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167 Notes Introduction: The American Exemption 1. For an account of the growing recognition of universal jurisdiction in U.S. federal courts and the courts of other nations, see Mark Zaid, Prepared Statement, U.S. Congress, House, 104th Cong., 2nd Sess., Committee on the Judiciary, Hearing before the Subcommittee on Immigration and Claims of the Committee on the Judiciary on H.R. 2587, War Crimes Act of 1995, June 12, 1995, 33–38. International humanitarian law regulates the conduct of armed conflicts. 2. U.S. ex rel Toth v. Quarles, 350 U.S. 11 (1955). 3. K. Elizabeth Waits, “Avoiding the ‘Legal Bermuda Triangle’: The Military Extraterritorial Jurisdiction Act’s Unprecedented Expansion of U.S. Criminal Jurisdiction over Foreign Nationals,” Arizona Journal of International and Comparative Law 23 (2005–6): 494, 513. 4. See, for example, the testimony by the American Civil Liberties Union (ACLU) in the hearings on S. 761 in 1966. U.S. Congress, Senate, 89th Cong., 2nd Sess., Committee on the Judiciary, Subcommittee on Constitutional Rights, and Committee on the Armed Services, Special Subcommittee, Joint Hearings, Military Justice, January 18, 19, 25, and 26, March 1, 2, and 3, 1966 [hereafter 1966 Joint Committee Hearings], 343. 5. William G. Eckhardt, Ron Ridenhour, Hugh C. Thompson Jr., “Experiencing the Darkness: An Oral History,” in Facing My Lai; Moving beyond the Massacre, ed. David L. Anderson (Lawrence: University Press of Kansas, 1998), 43; William G. Eckhardt, “My Lai: An American Tragedy,” University of Missouri Kansas City Law Review 68 (1999–2000): 680. 6. Muriel Dobbin, “My Lai Revives Legal Issue,” Baltimore Sun, April 26, 1970. A few years later a member of the Judge Advocate General’s Corps was still expressing this rather forlorn hope, at around the time Senator Ervin abandoned his legislative efforts: “The need for legislative reform to cure this jurisdictional problem has not gone unnoticed, and My Lai may provide the incentive for legislation which has in the past been proposed but not imposed as law.” Norman G. Cooper, “My Lai and Military Justice—To What Effect?” Military Law Review 59 (Winter 1973): 110. 7. Paul R. Clancy, Just a Country Lawyer: A Biography of Senator Sam Ervin (Bloomington : Indiana University Press, 1974), 236. 8. For the effects of his eloquence on his Senate colleagues, see, e.g., Dick Dabney, A Good Man: The Life of Sam J. Ervin (Boston: Houghton Mifflin, 1976), 240–41. 9. Thomas Jefferson, Notes on the State of Virginia, ed. William Peden (New York: Norton, 1972), 163. 10. Michal R. Belknap, The Vietnam War on Trial: The My Lai Massacre and the CourtMartial of Lieutenant Calley (Lawrence: University Press of Kansas, 2002) deals with the decision not to pursue the cases against the suspects no longer in uniform in less than two 168 Notes to Pages 4–7 pages; Michael Bilton and Kevin Sim, Four Hours in My Lai: A War Crime and Its Aftermath (New York: Penguin, 1992); Kendrick Oliver, The My Lai Massacre in American History and Memory (Manchester: Manchester University Press, 2006). 11. For a theorization of American exemptionalism and double standards, which Ignatieff identifies as variants of exceptionalism, see Michael Ignatieff, “Introduction: American Exceptionalism and Human Rights,” in American Exceptionalism and Human Rights, ed. Michael Ignatieff (Princeton: Princeton University Press, 2005), 1–26. 12. Costas Douzinas, Human Rights and Empire: The Political Philosophy of Cosmopolitanism (Abingdon: Routledge-Cavendish, 2007), 27–28; see also Costas Douzinas, The End of Human Rights (Oxford: Hart Publishing, 2000), 118. 13. The Responsibility to Protect: Report of the International Commission on Intervention and State Sovereignty (Ottawa: International Development Research Centre, 2001), 13. One must note, however, the growing challenge to the concept that the nation-state is the only relevant actor in the creation of international law. Austen L. Parrish, “Reclaiming International Law from Extraterritoriality,” Minnesota Law Review 93 (2008–9): 829–30. 14. Louis Henkin, “That ‘S’ Word: Sovereignty, and Globalization, and Human Rights, Et Cetera,” Fordham Law Review 68 (1999–2000): 2. In McCullough v. Maryland, 17 U.S. 316 (1819), the U.S. Supreme Court upheld the validity of federal laws passed in pursuance of the Constitution over against any attempted prohibitions by the states because the people ratified the Constitution; the powers of the federal government were not delegated by the states but derived from the sovereign people. 15. For a discussion of the equality of sovereigns and the mutual recognition of sovereign dignity, see Carl Schmitt, The Nomos of the Earth in the International Law of...


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