idea that the strong protect the weak. Soldiers do not declare war on women or children because it is dishonorable to do so. If women or children engage in war, however, the principle of military necessity usually takes precedence over chivalry.

VIETNAM AND 'WAR CRIMES'

The standard claim against the U.S. in Vietnam was that its actions violated the international law of war, or constituted war crimes and crimes against humanity. For example, in 1969, Noam Chomsky wrote that the U.S. was waging "a criminal war" in Vietnam. That same year, a group of distinguished American theologians--including Martin Luther King Jr. and Abraham Joshua Heschel--wrote that "when we measure American actions in Vietnam against the minimal standards of constraint established by the Hague Convention of 1907 and the Geneva Conventions of 1929 and 1949, our nation must be judged guilty of having broken almost every established agreement for standards of human decency in time of war." Anti-American groups such as the Committee of Concerned Asian Scholars accused the U.S. military of committing atrocities in the ordinary course of combat and conducting a policy of genocide against the Vietnamese by means of "indiscriminate killing of civilians." And of course, in 1971, John Kerry told Meet the Press that he "committed the same kinds of atrocities as thousands of other soldiers," including the use of "free-fire zones," participation in search-and-destroy missions, and burning villages.

But the Nuremberg Tribunal defined "war crimes" as violations of the laws or customs of war: "Such violations shall include, but not be limited to, murder, ill-treatment, or deportation to slave labor or for any other purpose of civilian population of or in occupied territory, murder or ill-treatment of prisoners of war or persons on the seas, killing of hostages, plunder of public or private property, wanton destruction of cities, towns, or villages, or devastation not justified by military necessity." And the Tribunal listed under "crimes against humanity" the following: "murder, extermination, enslavement, deportation and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds." Using these Nuremberg guidelines, it is very difficult to support the claim that U.S. conduct of the Vietnam War was characterized by the commission of war crimes or crimes against humanity. The U.S. action was generally within the guidelines of the positive law of war; excesses and violations were usually treated as such.

Consider just one example: the claims that the U.S. employed firepower indiscriminately and made use of "free-fire zones." No one can deny that there was, in Lewy's words, a "lavish use" of firepower by Americans in Vietnam: It was a part, for better or worse, of the "American Way of War." Americans look at soldiering as temporary, something to be gotten over as quickly as possible. Firepower is the American substitute for expending infantrymen's lives.

But the use of firepower does not per se violate the law of war. And it was, after all, the Viet Cong and North Vietnamese who turned hamlets into battlefields. The Communist practice of "clutching the people to their breast" was a violation of the Geneva Convention of 1949, which prohibits a combatant from using the civilian population as a shield: "The presence of a protected person may not be used to render certain points or areas immune from military operations." And while the Hague Convention IV (1907) prohibits the attack or bombardment of inhabited areas that are not defended, it is the general practice of states to treat a town occupied by a military enemy as a defended place, subject to attack.

That the official U.S. position was to avoid indiscriminate attacks on civilians is indicated by a 1966 directive from the U.S. military command: "Firing on localities which are undefended and without military significance, is a war crime." Clearly, the U.S. command attempted to abide by the principle of discrimination, but the method of fighting employed by the enemy made discrimination difficult in practice.

Ironically, at the same time Hanoi's apologists were accusing the U.S. of killing innocent civilians, North Vietnamese Communists were claiming that there really was no such thing as a noncombatant. North Vietnamese General Vo Nguyen Giap, as well as other advocates of "people's war," maintained that "the people" were in effect soldiers, that the role of "the people" in a protracted war was essential, and that success in a people's war required the total commitment of the population. "Every citizen is an enemy-killing combatant. Every house is a combat cell; every village or factory a fortress." On occasion, women and children set mines and boobytraps, or engaged in other warlike actions against Americans. Nonetheless, the official U.S. position never abandoned adherence to the principle of discrimination, and despite the severe difficulties of the Vietnam environment, most commanders and individual soldiers discriminated between civilians and the enemy when at all possible.

And, strangely enough, a major U.S.-South Vietnamese effort to facilitate discrimination was attacked by critics as itself a war crime. To enhance both the security of the South Vietnamese population and the effectiveness of U.S. firepower, some of the South Vietnamese were relocated, and certain areas known to be hostile were designated as "specified strike zones" (a euphemism for free-fire areas). Critics charged that such relocations were in violation of the 1949 Geneva Convention. But in fact that convention not only allows the evacuation of civilians from a combat zone, it imposes a duty to effect such relocations. Article 49 refers to an "Occupying Power" in its prohibition against "mass forcible transfers, as well as deportations of protected persons from occupied territory to the territory of Occupying Power or to that of any other country occupied or not." The main intention of this article is thus to prohibit the deportation of subject populations for the purpose of employing them as forced labor, as the Germans did in World War II. But even if it is claimed that the U.S. was an Occupying Power--which it was not--Article 49 allows "total or partial evacuation of a given area if the security of the population or imperative military reasons so demand." Both conditions existed in many contested areas of Vietnam.

ATROCITIES?

