Deal Weighed in Korean War Slaying Probe

Pentagon officials probing the alleged massacre of civilians during the Korean War are considering granting an unprecedented blanket immunity for all Americans connected to an incident that witnesses say left hundreds of Koreans dead.

By encouraging witness cooperation, an immunity grant would presumably help the government assemble the fullest record of what happened in the South Korean hamlet of No Gun Ri. It also would address veterans groups’ objections that it would be unfair to punish aging veterans for an incident that occurred half a century ago.

But the immunity move could attract criticism if the investigation ultimately turns up evidence of egregious crimes committed by GIs, some legal experts said.

With Pentagon officials just beginning to organize a broad investigation that may last a year or more, “this is the most important question, at the moment,” one official said. A second official said he believes that the government is leaning toward blanket immunity but emphasized that discussions are at an early stage and that the legal issues are tangled. Both officials spoke on condition of anonymity.

Military justice experts say that, based on past cases, the grant would probably require the approval of the Army secretary but could also come from the secretary of Defense.

The investigation has acquired enormous diplomatic sensitivity since news stories last month provided vivid accounts from survivors and veterans of how American soldiers wiped out hundreds of civilians during the chaotic opening weeks of the Korean War.

American veterans now in their 70s told how, between July 26 and July 29, 1950, they were ordered to fire on South Koreans huddled under a concrete bridge near No Gun Ri, out of fear that the crowd included North Korean soldiers disguised in civilian garb.

The American and South Korean governments are collaborating in the investigation, and Defense Secretary William S. Cohen has declared that the United States must pursue the truth “wherever it leads.”

A senior military officer told reporters last week that the Pentagon does not intend to let wrongdoing go overlooked, even five decades after the fact. “Just because a number of years have gone by shouldn’t mean that, if war crimes were committed, we shouldn’t take action against those that did it,” this official said.

Some experts questioned whether a blanket immunity might send the wrong message abroad about U.S. willingness to investigate alleged misconduct by Americans in other parts of the world.

Gary D. Solis, an associate law professor at the U.S. Military Academy at West Point, N.Y., who has written on the law of war, said he believes that giving immunity before facts are gathered “would present troubling issues in an international context. It would suggest an unwillingness on our part to fully explore the possibilities of criminal misconduct.”

He noted that the United States last year declined to join a proposed new international criminal court that would have had jurisdiction over war crimes.

One key question about No Gun Ri who was responsible for orders calling for troops to fire on civilians.

The 1st Cavalry Division, to which the troops at No Gun Ri belonged, had standing orders to shoot anybody who crossed the line. Army Gen. William Kean, commander of the 25th Infantry Division, issued orders in late July that civilians in its operating area were to be “considered as enemy and action taken accordingly.”

The killing of civilians in wartime has long been prohibited by international agreements, as well as by the laws of many countries.

At least some of the U.S. soldiers in the Korean War were given booklets informing them that the Hague convention of 1907 forbade targeting of civilians.

Some lawyers suggest that prosecutors could cite such agreements to argue that “customary law” gives them jurisdiction to bring war crimes cases against veterans.

But other lawyers, including some at the Pentagon, have come to believe that it would be difficult for the government to make this case, since federal statutes do not appear to directly grant jurisdiction for acts committed by soldiers 49 years ago.

The Articles of War, the federal statute that governed soldiers’ conduct before 1951, gave the military no grounds to prosecute soldiers once they had left the military.

Most federal statutes don’t apply overseas. And the Geneva Conventions, which prohibits “grave breaches” such as war atrocities, was not ratified by the United States until 1955.

One U.S. official, who declined to be identified, said Pentagon lawyers “would like to find jurisdiction someplace, but I would say it’s going to be difficult.”

Any prosecutor bringing such a case would face huge practical difficulties: Memories are decades old, and there appear to be contradictory accounts on such key questions as whether gunfire was emanating from among the civilians.

Defense officials see clear benefits in offering an upfront general immunity. Leaving open the possibility of prosecution “could drive people down rat holes . . . so nobody would stand up,” one official said. The official also noted that the 30 South Korean war survivors who have pressed this case have said they do not want prosecution but only an investigation and compensation.

Donald P. Gregg, a former U.S. ambassador to South Korea who is chairman of the Korea Society in New York, said he believes that South Koreans would not object to an immunity “as long as it is not perceived as sheltering anybody from retribution.”