Is it murder?

The episode of Burn's and Novik's documentary on the Vietnam War prominently featured the prize winning photo and film footage of Nguyễn Ngọc Loan, head of the South Vietnamese National Police shooting Nguyễn Văn Lém in the head, in the streets of Saigon, with a revolver, during the 1968 Tet Offensive.  The podcast that came about on the topic of the documentary (it wasn't part of the documentary, it's oddly a podcast about each episode of the documentary, very prominently featured the same thing.

In the podcast, the shooting is repeatedly referred to as a "murder".

Was it.

First some background.

As noted Nguyễn Ngọc Loan was the head of the South Vietnamese National Police.  He was not, as the speakers in the podcast incorrectly stated (and I can't recall what the documentary stated) an army officer.  He had been, but at the time of the shooting he was the head of the police.

Nguyễn Văn Lém was what we'd normally refer to now, and was occasionally referred to then, a terrorist.  He was in handcuffs and under arrest as he'd been detained after his actions in the offensive.  Head of a small unit, Lém had eariler captured ARVN Lieutenant Colonel Nguyen Tuan and his family and attempted to force the Colonel to show them how to drive tanks.   Lieutenant Colonel Tuan refused.  Lém killed then killed Col. Tuan, his wife, six children and his eighty year-old mother by cutting their throats.  There was one survivor, a seriously injured ten year old boy.

So, quite frankly, Lém was a real bastard.  A bastard, we'd note, of the Communist true believer type from all over the globe for whom such actions were not uncommon.  And things like this were not uncommon during Tet.

So, getting back to Loan, was his shooting of Lém a murder, or something else?

That may be trickier to determine that a person might suppose.

Let's start with this.  What's murder?

Every human community on earth recognizes that there's such a thing as murder and that its one of the most horrible of crimes.  But nearly every human community also recognizes that not every instance of one human killing another is murder.  Rather, generally, most societies of all types hold that killing another human being without an extreme justification is murder.  Killings in self defense are not murder.  Killing in defense of others, which extends out, commonly, to how we view actions by the police and the ultimately the military, are not murder.  Most people agree on that much.

Beyond that, there's other instances of humans killing other humans that are not generally regarded as murder, but they get trickier.

Actually, it's not even beyond that. We mentioned policemen and soldiers, but let's break that down.

That policemen are authorized to use deadly force in their work is not doubted by anyone, but where that line is drawn is not agreed upon and never has been.  In some societies (and this is something directly relevant to what we are discussing here) police use of deadly force has been regarded as very wide indeed, although not usually to the level of summary execution. . . always.

Under the Common Law, at one time, the police in Common Law jurisdictions were regarded as authorized to use deadly force to apprehend a suspected felon up until he was apprehended.  That's where the old line that we used to shout when we played police as kids, "Stop in the name of the law" came from.  If you didn't stop, back in the day, a policeman could shoot you.  There were no investigations or anything much that happened.  That's the way it was. Fleeing from the law is still regarded as evidence of guilt (a questionable proposition).  Not all that long ago that presumption went pretty far in what it authorized.

Indeed in some regions of our own country the use of deadly force against suspected criminals was regarded as so proper that there was a common assumption that the police need not really bring a suspect in alive. In the American West it was truly the case that sheriffs and marshals shooting suspects in the sticks was pretty accepted.  This generally applied to average citizens as well who were generally regarded as authorized to act on what everyone knew to be against the law.  Indeed, a sheriff in North Dakota openly questioned Theodore Roosevelt as to why he simply had not shot some suspects he chased down over a long distance who had stolen a boat.  It seemed odd to the sheriff, and it would have seemed odd to most residents of the west at the time.  Hanging thieves and murderers, even by civilians, was seen as perfectly legitimate and an extension of the proper enforcement of the law.  The scene from Lonesome Dove in which cowhands hang murderers is pretty much spot on.  People didn't worry that much about taking people to the law and they felt authorized to simply "carry it out".  A much different concept of the law, to be sure.

