Strengthening American War Crimes Accountability

70 Am. U. L. Rev. 309 (2020).

* Geoffrey S. Corn is The Gary A. Kuiper Distinguished Professor of National Security at South Texas College of Law Houston. Rachel E. VanLandingham is a Professor of Law at Southwestern Law School in Los Angeles, California. They teach criminal law, criminal procedure, national security law, and the law of armed conflict. They are each former military lawyers and retired Lieutenant Colonels in the U.S. Army and U.S. Air Force, respectively. The authors thank Professor Yuval Shany and The Minerva Center for Human Rights at Hebrew University, and all the participants at the 14th Annual Minerva/ICRC Conference on International Humanitarian Law for the opportunity to workshop this Article in November 2019; we also thank Professors Eugene Fidell, Gregory Gordon, and Joshua Kastenberg for their thoughtful feedback. We thank Kelsi Grau, J.D. Candidate, 2022, Southwestern Law School, for her research assistance.

The United States needs to improve accountability for its service members’ war crimes. President Donald J. Trump dangerously intensified a growing national misunderstanding regarding the critical nexus between compliance with the laws of war and the health and efficacy of the U.S. military. This Article pushes back against such confusion by demonstrating why compliance with the laws of war, and accountability for violations of these laws, together constitute vital duties owed to our women and men in uniform.

This Article reveals that part of the fog of war surrounding criminal accountability for American war crimes is due to structural defects in American military law. It analyzes such defects, including the military’s failure to prosecute war crimes as war crimes. It carefully highlights the need for symmetry between the disparate American approaches to its enemies’ war crimes and its own service members’ battlefield offenses.

To help close the current war crimes accountability deficit, we propose a comprehensive statutory remedial scheme that includes: the enumeration of specific war crimes for military personnel analogous to those applicable to unlawful enemy belligerents as found in the Military Commissions Act; the formal addition of command responsibility liability doctrine to military criminal law; the provision of criminal defenses relevant to war crimes allegations; and the extension of court-martial jurisdiction over all enemy belligerents using the same enumerated war crimes proposed for U.S. service members.

Introduction

The United States faces periodic and appropriate criticism for failing to hold its service members accountable for their battlefield criminality.¹ An example of impunity that prompted such condemnation occurred in 2019, when President Donald J. Trump granted pardons to military personnel either convicted of or facing charges for offenses that qualify as war crimes.² These pardons exacerbated a prevalent impression that America is indifferent to its own battlefield misconduct. This perception of impunity degrades U.S. legitimacy. Additionally, the underlying truth it reveals—that the U.S. military has not been fulfilling its responsibility to appropriately punish war crimes—frustrates the governing legal regime’s humanitarian goals, challenges the military’s attainment of operational and strategic objectives, and harms individual service members.

This negative impression of America’s treatment of war crimes contrasts starkly with our modern military’s self-perception as a professional force, one that justly punishes those who fail to follow the laws of war.³ It also contrasts with most Americans’ belief that our military predominantly complies with the laws of war and that they should so comply—and that the widespread atrocities by U.S. forces in Vietnam have been left behind.⁴ On the other hand, criticism of how the United States handles war crimes that its own service members commit seems rather consonant—disconcertingly so—with American society’s view regarding punishment of its service members for war crimes. Today, many Americans—with President Trump egging them on—seem to support impunity for war crimes that U.S. service members commit.⁵

These seemingly opposing views reflect that the American public fails to appreciate that accountability for war crimes is essential for the compliance it desires. We therefore strongly set out this link in detail in the first part of this Article.⁶

Away from the din of public opinion and President Trump’s tweets, the reality of U.S. military accountability for serious violations of the laws of war—typically referred to as war crimes—is nuanced. The current, perhaps endemic, political pressure to avoid domestic prosecutions of service members for war crimes, combined with certain systemic flaws, create a sinister war crimes accountability deficit. This deficit is sinister not only because it quietly corrodes the military’s internal discipline and moral compass, but also because it degrades the United States’ compliance with its state responsibility obligations to ensure such accountability⁷ and provides ammunition for those generally critical of military tribunals.⁸ Plus, this accountability deficiency dilutes the important signaling effects regarding U.S. commitment to accountability for war crimes that military adjudicatory processes can and should have.⁹

Current structural defects outlined in this Article exacerbate the inherent challenges of ensuring accountability for battlefield crimes, contributing to this deficit.¹⁰ While these existing challenges are often practical, such as limited availability of evidence, political pressure (of a type not unique to America) often accompanies such prosecutions.¹¹ For example, many Americans felt that Lieutenant William L. Calley’s horrendous actions were either justified, or that he was simply a scapegoat for the 1960s My Lai tragedy (during which a U.S. Army platoon massacred hundreds of Vietnamese civilians) and that he should not have been prosecuted for murder.¹²

More recently, the U.S. President and Commander-in-Chief demonstrated similar politicized misunderstanding of the need for war crimes accountability. During his Administration, President Trump publicly condemned the prosecution of American military “heroes” for their alleged war crimes.¹³ Worse, he pardoned war criminals both after their military convictions¹⁴ as well as during the court-martial process.¹⁵ These actions were predicated not on mercy, but on the perversion of the entire war crimes accountability regime, seemingly in order to score political points. Clarifying the need for accountability, as well as strengthening the mechanism for achieving it, will help counter the harm that such actions have inflicted on our armed forces.

