The application of the Geneva Conventions of 12 August 1949 to captives in the Vietnam War was complicated by the perplexing legal nature of that conflict. In the classic sense, the conventions presume a declared state of war between two or more sovereign states, each fielding a regular army fighting on a readily identifiable battlefront. Virtually none of these classic conditions existed in the Vietnam conflict.

        The United States recognized the sovereignty of South Vietnam, as did some eighty-seven other nations. Indeed, South Vietnam is a member of several special committees of the United Nations, and would have been a member of the United Nations itself had it not been for a Soviet veto in 1957.

        The United States had not accorded full diplomatic recognition to North Vietnam, as had some twenty-seven other states. However, the United States did acknowledged North Vietnam's agreement to the Geneva Conventions of 1949, and it treated North Vietnam as a separate state in the context of Article 12 of the Geneva Prisoner of War Conventions.

        The battlefield was nowhere and everywhere, with no identifiable front lines, and no safe rear areas. Fighting occurred over the length and breadth of South Vietnam, on the seas, into Laos and Cambodia, and in the air over North Vietnam. It involved combatants and civilians from a dozen different nations.

         Politically, militarily, and in terms of international law, the Vietnam conflict posed problems of deep complexity. The inherent difficulty of attempting to apply traditional principles of international law to such a legally confusing conflict is well illustrated by the issue of prisoners of war.

        As combat units of the United States became heavily engaged in the war in 1965, the question arose as to the proper disposition for battlefield captives and others detained by U.S. units during military operations. In 1965 the United States determined to turn over to the Vietnamese armed forces all individuals captured by U.S. forces. Such an arrangement is permissible under the Geneva Prisoner of War Conventions, which provide for the capturing power to release prisoners to a detaining power as long as both the capturing and the detaining powers fulfill certain obligations concerning the welfare of the prisoners.

        While the legal basis for a transfer of prisoners was sound, carrying out the transfer was beset by serious legal and practical difficulties. The Republic of Vietnam regarded the Viet Cong as criminals who violated the security laws of South Vietnam and who consequently were subject to trial for their crimes. As indigenous offenders, the Viet Cong did not technically merit prisoner of war status, although they were entitled to humane treatment under Article 3, Geneva Prisoner of War Conventions. Under Article 12, the United States retained responsibility for treatment of its captives in accordance with the Geneva Conventions even after transfer of the captives to the South Vietnamese. At the same time, the United States was concerned that Americans held captive in North and South Vietnam receive humane treatment and be accorded the full benefits and protection of prisoners of war.

        In the south, where the government of South Vietnam had tried and publicly executed some Viet Cong agents, there had been retributory executions of Americans by the Viet Cong.

        In the north, the Hanoi government stated that it would treat captured American flyers humanely, but it would not accord them prisoner of war status as they were "pirates" engaged in unprovoked attacks on North Vietnam. Hanoi repeatedly threatened to try United States pilots in accordance with Vietnamese laws, but never carried out this threat.

        U.S. policy was for the United States to do all in its power to alleviate the plight of American prisoners. It was expected that efforts by the United States to ensure humane treatment for Viet Cong and North Vietnamese Army captives would bring reciprocal benefits for American captives.

        Early in the war there had been some question in the United States command as to whether the struggle against the Viet Cong constituted an armed international conflict as contemplated in Article 2, Geneva Prisoner of War Conventions, or a conflict not of international nature, to which Article 3 would be applicable.

        With the infusion of large numbers of United States and North Vietnamese combat units and the coming of the Korean, Australian, Thai, and New Zealand contingents of the Free World Military Assistance Forces, any practical doubts as to the international nature of the conflict were resolved. Although North Vietnam made a strong argument that the conflict in Vietnam was essentially an internal domestic struggle, the official position of the United States, stated as early as 1965, and repeated consistently thereafter, was that the hostilities constituted an armed international conflict, that North Vietnam was a belligerent, that the Viet Cong were agents of the government of North Vietnam, and that the Geneva Conventions applied in full. This view was urged upon the government of South Vietnam, which acceded reluctantly, but subsequently came out in full support of the conventions.

        Lack of physical space was but one of many serious problems. An important factor in the operations of the jails and prisons was simply the cost of feeding the prisoners. At an average allowance of 14 piasters (100) per prisoner per day, the monthly cost by early 1966 ran to about ten and a half million piasters a month. Confinement authorities complained of chronic difficulty in feeding the large number of prisoners they were required to care for, and the jailer in one province was understandably reluctant to accept and feed prisoners from other provinces. Again, the result was that many prisoners were released after a short time simply because they could not be fed.

