THE GENEVA CONVENTIONS AND THE PHOENIX PROGRAM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80R01720R001100060018-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 13
• Document Creation Date: December 19, 2016
• Document Release Date: October 8, 2004
• Sequence Number: 18
• Publication Date: August 30, 1971
• Content Type: MF

OFFICE OF THE ASSISTANT SECRETARY OF DEFENSE
WASHINGTON, D. C. 20301
Al A /73 f
VIETNAMESE: AFFAIRS, HEADQUARTERS, CIA
SUBJECT: The Geneva Conventions and the Phoenix Program
On 19 July 1971, Ambassador William E. Colby appeared before the House
Subcommittee on Foreign Operations and Government Information to testify
concerning CORDS operations in South Vietnam. During the hearing the
issue was raised concerning the applicability of the Geneva Conventions
to the Phoenix (PHUNG HOANG) Program. As a consequence, Ambassador Colby
was requested to furnish at a later time a legal opinion which would
address this issue and which would be incorporated as part of his testi-
mony. Subsequently, the Office of the Legal Advisor at State and the
Office of the General Counsel at Defense developed a statement that
sought to clarify the issue. A copy of this statement is being furnished
(Enclosure) because of your close and continuing interest in the Phoenix
(PHUNG HOANG) Program.
You will note that this statement represents the opinion of the Department
of State. The reason for this is keyed to a portion of the sentence
appearing at the top of page three, namely, "...and we have acknowledged
a residual responsibility with respect to those captured by US forces.''
Essentially, the point involves the position taken by State concerning
"residual responsibility." It is the Defense view that the legal rights
of persons are provided for under the terms of the Geneva Conventions,
and thus the protection of the legal rights of citizens of South Vietnam
remains the responsibility of the Government of South Vietnam. The United
States does not acquire a "residual responsibility" under the Geneva
Conventions for protecting the legal rights of South Vietnamese citizens.
Accordingly, it is not relevant to discuss the legal rights of Vietnamese
citizens within the framework of this advisory program. Other than this
point, Defense is in full agreement with the contents of this statement.
This statement may be instructive in terms of your agency's interest in
the Phoenix (PHUYG HOANG) Program. No objection is interposed if you
wish to make wi er distribution.
w-V I u L. I-HKNHAM
EncIosurePQC) E.: i
DSS CJKI ? JES
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RECORD COPY House Committee on Government Operations
OSD/ISA/VNTF Foreign Operations and Government
Room 4C840 Information Subcommittee
Hearing Transcript, 19 July 1971
Page 768, following line 2
The Geneva Conventions and the Phoenix Program
Questions have been raised and considered from time to time concerning
the conformity of the Phoenix Program with the Geneva Convention require-
ments. The following memorandum represents the opinion of the Depart-
ment of State on this question.
MEMORANDUM
The Geneva Conventions and the Phoenix Program
The four Geneva Conventionms of 1949 for the protection of war
victims updated earlier international conventions to reflect the
experiences of World War H. They filled a number of lacunae which had
become evident in the earlier conventions. The fourth Convention on pro-
tection of civilian persons in time of war was a completely new treaty-
designed to minimize, to the greatest possible extent, the suffering of
civilians caught in the turbulence of war. Bearing in mind the Nazi
practices during World War II, the drafters of the fourth Convention
sought to ensure humane treatment of civilians in belligerent and occupied
territories, and to lay down rules to prevent their being deported, taken
as hostage or interned in concentration camps. Experience since 1949 has
revealed additional lacunae in the Conventions, and international dis-
cussions are now taking place with a view to the further refinement of
humanitarian treatment of both combatants and non-combatants caught up
in armed conflict.
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Article 4 of the third Convention of 1949 on protection of
prisonersof war sets certain standards for recognition as prisoners
of war. In Vietnam, the United States and the Republic of Vietnam
have as a conscious policy accorded prisoner of war status to many
thousands of paramilitary and other prisoners captured by United States
or South Vietnamese forces who would not be entitled to it under- the
Convention. (See MACV Directive 381-46, dated 27 December 1967, copy
attached.)