Carrying on, even now in some regions of the world the police can go very far in using deadly force and not be regarded as acting outside of the law.  A friend of mine who was in the Navy in the 1970s recounted being on leave in a Caribbean nation when a fellow sailor had his wallet lifted.  They ran to a nearby traffic policeman and pointed otu a fleeing man they knew to have taken it.  The officer unholstered his pistol, shot the fleeing man, and gave them the wallet back.

We'd regard this as a shocking violation of the law and murder.  There, he was simply acting as a policeman.  The old Common Law in full force.

Indeed, beyond the Common Law, there's the "old law" we've spoken of before.  Restraint on the use of deadly force in revenge or self protection or out of a sense of justice is a societal restraint.  While all people everywhere recognize murder, most cultures at one time sanctioned a lot of violence and most people still sympathize with a type of it that's well beyond what the law allows.  There are a lot of movies on this topic in the Western World where restraints on official killings are the highest.  In spite of that, the man or woman acting in revenge who takes life outside of the confines of the law remain popular.

More on all of this in a moment.  Let's talk about soldiers in war first.

There's sort of a general concept out there that any killing in war is legitimate, but it isn't.  Indeed, since World War Two it is in fact the case that people all over the world have tolerated less and less deadly violence in war.  Wartime never authorized wholesale slaughter, although there's been plenty of it.  As early as the aftermath of World War One there were war crime trials and during the war itself the the Germans were rightly condemned for their murderous actions against Belgian and French civilians.  Some have noted how this played into Allied propaganda, but the fact of the matter is that the Germans during the Great War already foreshadowed what they'd do in the Second World War and were condemned for it.  Soldiers are not to kill civilians. Nor are they to kill Prisoners of War.

Not that don't both happen and the latter, in fact, has often been tolerated.  Indeed in various ages it was highly tolerated.  An order to give "no quarter", i.e., don't bother with taking prisoners, was at one time regarded as a legitimate order for various reasons, often because the battle had become too much of a mess to sort out friend from foe quickly.  At least since some point in the 19th Century, however, such orders have not been regarded as legitimate, and indeed have been regarded as illegal.  That doesn't mean that they haven't been given or suggested.

For Americans, a lot of struggle over such suggestions came about during the later stages of the Indians Wars, by which time most Americans did not regard them as legitimate.  By that point they'd frankly stopped, although tragically the battle that such things are most associated with, mistakenly, occurred in that period, Wounded Knee.  Wounded Knee was more of a general mess than people suppose and less of a real massacre.  Real massacres did occur however, particularly prior to the 1870s and often not by Federal troops but mustered militia. Bear River in Idaho and Sand Creek in Colorado are good example of real unformed massacres by men marching under the Stars and Stripes.  The latter is a particularly heinous example.

By the Philippine Insurrection Americans were no longer willing to tolerate it and the one example some agitated people mention today, inaccurately attributing it to Pershing who had nothing to do with it, is an example of one commander authorizing very broad deadly force. That resulted in an investigation which was aimed towards a prosecution but that did not occur as the sufficient evidence could not be gathered. That did stop such actions in the prosecution of that war, however.

The shooting of prisoners again arose, although not in the public eye, as a feature of World War Two even with the American military. It's still a topic that isn't addressed much, but generally what occurred is that there were instances in which certain units simply stopped taking prisoners or mostly stopped.  In Europe this tended to to occur, on a very limited basis, where those units had suffered from the same conduct by the Germans. As a reprisal, they stopped.  In the Pacific, however, it was very widespread.  Taking Japanese prisoners was dangerous anyhow and the war in the Pacific degenerated to some extent to one with heavy racist overtones.  Not many Japanese soldiers attempted to surrender but a lot of Americans weren't very interested in taking Japanese prisoners anyhow.