        Confinement facilities were also handicapped by a severe shortage of qualified administrative and security officers. As an illustration, in 1965 at the Tam Hiep prison there were 30 guards for all shifts and 50 other personnel to control and train almost 1,000 prisoners. In 1966 at Nha Trang Province jail there were 26 guards and 1 instructor for about 440 prisoners. The situation was further aggravated by the frequent loss of guards, jailers, wardens, and instructors who were drafted into the military. This manpower shortage not only thwarted any meaningful classification and rehabilitation program for the prisoners, but also seriously threatened the security of jails and prisons, which were prime Viet Cong targets as long as they held Viet Cong prisoners.

        In terms of the war effort, probably the most serious shortcoming of the prisons was the fact that common criminals, Viet Cong suspects, prisoners of war, and even juvenile delinquents were all mixed together. This enabled Viet Cong agents to foment resentment against the government of the Republic of Vietnam and to proselitize their fellow prisoners; it also increased a Viet Cong's chance for early release as part of the normal inflow-outflow of the prison population.

1- A prisoner of war camp construction program.

2- A broadening of the prisoner of war concept beyond the terms of Article 4 of the Geneva Prisoner of War Conventions so as to include more Viet Cong in the prisoner of war category.

3- The establishment by the Vietnamese government of re-education centers to separate and rehabilitate suspects who either did not qualify for prisoner of war status or were to be brought before a criminal court as civilian defendants.

        In August 1965 the U.S. government and the Vietnamese government notified the International Committee of the Red Cross that their armed forces were abiding by and would continue to abide by the Geneva Conventions.

        In September a Vietnamese-U.S. joint military committee was appointed to work out details on the application of the Geneva Prisoner of War Conventions in Vietnam.

        By October the committee had issued three-by-five-inch cards and other training aids for the troops, explaining prisoner of war treatment under the Geneva Conventions. A program of instruction for all U.S. and Vietnamese military units was established to teach the basic rules to be applied in the handling of prisoners. U.S. units and advisers were instructed to identify and record all captives turned over to the Vietnamese, specifying to whom the captives were transferred.

        Vietnamese military legal advisers were briefed by the MACV Staff judge Advocate on the legal aspects of applying the conventions. The Commander, U.S. Military Assistance Command, Vietnam, established a policy that all suspected Viet Cong captives taken by U.S. forces were to be treated initially as prisoners of war by the capturing unit. Capturing units were responsible for all of the enemy taken prisoner during the course of operations, from the time of their capture to the time the prisoners were released to Vietnamese authorities.

Prisoners of war were sent to prisoner of war camps.

Innocent civilians were released and returned to the place of capture, if possible.

Civilian defendants were turned over to Vietnamese civil authorities or the province security committee.

Former Viet Cong seeking amnesty under the Chieu Hoi (Open Arms) program were sent to the Chieu Hoi center. Chieu Hoi was an amnesty program established by the Vietnamese government to encourage Viet Cong to return to government control.

        The classification of Viet Cong combatants and Viet Cong suspects posed an interesting legal problem. Because it believed the Viet Cong were traitors and criminals, the Vietnam government was reluctant to accord prisoner of war status to Viet Cong captives. Furthermore it was certainly arguable that many Viet Cong did not meet the criteria of guerrillas entitled to prisoner of war status under Article 4, Geneva Prisoner of War Conventions. However, civil incarceration and criminal trial of the great number of Viet Cong was too much for the civil resources at hand. In addition, Article 22 prohibited the mingling of civil defendants with prisoners of war. By broadly construing Article 4, so as to accord full prisoner of war status to Viet Cong Main Force and Local Force troops, as well as regular North Vietnamese Army troops, any Viet Cong taken in combat would be detained for a prisoner of war camp rather than a civilian jail.

        The MACV policy was that all combatants captured during military operations were to be accorded prisoner of war status, irrespective of the type of unit to which they belonged. Terrorists, spies, and saboteurs were excluded from consideration as prisoners of war. Suspected Viet Cong captured under circumstances not warranting their treatment as prisoners of war were handled as civilian defendants. MACV policy concerning the classification and treatment of prisoners of war was first codified in MACV Directive 381-11, dated 5 March 1966.