Can a country avoid prosecution for crimes against humanity by denying it happened?

Question

I found this article and what I read really shocked me.

There are an estimated 650,000 like Hong Hanh in Vietnam, suffering from an array of baffling chronic conditions. Another 500,000 have already died. The thread that weaves through all their case histories is defoliants deployed by the US military during the war. Some of the victims are veterans who were doused in these chemicals during the war, others are farmers who lived off land that was sprayed. The second generation are the sons and daughters of war veterans, or children born to parents who lived on contaminated land. Now there is a third generation, the grandchildren of the war and its victims.

This is a chain of events bitterly denied by the US government. Millions of litres of defoliants such as Agent Orange were dropped on Vietnam, but US government scientists claimed that these chemicals were harmless to humans and short-lived in the environment. US strategists argue that Agent Orange was a prototype smart weapon, a benign tactical herbicide that saved many hundreds of thousands of American lives by denying the North Vietnamese army the jungle cover that allowed it ruthlessly to strike and feint. New scientific research, however, confirms what the Vietnamese have been claiming for years. It also portrays the US government as one that has illicitly used weapons of mass destruction, stymied all independent efforts to assess the impact of their deployment, failed to acknowledge cold, hard evidence of maiming and slaughter, and pursued a policy of evasion and deception.

Isn't there a legal recourse people in Vietnam can use to get compensation and can the U.S. deny them by just denying it ever happened? I would have thought there could be a sort of "international court" punishing crimes against humanity like we did to Saddam Hussein, or is the "international court" an institution that only punish the losers during a war? The use of chemical weapon is clearly illegal and could be considered a crime against humanity. If so, can a country like the U.S. prevent from being prosecuted for it by denying it happened?

Saddam Hussein was tried by the Supreme Iraqi Criminal Tribunal, which drew its authority from the transitional government set up in the wake of the US-led invasion. It wasn't precisely international, which was a fact certain human rights groups complained about https://en.wikipedia.org/wiki/Trial_of_Saddam_Hussein — origimbo, Sep 01 '19 at 12:48
Where did you "find" this article? Does it say what the "New scientific research" actually is? Agent Orange (and similar chemicals) were widely used in North America too, and the health of many workers suffered as a result, but that doesn't mean there was a government conspiracy to deliberately harm them. — Ray Butterworth, Sep 01 '19 at 12:55
Can you narrow this down to just one question? This post is all over the place. — , Sep 01 '19 at 14:01
Have you heard of the Armenian genocide? The first modern genocide is denied ot this day. Denial is the rule not the exception. Also the Vietnamese govt has their own skeletons to consider. The only real hope is for a country to internally impose justice or some kind of unforced apoplogy. — A Simple Algorithm, Sep 01 '19 at 14:31
Obviously so. Why are you even asking the question? Turkey is doing very well. On the other hand, Germany is constantly under pressure, has only limited freedom of expression. — Bregalad, Sep 01 '19 at 19:12
There is a subtlety here that the answers are missing. Prosecution is not the same as punishment. A prosecution could take place without the consent of the defendant, but enforcing any ruling is a different matter entirely. — DrMcCleod, Sep 02 '19 at 09:00
As it says at its top - the article is over 16 years old. "One imagines" that there has been a very large amount written on this subject since then. Also that you have done some web searching on the subject to bring yourself up to date. What did you find? — Russell McMahon, Sep 03 '19 at 10:29
@jamesqf - your logic is flawed, that's like saying if I'm going to jail your coming too, irrespective of the crime. — Andrew Daly, Sep 03 '19 at 15:25
Lol, the US avoids prosecution for crimes against humanity by simply denying that that court has any power over it. They don't even need to deny any specific events — Hobbamok, Sep 04 '19 at 07:59
Country are never prosecuted for "crimes". Individuals acting on behalf of the government of that country sometimes are. Countries also sometimes have civil liability. — ohwilleke, Feb 20 '24 at 01:01

Denis de Bernardy · Accepted Answer · 2019-09-01T14:49:58.477

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Your question is slightly at odds with reality.

First off, with the important exception of the US government, nobody sensible is quibbling over the mounting amount of evidence that Agent Orange had short and long lasting side effects.

As you've noted already, the US government is not accepting any guilt or responsibility. So the real question is whether there's a court that could find the United States or some of its service members guilty.

