War Crime and the Limits of International Law
University of Massachusetts Press 2013
After World War II, the newly formed United Nations and what might be called a global community of nations that included the United States, worked to create a more extensive code of international law. The urge stemmed from the events of World War II, including the atrocities of the war that resulted in war crimes trials and tribunals afterward. The new effort included a move to implement new enforcement mechanisms and insure that the agreed upon international standards were upheld and violators punished. During this same period, the United States military significantly expanded its global presence. Throughout the Cold War and after, U.S. troops were stationed at bases in more countries than ever before, which each required Status of Forces Agreements laying out, among other things, jurisdiction over U.S. troops. This increased global presence also meant more American soldiers, and in some cases civilians accompanying the military for various reasons, were in the position to violate these international standards. Yet, despite a prominent role in spreading universal standards of international law, U.S. policymakers strongly resisted any compromise to U.S sovereignty in upholding these laws.
Patrick Hagopian, senior lecturer in History and American Studies at Lancaster University, has a new book, American Immunity: War Crime and the Limits of International Law (University of Massachusetts Press, 2013) that looks at the relationship between the United States and war crimes jurisdictional questions. He discusses how not only did U.S. policymakers refuse to allow Americans to be prosecuted by international tribunals, but also U.S. courts failed to uphold international standards of justice. Policymakers felt that territorial and practical limitations placed acts committed abroad beyond the jurisdiction of civilian courts, while the Supreme Court decided veterans and civilians could not be court-martialed. This left a jurisdictional gap that existed for much of the postwar period. Though the My Lai massacre brought the gap into particular focus, Congress still failed to close it. This new book explains jurisdictional issues and the failure of American policymakers to adequately remedy. In this episode, we discuss the legal problem, the book’s insights as to their cause, and some of the (often failed) attempts to close the gap.