Article 4 of the fourth Convention on protection of civilian persons
in time of war provides that persons protected by that Convention are
those who find themselves in the hands of a party to the conflict or
occupying power of which they are not nationals. This means that South
Vietnamese civilians detained by South Vietnamese authorities are not
protected persons within the meaning of Article 4 of the fourth Geneva
Convention. Article 4 also provides that nationals of a co-belligerent
state are not protected persons while the state of which they are
. nationals has normal diplomatic representation in the state in~whose
hands they are. This provision would seem to cast considerable doubt
on the entitlement of South Vietnamese civilians captured by United
- States forces toprotection as protected persons even while they are in
the custody of theUnited States forces. Nevertheless, the United States
and South Vietnamese Governments have agreed that humanitarian treatment
must be accorded to all persons, irrespectiveof whether an individual -
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is considered a protected person within the meani+ng of the Convention,
and we have acknowledged a residual responsibility with respect to - those
captured by US forces.
Article 3, which is common to all four of the Geneva Convent:i+ons;
prescribes the minimum standards of humanitarian treatment to be accorded
to all persons, even though they may not be "protected persons" within the
strict meaning of the Conventions. Paragraph 1(d) of this Article prohibits
"the passing of sentences and the carrying out of executions without
previous judgment pronounced by a regularly constituted cour;t,-affording.
all the judicial guarantees which are recognized-as indispensable, by
- civilized peoples." This provision applies only to sentencing for-crimes
and does not prohibit a state from interning civilians or subjecting them
to emergency detention when such measures are necessary for...the security-
or safety of the state.
The Phung Hoang, or Phoenix Program, i?s-a Vietnamese program aimed at
-the Viet Cong Infrastructure (VCI), the political. subversive apparatus-
-which directs and supports the military threat to South Vietnam'.s security:.
The United States support of this program has been principally advisory.
in nature directed at improving the intelligence-methods, the apprehension
techniques, the legal procedures and the detention arrangements involved
in the struggle of the Vietnamese against the VCI:. Persons suspec.ted..of
involvement in the VCI may be arrested by the Vietnamese-authorities and
placed in administrative detention or brought to trial.
Lion: No sort of immunity is given to anyone under this provision. There
is nothing in it to prevent a person presumed to be guilty from being
arrested and so placed in a position where he can do mo further harm; and
it leaves intact the right of the State to prosecute, sentence and punish
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The Vietnamese "An Trill, or administrative detention procedure, is
similar in'some respects to the emergency detention procedures utilized
by a number of other nations in time of emergency to intern persons on
grounds of national security. Such procedures involve no criminal
sentence and are not violative of Article 3.-9/ On the other hand,
aspects of the "An Trill procedure raise some problems which give us
concern.-in this regard.
We have been working with the Government of the Republic of Vietnam
with a view to improving the procedure to ensure the humanitarian treat-
ment of detainees. We are striving to make the "An Trill procedure
accord with fundamental concepts of due process, and to improve the
conditions of internment.
Not a part of the Phoenix Program, but sometimes discussed as in
possible conflict with the Geneva Conventions, is the subject of forced
relocations of cgmmunities. Vietnamese Government policy is currently
to bring security to the people rather than the people to security when-
ever possible, but such relocations have occured in the past and, if
deemed essential, might occur in the future. Article 49 of the Fourth
Convention, intended to deal with the transfer of protected persons from
occupied territory, clearly contemplates the possibility of transfer
inside the national territory for security reasons. Article 49, like
2/ Articles 42, 43 and 78 of the Fourth Geneva Convention clearly contem-
plate wartime internment and assigned residence for civilians as
accepted procedure under certain safeguards. Since these Articles
apply only to protected persons, their specific requirements would
not apply to South Vietnamese civilians.
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Articles 42 and 4,; concerns only protected persons. Of course, the
general obligation of humanitarian treatment would apply in the case
of any relocation of communities in South Vietnam, even though the
individuals involved are not protected persons under the fourth Conven-
in conclusion, although there have been some individual failures
in execution, the general obligation of humanitarian treatment under.-
lying the Geneva Conventions has been accepted by the Governments of
Vietnam and the United States in the context of the Vietnam conflict,
despite the anomalies created by attempting to apply rules essentially
designed for a World War II situation to one involving a political,
subversive infrastructure.