There are an International Court of Justice and an International Criminal Court. However:

The United States withdrew from compulsory jurisdiction of the first in 1986, and began to accept the court's jurisdiction only on a discretionary basis in the aftermath of Nicaragua vs the United States.
The United States not only rejects submitting to the second, but also passed the American Service-Members' Protection Act (aka "Hague Invasion Act") which requires POTUS to use "all means necessary and appropriate to bring about the release of any U.S. or allied personnel being detained or imprisoned by, on behalf of, or at the request of the International Criminal Court."

As you may know, the US military budget is rather significant, to put it mildly. As such it's not like another country can force the US to comply with a world court order.

So in practice and until the US stance chances, there isn't much that the affected Vietnamese can do to seek remedy besides exhausting court options.

edited Sep 01 '19 at 14:49

answered Sep 01 '19 at 13:16

Denis de Bernardy

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But if the US government doesn't accept that evidence, why have the US payed millions of dollars for decontamination in Vietnam? – sgf Sep 02 '19 at 07:19
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The city is called "The Hague," so technically it should be the "The Hague Invasion Act," doubling the "the." https://en.wikipedia.org/wiki/The_Hague – Sjoerd Sep 02 '19 at 07:50
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@sgf: Insofar as I'm aware, file that one under good relations with Vietnam rather than admission of guilt. The problem with admitting guilt is that it also means accepting an open-ended liability to clean up the mess and compensating affected US vets and Vietnamese. (Take this with a pinch of salt though, as the situation appears to have evolved during the past decade or two. The main point in the answer was to raise that the US rejects the authority of the ICJ and the ICC and that its army is strong enough that no one can compel them to anything at gun point.) – Denis de Bernardy Sep 02 '19 at 08:01
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@DenisdeBernardy Would compelling anyone "at gunpoint" really be a possible procedure of the ICJ or ICC, or its members? Isn't it more likely that economic sanctions would be put in place? (Which no one would want to do cause of US economic power) – smcs Sep 02 '19 at 09:58
@smcs at first that seems more plausible, however "at gunpoint" also comes into play if the US can force those sanctions to be lifted by holding the ICJ, the ICC or any/some of its members at gunpoint. – GuilleOjeda Sep 02 '19 at 20:27
@Blueriver If the US would literally try to hold ICJ or ICC at gunpoint, at their seat in Europe, the military budgets of pretty much all European nations would quickly skyrocket before the ensuing world war 3, I'm pretty sure. – Nobody Sep 03 '19 at 13:16
@Nobody Well, seeing as how the GDP of the US and the EU are comparable, and the US has years of that sky-high military budget for R&D and stockpiles, I'm not sure Europe would really be compelled to take that bet. – Delioth Sep 03 '19 at 16:49
@Delioth I don't see how Belgium (seat of ICJ and ICC) could just accept US soldiers within their territory, so they would arrest them as peacefully as possible or at least keep them from achieving anything. Then the USA could back down, or invade Belgium. I think they would back down. But if they invaded Belgium, I can't see the rest of Europe, Russia or China just standing by. Both of Russia and China get along with Europe much better than with the USA and would stand to gain a lot of power by getting rid of the USA (while Europe hasn't shown any interest lately to become a superpower). – Nobody Sep 03 '19 at 17:16
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@Delioth Even a covert op mission against ICJ and ICC on European territory might be enough to destroy NATO (the alliance, not its members), I think. – Nobody Sep 03 '19 at 17:23
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@Nobody Europe and Russia combined spends less than half as much on the military than the US. Europe, Russia and China combined is still less than the US. If the US really wants to, there is little anybody can do to stop their military. The main problem for the US is their own citizens not agreeing with military action. This is why any large-scale military action by the US tend to be preceded by pro-war media campaigns (and not just Fox News) – slebetman Sep 04 '19 at 10:22
"short and long lasting side effects." Do you mean "severe and long lasting side effects" or perhaps "short lasting and long lasting side effects"? – ohwilleke Feb 20 '24 at 01:03
The ICJ handles disputes between states, not disputes between individuals and states or internal disputes within states. – ohwilleke Feb 20 '24 at 01:04
@Sjoerd Of course the US and Netherlands are both NATO members, and an act of war against one NATO member is an act of war against all. So if the US were to invade The Hague, it would be going to war with itself. – Mike Scott Feb 20 '24 at 07:02

score 31 · Answer 2 · edited Sep 02 '19 at 12:57

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Countries are not usually prosecuted, only the individuals responsible in the command structure.

