restricted access Conclusion: “The One Significant Holdout”
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152 Conclusion “The One Significant Holdout” 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 generally acknowledged legal standards in its own courts lest an international or foreign court invoke its jurisdiction over their offenses. The new legislation did not emerge from a new attitude on the part of legislators; rather, in passing laws that allowed the assertion of primary jurisdiction over U.S. nationals, Congress demonstrated the same attitude of skepticism and hostility toward foreign and international courts that was evident throughout the decades considered by this book. The motives leading to the passage of MEJA are already apparent in the congressional hearings and scholarly commentary preceding the passage of the War Crimes Act and in the testimony and commentary regarding the potential jurisdiction of the ICC. In the mid-1990s, as the War Crimes Act was moving toward passage in Congress, the initial support of the United States for the creation of a permanent, United Nations–sponsored international criminal court had begun to waver. The ICC, unlike the International Court of Justice, which adjudicates conflicts among nations and makes judgments to which nations, not individuals, are subject, would be able to try individuals who violated international humanitarian law and the law of war. Despite its initial favorable interest in the creation of the ICC, the United States soon began dragging its feet regarding the proposed court. One of the principal points of contention was whether U.S. nationals would ever be subject to prosecution by the court. 153 “The One Significant Holdout” Robinson Everett had never stopped arguing the need to fill the jurisdictional gap by providing for an American forum in which war crimes could be prosecuted.1 He “worked closely” with legislators to enact the War Crimes Act, which would allow at least some currently unprosecutable suspects to be tried in U.S. courts, while also fulfilling the decades-long obligation of passing legislation that implemented the Geneva Conventions.2 In congressional hearings Everett argued that the prospect that Americans might be prosecuted by an international tribunal made it imperative to establish a judicial forum in the United States in which the same alleged crimes could be prosecuted and suspects would enjoy the procedural and constitutional protections familiar in American law: “Our having jurisdiction may protect us in situations where we need to be able to say we want to deal with our people; we don’t want to surrender them to an international court or to extradite them somewhere else.”3 The motive could not have been more clearly stated: the creation of a judicial forum that closed the jurisdictional gap, by allowing for prosecution of American defendants in a U.S. court, would “protect us” by providing a rationale on which to refuse to surrender those nationals or allow them to be extradited “somewhere else.” Everett reminded Congress of the long-standing efforts by Ervin to fill the jurisdictional void and contemplated occasions not only when an American national or a person in American custody would be accused of having violated treaty provisions, but also when demands would be made that the suspect be delivered for trial in the courts of the foreign country where the alleged crimes occurred or in an international criminal court. He pointed out that in such a situation, “if American courts have jurisdiction to try the accused for the alleged offense, a basis exists for conducting the trial in our own courts, where important procedural protections exist. However, if our courts lack jurisdiction, treaty obligations may require the United States to surrender the accused or detain the accused for trial elsewhere. In short, I believe that broadening the jurisdiction of American courts may in some instances assure procedural protections for any of our own citizens who are accused of grave breaches of international law and may allow our country to ‘wash its own dirty linen.’”4 Thus the longtime concern with the constitutional and procedural rights of...


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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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