The record shows that the U.S. conducted the Vietnam War with remarkable restraint. Between 1965 and 1973, 201 soldiers and 77 Marines were convicted of serious crimes against the Vietnamese. My Lai is the exception that proves the rule. One of the best witnesses for this point of view is Daniel Ellsberg, a severe critic of U.S. policy in Vietnam, who rejected the argument that My Lai was in any way a normal event: "My Lai was beyond the bounds of permissible behavior, and that is recognizable by virtually every soldier in Vietnam.... The men who were at My Lai knew there were aspects out of the ordinary. That is why they tried to hide the event."

My Lai was an extreme case, but anyone who has been in combat understands the thin line between permissible acts and atrocity. The first and potentially most powerful emotion in combat is fear arising from the instinct of self-preservation. But in soldiers, fear is overcome by what the Greeks called thumos, spiritedness and righteous anger. Unchecked, thumos can engender rage and frenzy; it is the role of leadership, which provides strategic context for killing and enforces discipline, to prevent this outcome. Such leadership was not in evidence at My Lai.

American atrocities in Vietnam were, with the exception of My Lai, committed by individuals or small groups. All were in violation of standing orders and rules of engagement that were, according to Telford Taylor, a critic of many aspects of U.S. Vietnam policy and formerly a prosecutor at Nuremberg, "virtually impeccable." Indeed they were so restrictive that they provoked a great deal of criticism from members of Congress appalled at the disabilities placed on American units. The random violence of individual American acts is not to be condoned or excused, but objective observers must contrast them to the policy of the Vietnamese Communists. The NVA and VC frequently committed atrocities as a matter of policy. A month and a half before My Lai, the North Vietnamese and VC systematically murdered 3,000 people in Hue City. Yet so widespread was the belief that Americans were conducting a barbaric war that many opinion-makers refused to believe, despite the irrefutable evidence, that the wholesale slaughter of civilians in Hue was perpetrated by the Communists. This mindset was revealed by Mary McCarthy, who said of the incident: "I prefer to believe the Americans did it."

WHY DO PEOPLE BELIEVE IT?

If U.S. policy in Vietnam did not constitute a gross violation of international law, and if atrocities were not as widespread as conventional wisdom would have it, what accounts for the claim that the U.S. conducted a particularly brutal and immoral war in Vietnam? I believe there are three sources: 1) Soviet propaganda; 2) the belief on the part of the veterans who related atrocity stories that they were telling their listeners what they wanted to hear; and 3) liars and phonies.

Guenter Lewy notes the establishment of a veritable war-crimes industry, supported by the USSR, as early as 1965. As Ion Mihai Pacepa, a former Romanian intelligence chief, has recounted, the Soviets set up permanent international organizations--including the International War Crimes Tribunal and the Stockholm Conference on Vietnam--"to aid or to conduct operations to help Americans dodge the draft or defect, to demoralize its army with anti-American propaganda, to conduct protests, demonstrations, and boycotts, and to sanction anyone connected with the war." Pacepa claims to have been responsible for fabricating stories about U.S. atrocities in Vietnam and "flacking" them to Western news organizations. Lewy writes that "the Communists made skillful use of their worldwide propaganda apparatus ... and they found many Western intellectuals only too willing to accept every conceivable allegation of [American] wrongdoing at face value." The Vietnam Veterans Against the War (VVAW), a small, radical group that never exceeded a membership of 7,000 (including John Kerry) from a pool of nearly 3 million Vietnam (and 9 million Vietnamera) veterans, essentially "Americanized" Soviet propaganda. When he testified before the Senate in 1971, Kerry was merely repeating charges that had been making the rounds since 1965.

To the anti-war Left, atrocities revealed the Nazi-like character of "Amerika." But, unlike their Nazi counterparts, U.S. soldiers could be redeemed: By confessing atrocities, the Vietnam veterans, once denigrated as "babykillers," were able to receive absolution from the Left, and were transmuted into innocent victims of a brutal war. American military sociologist Charles Moskos has suggested that atrocity stories out of Vietnam were the functional equivalent of heroic war stories from World War II: They provided a meaning to participation in Vietnam that resonated with those who opposed the war and were now judging the returning soldiers. Some atrocity claims were the product of outright fantasy, on the part of soldiers who returned from the war emotionally disturbed. The (anti-war) psychiatrist Robert Jay Lifton wrote of a veteran who, after some time in group therapy, could "confess that he had been much less violent in Vietnam than he had implied. He had previously given the impression that he had killed many people there, whereas in actuality, despite extensive combat experience, he could not be certain he had killed anyone." Finally, there are the phonies: In their invaluable book Stolen Valor, B. G. "Jug" Burkett and Glenna Whitley demonstrated that some 1,700 individuals--including some of the most prominent examples of the Vietnam veteran as dysfunctional loser--had fabricated their war stories. Many had never even been in Vietnam.

True believers on the political left will never accept the fact that there is little evidence to support the claim that Americans committed atrocities as a result of operational policy in Vietnam. But for the rest of America there may be a way to get at the truth. An enterprising reporter should do what Jug Burkett did: get the names and service numbers of all veterans who testified before the various "tribunals"; use the Freedom of Information Act (FOIA) to gain access to their real records; and then check whether they were in a position to have committed or witnessed atrocities. That is as close to a definitive answer as we are likely to get.

Mr. Owens, a contributing editor to National Review Online, is a professor of strategy and force planning at the Naval War College in Newport, R.I.