There is an international criminal court; not only has the US not signed up to obey its judgements, it has a specific law ("Hague Invasion Act") preventing the international court's judgements being enforced against US military staff.

"international court" an institution that only punish the losers during a war?

Pretty much yes. As a matter of realpolitik it cannot be otherwise, except in extremely small conflicts between or within powerless countries.

edited Sep 02 '19 at 12:57

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answered Sep 01 '19 at 13:13

pjc50

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Not always the losers; but countries like the US, China or Russia can do essentially whatever they want, win or lose. In the end, you can only force a settlement on someone you have some form of dominion over - having ten times their military works wonderfully (as far as those countries with large militaries are concerned). That's one of the reasons why the Allies didn't want to accept peace from the Axis nations until they were utterly broken; a more reasonable peace (as was the standard for centuries) would have left e.g. Germany in a position of some remaining power. – Luaan Sep 02 '19 at 06:27
@Luaan as opposed to what actually happened, Germany becoming the largest economic power and one of the major military powers in Europe? – Ryan Jensen Aug 09 '23 at 17:53
@RyanJensen Fortunately, someone seems to have taken notice of what happened in the nearly identical scenario when World War 1 was "won" :) Though it's likely the upcoming vastness and apparent strength of the growing "communist" bloc helped that decision-making - much better to have a strong Germany as a sort of buffer state than let it fall (again) to such disruption. – Luaan Aug 11 '23 at 13:08

score 12 · Answer 3 · answered Sep 01 '19 at 14:11

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The question is very much at odds with reality. First the US a long time ago acknowledged the use of Agent Orange and it's side effects. Consider

In the Agent Orange Act of 1991, Congress required the National Academy of Sciences to review periodically all medical and scientific research on the health effects of exposure to Agent Orange/dioxin and other chemicals used during the Vietnam War, and to their individual components. The NAS Institute of Medicine now issues biennial reports called Veterans and Agent Orange. The most recent one was issued in July 2009.

Much more at the link. But how does this relate to US/Vietnam relations and responsibilities?

U.S. officials have begun dialogue with Vietnamese counterparts about a humanitarian approach to the issue. In addition, Congress has appropriated $40.1 million since 2007 for environmental remediation of dioxin-contaminated sites and for related health activities, on a humanitarian basis.

answered Sep 01 '19 at 14:11

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That article quotes $16 billion for US vets versus $40m for Vietnamese remediation, a 400/1 difference. Omitting the first number removes useful context. – agc Sep 01 '19 at 22:43
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@agc Is it really useful context? You can hardly compare the two numbers just by taking a ratio. How many people are affected? What are their living standards? How expensive is it to help them? Comparing the numbers doesn't really tell you anything. But regardless, the answer is entirely correct. You can argue that the US government should pay more, but they're definitely paying something, so the OP's premise is flawed, as this answer points out. – Luaan Sep 02 '19 at 06:32
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@Luaan, Re "definitely paying something.": It's kind of like the miser who "supports" his church by putting a penny on the plate every Sunday. Proof by Tokenism. – agc Sep 02 '19 at 21:03
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"Truth will always win" - because winner gets to decide what was the truth the fight was over. – Peter M. - stands for Monica Sep 03 '19 at 21:28

score 11 · Answer 4 · answered Sep 03 '19 at 19:00

It does not appear that the US employed Agent Orange as a chemical weapon, with the goal of causing cancer in the Vietnamese 30 years later. That was an unexpected side effect, not really understood at the time of employment, that also hit US troops.

There might be some civil liability involved, but the essential ingredient of intent, in order to prosecute as crimes against humanity, is not there.

In contrast, consider the Holocaust. There is no question that the intent was to exterminate millions of innocent people. So said the Nuremberg Tribunal, and the chief instigators were hanged.

The same was found to be true of the Serb attacks on indigenous Muslims in the Balkans, that those attacks were launched with the specific goal of genocide against civilians, and there was some prosecution of the commanders involved.

For a more relevant case, consider what's going on in Hong Kong today. If the protests continue to rise in volume, China will likely engage in a violent putdown some time soon, lest the sentiments expressed spread to the population in mainland China, where containment might be impossible.

And then, like Tianamen Square, deny that it happened.

Based on existing examples, the answer appears to be yes... as long as the government doing the denying remains in power, and is powerful enough to resist any attempts to prosecute.

score 3 · Answer 5 · answered Sep 02 '19 at 23:21

Yes, because you cannot criminally prosecute a country whatsoever, period.