Department of State (Legal Adviser):
Concurrence
Department of Defense (General Counsel) Inf rmed (not concurrence)
Ambassador William E. Colby: Concurrence
Office or Origin: OASD/ISA/VNTF
Action Officer: LTC David E. Farnham
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IT T T11E r T. t t r? Lt T 1 C, iyr i T 7, A VIE IN, 1.1 Al':A
APO S- In Francisco . 902,22
DI iE(_'TI:VE 27 December 19G7
NUMBER 231-46 (M _CJ2 O)
MILITARY INTELLIGENCE
CL/1111 )l y ID' SC}
I AL,
F: t l ING OF D.t.'t .S .-'JN _, E S
1. PURPOS, ;. This directive provides policy guu: dance for ,tho corn-
bineci screcnil or t tine >, a IJ7' required, of )C the activation, as s. Colli
tined Tactical Screening Centers ?(CTSC).
2. GI' ?ERALL.
a. The forces Rile t capture or detain suspect personnel ar
re- for the prompt screening and classification of det,. inees.
b. Criteria for determination of status and classification of dc:-
taine 's is contained in paragraphs 3 and 4 of Annex A.
c. Disposition of detained pars onnel. ;vho have been classi. 7c.c1 11
be made in c ccorclance with paragraph 5 of Annex A.
d. Close coorci'Ination b^t-veen the c pturin; forces, civil ther-
itieSy and military police units is essential to accompli h the sc C:t?ni n;
classification, and disposition of Lilo detained personnel.
3. -APPLICABILITY.
This dire cti~ e app1i-es to all US forces and i{ ti'i'r1!i. F
attached, or under operational control of T 2,cV' .
b. CTSC are to be activate? on an fra S needoCI`I basis in con-
]linction with combined operations, to Olltin:.'. e the screening of detained; per..
Sons. Deactivation will occur as scron as the tactic ragcd in combat or a belligerent act under arms other than an act of terro;?-
ism, sabotage, or spying.
b. Detainees will be classified as Non-Prisoners of War when
determined to be one of the following categories:
(1) Civil Defenca.nts.
(a) A detainee who is not entitled to PTV status but is
subject to trial by GVN for offenses a.gainst GW law.
(b) A detai
?
~
nee z
w
ho is a member of one of the units listed
in paz agn.'ap17 3d, above, a110, who was tlctaineci while not engaged in actual
combat or a bell.iggerent act under arms, and there is no proo at
f t the de-
tainee'ever particip ,tee? in actual combat or belligerent" act under arms.
(c) A detainee who is suspected of being a spy, saboteur
or terrorist.
Page 2 of Annex, A
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(2) Ile tur'iees (Hoi Chanh), All, persons I'eg'ardless of p:? ,;t
membership in any of the units listed in paragraph 3, above, who voluntarily
submit to G VN control.
(3) Innocent Civilians. Persons not members of any units
listed in paragraph 3, above, and not suspected of being civil defendants.
5. D-1-S-STTI0i\T OF C LA SS'F D TD E TAINEES.
a. Detainees who have been classified will be processed as
follows;
(1) US captured ?~~',r's and those PW`S turned over to the U'S
by .1V!vMAF will be retained in US l ilitary channels until transferred tore
ARVN PW Camp.
(2) Non-Prisoners of I'var who are suspected as civil defen-
dants will be released to the appropriate GVN civil autIlo_iLies
.
(3) Non-Prisoners of War who qualify as returnees will be
transferred to the appropriate Chicu Hoi Center.
(4) Non-Prisoners of War determined to be innocent civil-
falls will be released and returned to the place of capture.
b. Responsibilities and procedures for evacuation and accounting
for PWTs are pr escr-ibed in MACV Directive 190-3 arid USE',-RV Regulation
190-2.
t 111 .>
A
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