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.
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