American Immunity

American Immunity: War Crimes and the Limits of International Law

Patrick Hagopian
Copyright Date: 2013
Pages: 256
https://www.jstor.org/stable/j.ctt5vkb71
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  • Book Info
    American Immunity
    Book Description:

    In 1955 the Supreme Court ruled that veterans of the U.S. armed forces could not be courtmartialed for overseas crimes that were not detected until after they had left military service. Territorial limitations placed such acts beyond the jurisdiction of civilian courts, and there was no other American court in which they could be adjudicated. As a result, a jurisdictional gap emerged that for decades exempted former troops from prosecution for war crimes. “This was not merely a theoretical possibility,” Patrick Hagopian writes. Over a dozen former soldiers who participated in the My Lai massacre did in fact “get away with murder.” Further court rulings expanded the gap to cover civilian employees and contractors that accompanied the armed forces. In American Immunity, Hagopian places what he calls the “superpower exemption” in the context of a longstanding tension between international law and U.S. sovereignty. He shows that despite the U.S. role in promulgating universal standards of international law and forming institutions where those standards can be enforced, the United States has repeatedly refused to submit its own citizens and troops to the jurisdiction of international tribunals and failed to uphold international standards of justice in its own courts. In 2000 Congress attempted to close the jurisdictional gap with passage of the Military Extraterritorial Jurisdiction Act. The effectiveness of that legislation is still in question, however, since it remains unclear how willing civilian American juries will be to convict veterans for conduct in foreign war zones.

    eISBN: 978-1-61376-284-4
    Subjects: History, Law

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. ACKNOWLEDGMENTS
    (pp. vii-x)
  4. INTRODUCTION: The American Exemption
    (pp. 1-13)

    The history of international humanitarian law in the post–Second World War period is marked by two inconsistent—indeed, diametrically opposed—tendencies: first, the promulgation of universal standards of justice, the creation of institutions where they can be enforced, the advancing application of the principle of universal jurisdiction, and the global reach of the forces on which the enforcement of the law must rely; second, the capacity of the greatest of the great powers to achieve immunity from the application of those standards to itself and to its citizens.¹ These two tendencies rest on the same set of conditions: the...

  5. CHAPTER ONE “A Very Simple Provision”: The Uniform Code of Military Justice and the Jurisdictional Gap
    (pp. 14-26)

    In 1950 President Harry Truman signed into law the Uniform Code of Military Justice (UCMJ), which took effect the following year.¹ Four years later the Supreme Court struck down the provision in the UCMJ that allowed courts-martial to prosecute veterans for crimes they committed while in military service outside the United States. This decision opened up a jurisdictional gap that persisted for the next forty years. During that period there was no U.S. jurisdiction in which former American service personnel could be tried for crimes they committed overseas, so long as their crimes were not detected or were covered up...

  6. CHAPTER TWO “Treaty Law” and “Murdering Wives”: The Widening of the Jurisdictional Gap
    (pp. 27-47)

    Given that the ratification of the Geneva Conventions underlined the need to close the jurisdictional gap, it is striking that legislators did not raise the issue in their subsequent proposals for laws to fulfill this purpose. Their reticence is explicable by the political controversies surrounding international agreements that impinged on U.S. legal and constitutional matters. In the 1950s an important body of opinion in the United States considered international agreements to be vehicles for perceived “communistic” schemes to curtail Americans’ liberties and to restrict the sovereignty of the nation. These attitudes are evident in the debate about “treaty law” and...

  7. CHAPTER THREE “A Very Undesirable Situation”: Sam Ervin and the Constitutional Rights Subcommittee
    (pp. 48-65)

    In January 1961 Sen. Sam Ervin assumed the chairmanship of the Subcommittee on Constitutional Rights of the Senate Judiciary Committee. Although critics of his reasoning and his politics, particularly his defense of racial segregation, have doubted whether his reputation as a defender of the Constitution was entirely deserved, Ervin was known as a leading congressional expert on constitutional matters.¹ From the early days of his senatorial career he had been a ferocious and effective advocate of civil liberties, a critic of governmental abuses of power such as the assertion of executive privilege—stances that allied him with congressional liberals—while...

  8. CHAPTER FOUR “Uncharted Legal Waters”: The My Lai Massacre and the Jordan Memorandum
    (pp. 66-84)

    In the spring of 1969 a Vietnam veteran named Ronald Ridenhour acted on some painful knowledge that had been weighing heavily on his conscience: while he was still in Vietnam some of his fellow soldiers had told him of the massacre of a whole village. He was aware of incidents in which villagers had been killed in twos and threes, but this was different. Initially disbelieving, he made a point of questioning his service buddies and acquaintances while in Vietnam until he was certain in his own mind that a large-scale atrocity had taken place, and he continued his inquiries...

  9. CHAPTER FIVE A “Tragedy of Major Proportions”: The Peers Inquiry and the House Subcommittee Report
    (pp. 85-96)

    The disclosure of the atrocity at My Lai, the widespread publicity attending the publication of the photographs and interviews, and the realization of the effects of the jurisdictional gap spurred Senator Ervin to redouble his efforts to close the gap at the same time the army general counsel was trying to work around it. Meanwhile, in the flurry of political activity accompanying the disclosure of the atrocity, two investigations commenced. One, initiated by the army, was headed by Lt. Gen. William Peers, who had commanded a division in Vietnam, and the other was led by Rep. Edward Hébert of Louisiana,...

  10. CHAPTER SIX “Inexcusable and Terrible”: The Calley Conviction and the Abandonment of the Effort to Try the My Lai Veterans
    (pp. 97-122)

    The trial of Lt. William Calley was not just a legal process but also a political event. The Nixon administration monitored the progress of the trial and strategized about how to manage its political repercussions. Apart from the potential damage to the reputation of the armed forces and the erosion of public support for the war, an overriding preoccupation of the White House was how its handling of the case would affect the president’s popularity and his chances of reelection in 1972.

    During Nixon’s first year in office White House staff gathered in two strategy groups to plan how to...

  11. CHAPTER SEVEN “Why Can’t We Just Shoot Them All?”: MEJA and the First Prosecutions in Federal District Courts
    (pp. 123-151)

    The government finally closed the jurisdictional gaps arising fromToth,Covert, and their progeny with the passage of the Military Extraterritorial Jurisdiction Act (MEJA) of 2000 and of an amendment to the National Defense Authorization Act of 2006. These two legislative measures take different routes to plug the gaps I have considered. MEJA fulfilled the half-century-old proposal by Army Judge Advocate General Thomas H. Green by providing for federal district court jurisdiction over acts committed by civilians that would have been violations of the UCMJ had the perpetrators been subject to that law and by allowing military veterans to be...

  12. CONCLUSION: “The One Significant Holdout”
    (pp. 152-164)

    Why was MEJA finally passed at the end of the twentieth century after decades of legislative inaction? And how can one square the further closing of the jurisdictional gap through the extension of the UCMJ with the Bush administration’s repudiation of international legal standards in its approach to the “war on terror,” its use of torture, and its congressionally endorsed resistance to the International Criminal Court (ICC)? The record reveals that the wish of the United States to retain primary jurisdiction over its troops, private security personnel, and veterans led it finally to pass laws that permitted the enforcement of...

  13. ABBREVIATIONS
    (pp. 165-166)
  14. NOTES
    (pp. 167-236)
  15. INDEX
    (pp. 237-245)
  16. Back Matter
    (pp. 246-246)