Foreign Relations of the United States, 1964–1968, Volume III, Vietnam, June–December 1965

173. Telegram From the Embassy in Vietnam to the Department of State¹

Saigon, October 20, 1965, 4:40 p.m.

1360. Dept repeat as desired. Ref: Depcirtel 630.²

1. Following are Mission comments on idea of protecting power for US prisoners in NVN under Geneva Conventions of 1949.

2. As Dept is aware we have long been dubious of significant practical benefits which can reasonably be expected in terms of improved treatment for US prisoners from any of series of legal or propaganda gambits which have been suggested or attempted recently. Dept has under consideration our recommendations for more belligerent measures to improve prisoners’ lot.³ We continue to believe that self-interest is only motive governing Hanoi treatment of our prisoners and that normal compunctions of relatively civilized govts do not apply, nor does decent respect for opinion of mankind. It is possible, however, that Hanoi regime does value favorable attitudes of some segments of foreign opinion sufficiently to take their sensitivities into account in weighing best use to make of prisoners. We have in mind here especially Japanese and some other Asian opinion. Thus, for instance, if Hanoi were convinced that Japanese left-wingers would be more upset by execution of U.S. prisoners following sham war-crimes trials than by horrors suffered by NVN civil populace they would be accused during such trials of having caused, then NVN might take this factor into account, along with others, in deciding whether to execute prisoners or not. Thus, our legal and moral leverage through the exercise of public opinion is extremely limited, though there are some points at which we can bring it to bear.

3. The above considerations are relevant to subject at hand for two reasons: we should not expect too much from this proposal, and we should recognize that proposal is essentially an attempt to marshal international public opinion to protect welfare of our prisoners.

4. We think it likely that if request for acceptance of protecting power is advanced by U.S., Hanoi will reject request and will also reject request for assumption by ICRC of role of protecting power. Hanoi has refused to respond substantively to ICRC question about whether it is willing to apply Geneva Conventions to present conflict, and it therefore presumably regards itself as not bound by their provisions. Admittedly, its position is equivocal and inconsistent, since it has cited one of its reservations to Geneva Conventions in laying groundwork for possible trial of U.S. prisoners as war criminals, and has accused U.S. of violating Conventions in our bombings. Nevertheless, we strongly believe that Hanoi regime does not want a third country acting in interests of U.S. nor an international body such as ICRC traveling about NVN visiting prisoners, etc., as required by Conventions. Furthermore, we do not believe Hanoi will want to set any embarrassing precedents for their Front stooges and the VC in accepting applicability of Geneva Conventions.

5. Having said the above, we agree with Dept. that there may be some advantages in propaganda field to be gained from proposal. We should bear in mind our propaganda objectives in making our request and in subsequent steps. First three specific advantages cited in para 3 of reftel presuppose Hanoi’s agreeing to protecting power or ICRC, so fourth advantage is one we should be prepared to hammer home.⁴ One other advantage of course would be that ICRC would be given another project to work on besides alleged U.S. and GVN shortcomings in application Geneva Conventions and it would set record a little straighter on which side trying to act humanely in this conflict. Another advantage would be improvement in our posture with U.S. public and Congress to show that we are doing everything possible, regardless of seeming futility, to try to improve welfare and safety of U.S. prisoners. For same reason it would have a helpful effect on morale of U.S. pilots engaged in NVN missions.

6. We likewise do not see serious disadvantages in proposal, since it is even more unlikely NVN would request protecting power in SVN, as they do not admit having forces in conflict or legitimacy of GVN. Such an eventuality might be embarrassing for GVN and ourselves until handling of prisoners has improved (it is continuing to get better daily and most problems are of administrative nature) and would presumably also afford fine propaganda opportunities for Communists. Should Front call for a protecting power (which we also think unlikely), we might be faced with public opinion problem ourselves in refusing to permit one. This would however open way for us to demand protecting power (perhaps same one as in NVN) for prisoners held by VC.

7. With reference to last sentence para 5 reftel,⁵ we note USSR and other Communist states expressed reservation limiting application second paragraph Article 10, and wonder whether DRV also did so when it adhered to Conventions (our files are incomplete).

8. Subsequent paragraphs are concerned with which protecting power we should choose. As Dept aware UK assumed protection of U.S. interests and custody of U.S. property when we closed Hanoi Consulate in December, 1955 and UK continues to function in that capacity. Why would continuance that role on behalf U.S. prisoners raise recognition issue more than it already has been? Since UK is already our “protecting power,” in one sense, perhaps British could simply notify Hanoi they had been asked expand that role to cover U.S. prisoners and see when Hanoi responds.

9. We have expended great efforts to persuade Morocco and Senegal not to send reps to Hanoi. Is it worthwhile suggesting they do so now, especially since we doubt DRV would let them subsequently adopt protective power role? Rabat and Dakar of course have better feel for effects of our switch in position on local attitudes.

10. Could ICC be asked to take over this role? Article 10 seems to refer to such possibilities. Even if such were possible, however, we doubt wisdom of involving ICC in this question and do not think they would wish to enter into it. Nevertheless, there may be advantages to such idea which we here do not know about.

11. Bearing in mind propaganda aspects of this proposal, what would be pros and cons of requesting Czechs or Rumanians to be our protecting power, after Hanoi had rejected other choices? Do Eastern European regimes feel themselves now under sufficiently greater moral restraint to warrant our choosing a relatively unfriendly and Communist state to look after our prisoners? Hanoi would surely find it harder to refuse bloc country as protecting power, and if they did, propaganda gains for U.S. would be even greater. If contrary to expectations, Hanoi accepted them, bloc protecting power presumably would be better than none.

12. We doubt very much that GVN would request a protecting power for their own troops held by VC (so far as we know none are held by NVN) since problems of recognition would be raised.

13. Finally we wish to note that none of above affects prisoners held by VC. They are the ones who suffer greatest hardships and the three prisoners who have been executed in reprisals were murdered by the VC.

Lodge

1. Source: Department of State, Central Files, POL 27-7 VIET. Secret. Repeated to CINCPAC for POLAD.
2. In circular telegram 630, October 20, the Department suggested that, in light of the increasing number of U.S. personnel in North Vietnamese hands, the question of appointing a protecting power capable of assuming the rights and responsibilities under the Geneva Convention on Prisoners of War of 1949 should be urgently explored. (Ibid.)
3. See footnote 2, Document 167.
4. In this paragraph of circular telegram 630, the Department enumerated three advantages of applying the Geneva Convention on Prisoners of War. The first was its provisions requiring due process of judicial proceedings (and exposing reprisals masquerading as war crime punishment); the second was 35 specific articles in the convention defining the role of the protecting power vis-a-vis POWs; and the third was the fact that the protecting power’s role supplemented and complemented the ICRC. A fourth advantage would be a propaganda one accruing from the refusal of North Vietnam to accept a protecting power and casting itself in a bad light in world opinion. (Department of State, Central Files,POL 27-7 VIET)
5. In paragraph 5, the Department noted that since the NLF was not recognized and North Vietnam denied its forces were in South Vietnam, there was no question of their requesting a protecting power for their prisoners. However this did not mean that prisoners held by the GVN should not have a protecting power appointed. As the last sentence in paragraph 5 indicated: “Second paragraph Article 10 GPW [Geneva Prisoner of War treaty] requires Detaining Power (GVN) to appoint neutral state or impartial organization to fufill this function, if Hanoi fails to take action in this regard.”(Ibid.)