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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.

An examination of how the legal doctrine of command responsibility was applied during military tribunals for Japanese war criminals, often inconsistently and ineffectively.

Between 1945 and 1951, the Allied powers prosecuted over 5,700 suspected Japanese war criminals across the Asia-Pacific region before one international and many national tribunals using a new legal doctrine known as command responsibility. Command responsibility holds officers criminally liable for the crimes of their subordinates even if they did not order the crimes to occur. Allied authorities believed that the structure of the Japanese military had allowed the crimes to occur and that pursuing guilt for war crimes should extend beyond enlisted soldiers who were the direct perpetrators of war crimes to those who had been in a position of command.

Command on Trial shows that the application of command responsibility in the courtroom was highly unstable and open to manipulation, especially in the trials of lower-ranking officers, resulting in outcomes that were legally, morally, and philosophically inconsistent. A clear illustration of the pitfalls of command responsibility, this book shows that the trials—and command responsibility—did not achieve comprehensive justice and left unanswered the question of who was actually responsible for many of the war crimes that were perpetrated.

In September 1994, Lawrence P. Rockwood, then a counterintelligence officer with the U.S. Army's Tenth Mountain Division, was deployed to Haiti as part of Operation Restore Democracy, the American-led mission to oust the regime of Raoul Cedras and reinstall President Jean-Bertrand Aristide. Shortly after arriving in-country, Captain Rockwood began receiving reports of human rights abuses at the local jails, including the murder of political prisoners. He appealed to his superiors for permission to take action but was repeatedly turned down. Eventually, after filing a formal complaint with an army inspector general, he set off to inspect the jails on his own. The next day, Captain Rockwood found himself on a plane headed back to the United States, where he was tried by court-martial, convicted on several counts, and discharged from military service. 

In this book, Rockwood places his own experience within the broader context of the American military doctrine of “command responsibility”—the set of rules that holds individual officers directly responsible for the commission of war crimes under their authority. He traces the evolution of this doctrine from the Civil War, where its principles were first articulated as the “Lieber Code,” through the Nuremberg trials following World War II, where they were reaffirmed and applied, to the present. Rockwood shows how in the past half-century the United States has gradually abandoned its commitment to these standards, culminating in recent Bush administration initiatives that in effect would shield American commanders and officials from prosecution for many war crimes. The Abu Ghraib and Guantánamo prison abuse scandals, the recently disclosed illegal CIA detention centers, the unprecedented policy of tolerating acts considered as torture by both international standards and U.S. military doctrine, and the recent cover-ups of such combat-related war crimes as the Haditha massacre of November 2005, all reflect an “official anti-humanitarian” trend, Rockwood argues, that is at odds with our nation's traditions and principles.