In Vietnam something like that occurred, but on a much more limited scale.  As this became known it became widely circulated in the American press and after the My Lai massacre it became very widely know.  "Search and Destroy" missions and the like tainted the American military for years in the minds of the American public even though most US troops never served in units that either conducted them or committed any atrocities.  None the less, some atrocities did occur.

Which gets back to what is considered legitimate in war. Atrocities never are, but conduct towards prisoners and even combatants has varied widely. At one time, an order of "no quarter" was regarded as legitimate.  It certainly isn't now.  The French were regarded as barbarous at Amiens for raiding the English rear and killing the boys in the train, a truly hideous act.  The Welsh in the same battle killed a lot of French downed chivalry, which was regarded as bad monetary practice.  Standards haven't been always exactly the same.

So what does that all have to do with Nguyễn Ngọc Loan and Nguyễn Văn Lém?

Well, maybe more than we think.

Both Vietnamese sides took prisoners during the Vietnam War but the north uniformly treated them horribly.  NVA treatment of prisoners was based on the Communist concept that anyone fighting a Communist nation is guilty of a crime. The Soviets treated German prisoners of war the same way during World War Two (the Nazi treatment of Soviet prisoners was more purely genocidal).  The NVA treatment of prisoners was itself criminal. And when their fortunes appeared good they were not above mass execution of civilians.  The ARVN may not have been sweethearts towards prisoners they took, but htey were much better and there was always an official policy of trying to convert prisoners to the Southern cause.

Of course, not all prisoners were uniformed by any means, which creates the classic franc tireur problem.  For years it was regarded as perfectly legitimate to execute, on the spot, men bearing arms but not wearing uniforms.  Nations complained about it, but it was regarded as legitimate.  And execution of men captured wearing your uniforms against you also routinely resorted in execution. The United States in fact did this during World War Two when it captured Germans wearing American uniforms.  Military Police shot them.  No trial, just execution.  Nobody has ever suggested at any time that the US was acting improperly in doing that.

So, where does that leave us.

Well, I don't know .

I have to presume that the Republic of Vietnam had some sort of judicial code that prevented the execution of suspects.

I know that the Republic of Vietnam, with American assistance, was carrying out a program of assassination of suspected Communist agents in the countryside, which seems to be much the same thing.

What the actual standard in the country was is hard to know, particularly given the level of corruption that was common in South Vietnam.

So, was the killing of Nguyễn Văn Lém an extra judicial police murder or simply a rare filmed example of common South Vietnamese justice in action?  Or was it a battlefield execution of a franc tireur, if that practice was still regarded as legitimate by the Republic of Vietnam.

Did South Vietnam have an official death penalty for murder?  Most nations have had one at some time. Indeed most nations have had one that applied more broadly than murder, to be sure.  That has generally not been regarded as illegitimate for true crimes.  But it's also generally been regarded as requiring a real fair trial as well.

No trial here.

So was this, then murder?

That's hard to know.  It was probably technically at least a crime and that crime was murder (although the author of the Wikipedia article on Loan argues that it was not technically illegal).  And it was horrible.  But Lem had done something horrible. But that doesn't sanction a horrible extra judicial murder.  But maybe that was official justice in South Vietnam.

Indeed, in the rough justice sense, the photographer who took the famous still photograph came to deeply regret it.  He later stated about the photograph:

The general killed the Viet Cong; I killed the general with my camera. Still photographs are the most powerful weapon in the world. People believe them, but photographs do lie, even without manipulation. They are only half-truths. What the photograph didn't say was, "What would you do if you were the general at that time and place on that hot day, and you caught the so-called bad guy after he blew away one, two or three American soldiers?

He, Eddie Adams, later went even further, and apologized to Loan for the photograph.  Upon Loan's death at age 67, Adams stated:

The guy was a hero. America should be crying. I just hate to see him go this way, without people knowing anything about him.

No answers.  Just a lot of awful questions.

None of which even begin to approach the question of whether such actions are moral.  I would say clearly not, but my view may be in the minority on a lot of the questions I've raised.