International public law is (1) a protocol for international politics and (2) a set of conventions to resolve disputes between states. Prosecuting states for their crimes is not one of them. In no occasion on history has a state been indicted of a crime by a court of law: not even at Nuremberg or Tokyo. (Yes, the Nazi party, the SS, the Gestapo, etc., were found to be guilty, but not the German state.)

International criminal law is a thing, but it is more of an international mechanism to prosecute individuals who have committed crimes against humanity or crimes of aggression. In existing and past "international criminal courts", it was always persons, not states, that have been prosecuted. The only difference between "international" criminal courts and traditional criminal courts is that the composition of the court is international, and that the source of the criminal law is in treaties rather than national criminal law.

So, any country can avoid prosecution for its crimes by doing nothing, because there isn't such a thing as prosecuting a state for its crimes!

The perpetrators of those American war crimes could in principle be tried in an international court, but:

(1) the U.S. is not a party to the Rome Statute, and even if it were, the ICC has no jurisdiction over crimes committed before its formation;

(2) the other way for the ICC to consider a case (or for a special international tribunal to be established) is through a UN Security Council resolution, but we all know that the U.S. has a veto there.

Even if a state tries to sue the U.S. in the International Court of Justice for compensation (comparable to a civil court at the national level), the U.S. accepts jurisdiction and loses the case, the chances for the other state party is dim, because the U.S. has a particularly notorious history of refusing to abide to ICJ judgments after voluntarily acceding to its jurisdiction (see Nicaragua v. United States and Mexico v. United States).

Even if you could say a state has ever been successfully indicted by another state (arguable; "we find you to be in the wrong and will now conquer you" is a strong argument), still, the wording used here is not accurate. Governments have been found guilty by their own courts or by "higher level" courts of groups that the states belong to, and they been forced to pay penalties to their own citizens, and sometimes even to citizens of other states. It actually happens often in the US. — Aaron, Sep 04 '19 at 13:17
@Aaron That is not the same as "prosecution", though. "Prosecution" as a term has a very specific legal meaning. Although corporations (i.e. "legal" persons) can be usually indicted for crimes, the state as a legal person is usually immune from criminal proceedings. Sure the U.S. government has often been forced to pay penalties to other parties, but that has nothing to do with prosecution. At least in the U.S. the federal government (as a legal person) is absolutely immune from criminal prosecution. — xuq01, Sep 05 '19 at 05:21
That sounds like a very semantic and legalistic defense, and this is not law.SE. However, I'm willing to accept it if true. If "The State of California" (picked at random) has been sued by someone the state police have criminally beat up, lost the suit and paid, then what do you call it if not criminally prosecuted? I'll look into it too. This could make for 1 or more decent law.SE questions; feel free to ask them if I don't get to it first. — Aaron, Sep 05 '19 at 07:06

score 1 · Answer 6 · answered Sep 02 '19 at 12:49

If they could prove that the people broke US law when making, ordering them to be dropped and dropping them, then maybe perhaps they could try to sue USA.

USA is not part to ICC so there's no recourse there either and you would need to go with what was in effect at the time. Saddams court was hardly fair though, but that's quite common when sentencing ex-dictators(which is partly why brutal dictators tend to die in office rather than retire, because they're so deep in the game).

USA would most likely to argue that at the time it was thought not to be a banned type of a weapon regardless of the effects it had later - and ultimately that they were asked to drop them by other Vietnamese people.

If USA wanted to be petty about it, they could just remind them that the winners of the Vietnam war already took properties and lives of their allies in Vietnam and that it's enough to pay for the damages caused by agent orange. Point being, the Vietnamese already had their own charade courts and executions as their revenge and those would be enough and bygones should be bygones - because neither side really wants to dig up the old cruft especially the Vietnamese as a country as there are still tens of thousands of people whose human rights were violated in the revolution alive and even more of people who are relatives of people killed without any proper court proceedings by both sides.

What I am aiming to point out here is that the current Vietnamese government has good reasons to not bring the issue up forcibly - as is often the case, neither side wants to bring up a truth movement(for Americans this is less of an issue, for the Vietnamese government it could end up as a huge issue, as America has already aired all the dirty laundry multiple times and is capable of shedding it's skin regardless).

The best approach for them(the victims) to get any sort of damage payments therefore is to just directly appeal to the American public for donations.

Can a country avoid prosecution for crimes against humanity by denying it happened?

6 Answers6