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American Immunity

War Crimes and the Limits of International Law

Patrick Hagopian

Publication Year: 2014

In 1955 the Supreme Court ruled that veterans of the U.S. armed forces could not be court-martialed 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 long-standing 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.

Published by: University of Massachusetts Press

Title Page, Copyright Page

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pp. i-vi

Table of Contents

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pp. v-vi

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Acknowledgments

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pp. vii-x

I acknowledge the financial support of the British Academy, the Lancaster University History Department Research Support Fund, and the Lancaster University Faculty of Arts and Social Sciences for the research in this book.
I acknowledge with gratitude the assistance of Luis M. Acosta, Emily Carr, Frank Alan Herch, Debbie G. Keysor, Megan Lulofs, and Christine Sellers, Law Library of Congress; Jeffrey M. Flannery and Lewis Wyman, Manuscript Division,...

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Introduction: The American Exemption

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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 ...

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1. “A Very Simple Provision”: The Uniform Code of Military Justice and the Jurisdictional Gap

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pp. 14-26

In 1950 President Harry Truman signed into law the Uniform Code of Mili-tary 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 ...

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2. “Treaty Law” and “Murdering Wives”: The Widening of the Jurisdictional Gap

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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...

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3. “A Very Undesirable Situation”: Sam Ervin and the Constitutional Rights Subcommittee

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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 ...

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4. “Uncharted Legal Waters”: The My Lai Massacre and the Jordan Memorandum

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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 ...

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5. A “Tragedy of Major Proportions”: The Peers Inquiry and the House Subcommittee Report

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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...

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6. “Inexcusable and Terrible”: The Calley Conviction and the Abandonment of the Effort to Try the My Lai Veterans

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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 ...

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7. “Why can’t we Just Shoot them All?": MEJA and the First Prosecutions in Federal District Courts

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pp. 123-151

The government finally closed the jurisdictional gaps arising from Toth, 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 ...

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Conclusion: “The One Significant Holdout”

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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 ...

Abbreviations

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pp. 165-166

Notes

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pp. 167-236

Index

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pp. 237-245

Back Cover

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p. BC-BC


E-ISBN-13: 9781613762844
E-ISBN-10: 1613762844
Print-ISBN-13: 9781625340467
Print-ISBN-10: 162534046X

Page Count: 280
Publication Year: 2014

Series Title: Culture, Politics, and the Cold War
Series Editor Byline: Christian Appy

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Subject Headings

  • Vietnam War, 1961-1975 -- Atrocities.
  • War crimes -- History.
  • My Lai Massacre, Vietnam, 1968.
  • Military privileges and immunities -- United States.
  • Retired military personnel -- Legal status, laws, etc. -- United States.
  • Veterans -- Legal status, laws, etc. -- United States.
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