Patrick Hagopian, a Senior Lecturer in history and American studies at Lancaster University, has turned his prodigious talents to an enduring feature of American exceptionalism. American lawmakers after World War II piously demanded that the rest of the world follow universal human rights norms. Yet they carefully exempted American servicemen from these same standards by preventing veterans from prosecution for war crimes committed during their deployment overseas. This created a “jurisdictional gap” that the United States protected for decades, closing it only in the last years of the twentieth century to avoid the growing reach of universal jurisdiction exercised by foreign courts (e.g., p. 2). Hagopian finds this perplexing.
But if you believe, as I do, that law is the handmaiden of ideology—that it serves and legitimizes prevailing belief systems within society—then there is nothing perplexing about the behavior Hagopian has worked so hard to explain.
American Immunity: War Crimes and the Limits of International Law is an engaging account of the varied legal arguments by which the United States developed and maintained this double-standard. The net, however, is simply this: In its foreign face, the United States has long insisted on one rule for itself and another for everyone else, and justified the difference by making particular arguments about the law. This of course is a time-honored feature of the interaction between law and ideology in the United States—law blesses what ideology wants—and there is nothing unusual about the behavior Hagopian describes. On the contrary, it is merely another illustration of a drearily familiar principle: power implies the license to make and justify the rules.
The most prominent example of this behavior in American history is the creedal attachment to equality set alongside the ideological attachment to white supremacy, which in turn produced elaborate legal justifications, from the slave codes to Jim Crow. Again, law blesses what ideology wants. Given the endurance of this behavior, the oddity is not that it recurs, but that people perennially expect it to be otherwise and express shock when they encounter it anew. Yet their reaction—a mix of astonishment and disappointment—is testament to the capacity of ideology to conceal its incoherence. And in fact, “conceal” is the wrong verb, as the incoherence is invariably hidden in plain sight. One thinks of Orwell's observations in “Notes on Nationalism,” which appeared 70 years ago:
All nationalists have the power of not seeing resemblances between similar sets of facts. A British Tory will defend self-determination in Europe and oppose it in India with no feeling of inconsistency. Actions are held to be good or bad, not on their own merits, but according to who does them, and there is almost no kind of outrage — torture, the use of hostages, forced labor, mass deportations, imprisonment without trial, forgery, assassination, the bombing of civilians — which does not change its moral color when it is committed by ‘our’ side. … The nationalist not only does not disapprove of atrocities committed by his own side, but he has a remarkable capacity for not even hearing about them (Reference OrwellOrwell 1945).
Orwell, of course, is talking about a particular species of ideology—nationalism—but the point is the same. And in fact, Hagopian accurately describes the jurisdictional gap as the product of a fixed belief in “the superiority of American laws and institutions and a suspicion of foreign entities, particularly foreign or international courts,” which he distills as a “nationalistic self-satisfaction” (p. 29).
The more interesting question, which Hagopian does not explore, is why this particular ideology—this “nationalistic self-satisfaction”—has been able to endure through such a varied period in U.S. history. We know ideologies and their dedicated legal handmaids rise and collapse. The ideology of laissez-faire capitalism and its legal servant, Classical Legal Thought, for instance, had a great run, from roughly the end of Reconstruction to the Great Depression (Reference HorowitzHorowitz 1992). But the transformative weight of industrialization and economic collapse combined to make the ideology unsustainable, and it ultimately gave way to modern liberalism during the New Deal. Yet, the duration of laissez-faire capitalism—roughly a lifetime—is practically the blink of an eye compared to the impressive durability of the faith in American superiority vis-à-vis the rest of the world. Indeed, although Hagopian focuses on a particular dimension of this belief system, there has never been a moment in American history when it has not been present.
By all the conventional measures, Hagopian has written a fine book. His thesis is clear and well-developed, he collects and presents the historical evidence in a crisp, accessible narrative, and he describes an aspect of American exceptionalism that deserves to be widely known. Yet, one cannot help but feel that we would have been better off if a scholar of his ability had asked more of himself and tried to tackle the harder questions embedded within his subject. For those answers, we will have to look elsewhere.
