"Deplorable & Repulsive"

North Viet Nam left little doubt last week that it intends to prosecute captured U.S. pilots as war criminals. Though they gave no dates, Hanoi's ambassadors in Prague and Peking both announced that the trials will be held. Toward this end, Hanoi radio reported the establishment of "a committee to investigate war crimes of U.S. imperialists in Viet Nam." As for the ultimate fate of the airmen, Ho Chi Minh sent a message to Socialist Norman Thomas last week promising "humanitarian" treatment, raising the possibility that the pilots' lives would be spared in a propaganda show.

Unanswered Appeal. President Johnson was not impressed by Hanoi's intimation of benevolence. The very notion that captive U.S. flyers are war criminals, the President told his press conference, is "deplorable and repulsive." In a departure from its usual practice of turning prisoners over to South Viet Nam's forces, the U.S. made known that it held 19 North Vietnamese sailors captured last month when their torpedo boats attacked an American destroyer in the Gulf of Tonkin--with the implication that they were hostages against a possible exchange of prisoners. From President Johnson came a proposal for a Red Cross-sponsored conference to bring about enforcement of the 1949 Geneva Convention, which specifically prohibits reprisals against prisoners of war.

The appeal went unanswered by North Viet Nam, which has already flouted the Geneva Convention by parading U.S. prisoners before hostile street mobs, by refusing to allow Red Cross officials to visit them and, Washington suspects, by exacting confessions of guilt through "moral or physical coercion." Indeed, only slightly less grisly than the possibility of their execution was the prospect that Hanoi's leaders may "spare" their American prisoners--only to sentence them to forced labor in installations likely to come under U.S. bombing attack--even though the convention specifies that prisoners can be put to work only on projects with "no military character or purpose."

Leaders Only. Hanoi claims that the Geneva Convention is irrelevant be cause North Viet Nam is not officially at war. Moreover, it invokes the Nuernberg trials, in which the victorious World War II Allies punished Nazi leaders as war criminals. The Ho regime, itself the aggressor in South Viet Nam, maintains nonetheless that the U.S. is carrying on an aggressive war and that its pilots have committed the crime, as defined by the Nuernberg Charter, of causing "devastation not justified by military necessity." Hanoi's reasoning ignores the fact that U.S. bombing raids have been painstakingly confined to military targets.

The Nuernberg precedent is inappropriate for other reasons as well: the Nazi trials were staged by an international tribunal, involved only highest-ranking enemy leaders,* and came at the conclusion of hostilities. In any case, the humane treatment of war prisoners has long been prescribed by international law and by accepted standards of decency. War, as Montesquieu wrote in 1748, gives neither side any right over prisoners other than that of "disabling them from doing any further harm by securing their persons."

* Of 21 war leaders who actually stood trial, eleven were sentenced to hang, seven received prison sentences, three were acquitted. Condemned to death, Reich Marshal Hermann Goering committed suicide by poison in his prison cell. Ten Nazis--including Foreign Minister Joachim von Ribbentrop, Armed Forces Chief Wilhelm Keitel, and General Alfred Jodl, Hitler's chief military adviser--died on the gallows.

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