Can the United States Prosecute Bob Kerrey for a War Crime?

Several commentators, including Slate’s Scott Shuger, have suggested that there’s sufficient information to prompt an investigation into whether former Sen. Bob Kerrey committed a war crime when he was a Navy SEAL on a mission in Vietnam in 1969. How would the United States go about investigating and prosecuting such an alleged crime?

The Department of Defense has the authority to undertake an investigation into the incident. Such an investigation so long after the event would be more than highly unusual, but it would not be without precedent. When the Associated Press reported in 1999 that civilians were massacred under orders by U.S. troops in 1950 during the Korean War, then-Secretary of Defense William Cohen ordered an investigation by the Army inspector general. After a year’s research, the report concluded that U.S. soldiers killed civilians but that there was no order to kill. The United States issued a statement of regret, and there was no legal action taken against any Americans. In Kerrey’s case, because the people involved were in the Navy, the secretary of the Navy or the secretary of defense could conceivably order a similar investigation.

While prosecution of this matter is even more unlikely than an investigation, it would be very difficult for the military to have standing to bring a case. Any of the former Navy SEALs who were involved in the incident who received a discharge from the Navy cannot be prosecuted. The military courts have no jurisdiction over civilians, even if those civilians once served. The only jurisdiction they have is over those members of the team who retired from the Navy. Retired personnel can be recalled for court martial. According to the New York Times article that kicked off this debate, one member of Kerrey’s team is a retired SEAL. Explainer was not able to find out from Kerrey’s office whether the former senator, who lost a leg in Vietnam, received a medical discharge or medical retirement from the Navy.

Accepting that prosecution is highly improbable, if Kerrey were retired from the military and a case were made, the grounds would be a violation of the Uniform Code of Military Justice. This code incorporates within it the Geneva Conventions, which form the basis for prosecution of many war crimes. U.S. military personnel who have committed what could be considered war crimes are tried for specific violations of the code–for example, murder. During Vietnam it is estimated that 95 soldiers and 27 Marines were tried for what would be considered war crimes, although they weren’t identified as war criminals. (Read more about that here.) In 1996 Congress passed war crimes legislation that covers the actions of both the U.S. armed forces and civilians. But this law is not retroactive, so it could not apply to anything that took place in Vietnam. Nor could international war crimes tribunals have authority over an American who served in Vietnam. Those tribunals have a United Nations mandate to investigate war crimes committed in the former Yugoslavia and Rwanda.

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Explainer thanks Gary Solis, author of Son Thang: An American War Crime, and Eugene R. Fidell of the National Institute of Military Justice.