Was the U.S. intervention in Vietnam legal under International Law?

Vietnam: Retrospective Part 5 of 8

IN THE BEGINNING the communist incursion into the south was disorganized. Weapons and supplies, but little else, were contributed from the Soviets via North Vietnam. However, Ho Chi Minh was too busy consolidating his hold on the north to give much attention to the south. When he did, the United States took notice.

Vietnamese celebrate defeat of French at Dien Ben Phu and their independence (click to enlarge)

Some argue that the American intervention into Vietnam began long before it became independent of France. I cannot find any evidence of this. Indeed, France and America have long had a quarrelsome relationship. Although France aided the American colonies in their fight for independence from England, the rift was clearly evident as soon as that revolution ended. The Founding Fathers were fairly evenly split in their attitudes to France and adamant in their positions.

Truman certainly never evidenced any great love for the French. It is rumored that he directed the newly formed CIA to secretly assist the Viet Minh and the French were most upset when they discovered this. The resulting flap was but one more grievance that ultimately led De Gaulle to chase NATO out of his country.

There were many among the Viet Minh who fought for freedom from colonial rule, and who did not want to trade French masters for Soviet ones. They formed a government in the south of Vietnam led by Ngo Dinh Diem. It was an unfortunate choice. 

Diem meeting with President Eisenhower (click to enlarge)

Diem was culturally segregated from the majority of South Vietnamese in all but one critical measure. He was adamantly anti-communist like the majority of peasants, especially those who fled North Vietnam following the communist takeover there. However, he was a practicing Catholic whereas the majority of the population in the south were Buddhist. Also, Diem was descended from privileged classes whereas the majority in the south were agrarian peasants. These differences caused a rupture between Diem and his people that greatly interfered with the south’s ability to resist the communist incursion. Diem had to be replaced and, with alleged support from the American CIA, he was replaced by Duong Van Minh, the first of a succession of military leaders.

American diplomats worked feverishly though unsuccessfully, to establish a popular civilian rule in South Vietnam. The unrelenting pressures of a communist invasion from the north made this impossible.

The Americans began patrolling the South China Sea when it became evident that the Soviets were shipping vast supplies of war materials through Haiphong harbor in North Vietnam. It was obvious that the newly minted Viet Cong, led from North Vietnam, were preparing to mount a major offensive. It was clear that South Vietnam was going to be hard pressed to defend itself unless something was done. The American excuse to act was delivered by North Vietnamese naval vessels that attacked American warships in international waters.

Anti-war protesters long argued that the attack on one of the American warships, the destroyer Maddox, was a hoax. The problem for them is that such an attack legitimized American involvement.

Under international law, an attack on a vessel is an attack on the nation under which that vessel is flagged, and is a casus belli - a cause for war. In other words, an American warship is a floating extension of the nation. Attacking it is the same as attacking Cleveland.

Artists rendering of USS Maddox under attack by North Vietnamese fast torpedo boats (click to enlarge)

The USS Maddox (DD-731) was an American destroyer attacked by high speed North Vietnamese torpedo boats while on an intelligence gathering mission in International Waters. The Maddox received air support from warplanes launched off the aircraft carrier USS Kitty Hawk, and suffered no significant damage while the North Vietnamese boats were severely damaged and repelled. 

A second American destroyer, the USS Turner Joy, joined the Maddox and the patrol was continued. The jittery crews misread radar and sonar signals, and the two ships began maneuvering and firing on phantom attackers. These incidents, one real and one imagined, led to the Gulf of Tonkin resolution.

“Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repeal [sic] any armed attack against the forces of the United States and to prevent any further aggression.” – Gulf of Tonkin Resolution, August 7, 1964

President Johnson signs Gulf of Tonkin Resolution (click to enlarge)

Yes, the Gulf of Tonkin resolution was flawed – repealed should have been repelled. Beyond that, the antiwar movement argued, it should never have passed Congress.

Politicians recognize that popular support for a war is just as important as a nation's armed forces. Without it, they cannot sustain the strategic support needed to wage war. Fearing that the general population will not be able to grasp the complexities of diplomacy, they fashion slogans and sound bites that will inspire the public. 

I was about to begin my last year of law school when the Gulf of Tonkin Resolution was passed by Congress and President Johnson ordered the mining of Haiphong harbor as well as strategic air strikes against North Vietnamese military installations. Our involvement escalated from that time and I was determined to enlist. As a sailor and Coast Guard certified operator of vessels, I endeavored to become an officer in the U.S. Navy, but they were slow in responding to my application. Thus, I entered the Army on March 3, 1966, approximately nine months after my graduation. I enlisted to fight the global communist threat. I did not march to war with “Remember the Maddox” on my lips. Indeed, I never heard those words uttered.

America has a long history of phantom attacks that led to war. “Remember the Maine” inspired Americans to go to war with Spain. The USS Maine, an American battleship anchored in Havana harbor, was purportedly sunk by the Spanish without provocation – in fact, it was destroyed by an explosion resulting from the accumulation of gases in its coal bunkers. Most recently, America invaded Iraq in search of phantom Weapons of Mass Destruction (WMD) – though none were ever found. The vilification of President Bush for purportedly lying about WMD in Iraq to justify that war is reminiscent of the vilification of President Roosevelt for purportedly engineering the attack on Pearl Harbor as an excuse to drag the United States into World War II.

President Roosevelt declares war in joint session of Congress (click to enlarge)

President Roosevelt had a problem. He had promised Americans that they would not be drawn into another European entanglement. They were sick of the costs in lives and treasures lost in the previous debacle – World War I. However, Roosevelt and his advisers saw the peril in allowing Nazi Germany to complete its conquest of Europe – America would certainly be next in Hitler's sights. The Japanese attack on Pearl Harbor was not sufficient reason for the United States to declare war on Germany, but it was a godsend to those who saw the dangers of American isolationism. It inspired the nation to war.

Ultimately, Roosevelt led us to war in Europe because he decided that the vital interests of America were threatened there. Johnson led us to war in Vietnam for the same reason. No, North Vietnam did not threaten us directly – rather, as a client state of the Soviet Union, it threatened to help spread communism and shrink the free world. Engaging the communists in southeast Asia was a logical extension of the Truman Doctrine of Containment of Communism.

Containment never worked. So long as Stalin's dreams of world domination were allowed to play out unopposed, it was able to seep across borders – thus, the foundation of the Domino Theory. Indeed, the war in Vietnam was America's last attempt at containment. President Nixon replaced it with Detente wherein the Soviets and the Free World would attempt to get along like any two sensible rattlesnakes stuck in the same burlap bag.

Containment failed in Vietnam for one reason only – lack of will. The American people gave up on the effort. The antiwar movement won the day and the communists won the territory even though they had lost the war. Thus, this loss may be directly attributable to the failure of Johnson to craft a better slogan to inspire the general populace. As I said, I never heard “Remember the Maddox,” and few in America heard the clarion call to battle. The Gulf of Tonkin resolution had a flaw that the antiwar movement picked at like a sore until it burst and the will to fight deflated.