Charges still possible but unlikely, experts say

Former Lt. James Hawkins, who left as a major in 1978.

Thirty-six years after their tours in Tiger Force, former platoon members still could be prosecuted for what happened in Vietnam, although legal experts say it's unlikely to happen.

The military could recall and sanction those who retired from the Army. An international tribunal could seek their prosecution. And a foreign country could pursue the case - including Vietnam.

The stakes are highest for soldiers who retired from the military. Under case law that dates back to the 19th century, military retirement checks are viewed as reduced pay for reduced services, not as pensions, said retired Lt. Col. J. Mackey Ives, a former Army command judge advocate.

So soldiers who retired - usually after 20 years of service - can be recalled to active duty for court-martial.That category would include the highest-ranking murder suspect, former Lt. James Hawkins, who left as a major in 1978.

Mr. Hawkins said recently that he wasn't sure if the Army would now prosecute the case.

“After these years ... I hardly think that it would be in the best interest of anyone to,” he said, before his voice trailed off. “You never know.”

Although rare to recall retirees, it's not unprecedented.

In the most recent case, retired Maj. Gen. David Hale was recalled and court-martialed in 1999 for sexual affairs he had several years earlier with the wives of four of his then-subordinates. He was fined $22,000, demoted to a lower rank, and had his pension cut.

For suspects who did not make a career out of the Army, there isn't a legal avenue to prosecute them in the United States.

The 1996 War Crimes Act allows federal prosecutors - not just the military - to prosecute war crimes committed anywhere by current or former soldiers. But it is not retroactive, so crimes committed in Vietnam would not qualify.

Foreign countries, however, could try to punish the soldiers.

Dozens of countries, from Spain to Canada, have “universal jurisdiction” laws that allow for the prosecution of war crimes - regardless of whether the act involved its own citizens or territory. But legal experts doubt U.S. officials would cooperate.

If foreign countries chose not to try the cases on their own, they could call for an international tribunal to prosecute the crimes, such as the one created to handle war crimes committed in the former Yugoslavia.

As part of a separate effort, the United Nations has begun an International Criminal Court as a catch-all tribunal for war crimes - but it couldn't be the one to try former Tiger Force members. Besides not tackling crimes committed before 2002, the tribunal agreed to U.S. demands that it exempt U.S. soldiers for now.

Vietnam could seek to punish the soldiers, but that would be complicated because the country has no extradition treaty with the United States.

In fact, most legal experts say that while there are plenty of legal avenues theoretically open to prosecute former platoon members, the chances of a successful prosecution are slim. Beyond the complexities of trying a 36-year-old case, they also doubt anyone - from the military to a foreign country - would have the political will to pursue it.

“Realistically, there's nothing that could happen to them,” said retired Lt. Col. H. Wayne Elliott, who once taught international law at the Army's law school in Virginia.

Regardless of the odds, some suspects continue to fear prosecution. Ernest Moreland, 57, still won't talk about his role in the killing of a prisoner near Duc Pho in July, 1967.

“I wouldn't want to put myself or others in jeopardy after all these years,” he said. “I can't take that chance.”

Blade staff writer Mitch Weiss contributed to this report.

(Story was published on Oct. 21, 2003)