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

Question

I found this article and what I read 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?

Answer 1

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.

Answer 2

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.

Answer 3

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.

Answer 4

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.

Answer 5

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).

Answer 6

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.