This Article provides necessary awareness and outlines a path forward. It first identifies several structural legal defects, starting with military law’s failure to criminalize war crimes as war crimes. While the statutory enumeration of military criminal offenses found in the Uniform Code of Military Justice¹⁶ (UCMJ) provides general authority to prosecutors to charge serious violations of the laws and customs of war, it does not delineate any specific war crimes¹⁷—and hence none are ever charged.¹⁸ Without specified war crime offenses, the U.S. military turns to what are often referred to as “common law crimes”—ordinary, non-war-related crimes such as murder, assault, battery, arson, theft offenses, and rape—to prosecute service members for what are more logically understood and characterized as war crimes.¹⁹ In the U.S. military system, the same generic murder offense used to convict a service member of murdering his or her spouse in downtown Los Angeles is used to prosecute a service member for killing a prisoner of war in U.S. custody in Iraq.

This approach fails to capture the full harm of the war crime, thereby degrading the law’s retributive, deterrent, and international signaling effects.²⁰ This approach also feeds the perception that war crimes go unpunished within the U.S. military, given that service members are never convicted for war crimes as such. This failure to prosecute U.S. soldiers’ war crimes as war crimes undermines the legitimacy of U.S. military operations by contributing to the impression that U.S. military personnel benefit from war crimes impunity.²¹

We propose an easy fix: the United States should utilize the same enumerated war crimes already used to prosecute its enemies at Guantanamo Bay, Cuba through the Military Commissions Act of 2006²² (MCA) to prosecute U.S. service members for identical criminal conduct on the battlefield.²³ However, delineating offenses alone is insufficient for just and thorough fulfillment of this nation’s obligations to its service members. This Article also assesses issues stemming from the lack of incorporation of specifics of the laws and customs of war—modernly often referred to as the law of war, the law of armed conflict (LOAC) or international humanitarian law—and its battlefield setting into the UCMJ. We accordingly propose adding tailored defenses to accompany the enumerated war crimes transplanted from the MCA.²⁴

A handful of scholars have previously expressed alarm at the lack of UCMJ war crimes; we both echo their concern and go further to comprehensively contextualize this defect within the norms of the LOAC, emphasizing the law’s requirement of responsible command.²⁵ Part I outlines the criticality of compliance, focusing on why accountability for war crimes is a necessary predicate of compliance; this Section also emphasizes the duties that flow from responsible command while highlighting internal benefits of the doctrine.²⁶ Part II highlights the asymmetry between the UCMJ’s lack of war crimes in its punitive articles and the MCA’s enumerated list applicable to captured alien “unprivileged belligerents” subject to military commission jurisdiction.²⁷ Here we recommend both incorporating the latter into the former, and extending command responsibility liability to U.S. commanders. Part III identifies additional deficiencies in current U.S. military criminal law regarding war crimes; this Part demonstrates why court-martial jurisdiction should be exercised over not only U.S. service members, but all captured enemy belligerents, both privileged and unprivileged.²⁸

Our conclusion notes that enactment of UCMJ-enumerated war crimes and defenses, coupled with delineation of appropriate court-martial jurisdiction over those whom the LOAC was designed to apply—both U.S. service members and enemy belligerents, lawful and unlawful—will together offset any necessity to invoke military commission jurisdiction for captured personnel, helping to end the ill-conceived military commission system at Guantanamo Bay and close the American war crimes accountability deficit.

I. U.S. Approach to Military War Crimes Accountability

A. Why Should America Prosecute War Crimes?

The U.S. military needs to improve its capability to prosecute war crimes for three main reasons, all predicated on the principle that compliance with legal rules requires accountability for their inevitable violations. The triad motivating enhanced accountability include the following: LOAC compliance is a legal duty of all service members; there are pragmatic warfighting benefits of said compliance; and the preservation of service members’ moral compass depends upon LOAC compliance. This Section explores these principles.

1. Compliance requires accountability

The basic predicate underlying these assumptions is that accountability is essential to overall compliance with the law of war and therefore key to this legal regime’s effectiveness. Indeed, the International Military Tribunal at Nuremberg noted that “[c]rimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.”²⁹ The LOAC cannot achieve its humanitarian goal of reducing suffering in war if it is not followed; law that is not enforced is eventually law that is not effective.³⁰ Indeed, impunity for war crimes corrodes respect for and compliance with this law, a fact that has been tragically illustrated throughout history.³¹

The recognition of criminal accountability’s pivotal role in reinforcing the LOACs evident not only from the international community’s establishment of both ad hoc and standing tribunals to prosecute war crimes,³² but also from the foundational LOAC treaties themselves.³³ This is most apparent in the four Geneva Conventions of 1949; of their many contributions, one of the most significant was their enforcement trifecta that (1) specifies the most serious war crimes as “grave breaches;”³⁴ (2) obligates states both to enact domestic criminal legislation to prosecute these grave breaches and separately to suppress all other violations of the law of war;³⁵ and (3) establishes an aut dedere aut judicare (“surrender or judge”) obligation to search for and prosecute perpetrators of grave breaches within each treaty party’s jurisdiction, even when that state has no relationship to the conflict or the individual suspected of the grave breach.³⁶ The states drafting the Conventions enacted and agreed to such a robust enforcement paradigm because they recognized that “to effectively impose the requirements and prohibitions of the Conventions, there had to be a vehicle by which penalties could be imposed for violations—penalties of a criminal nature levied against the offending individuals.”³⁷

2. Legal duty: Responsible command

In addition to imposing on states these legal requirements regarding accountability and prosecution, the LOAC assigns primary responsibility—for both compliance with the law and accountability for violations—to military commanders through the doctrine of “responsible command.”³⁸ This doctrine is woven into the fabric of the law and is central to the aspiration that law can genuinely mitigate the suffering of war. Without commanders committed to implementing the law—those with requisite authority, with the legal duty, and for whom there is accountability for failures—the law is a mere fig leaf. As the U.S. Supreme Court has noted, “the law of war presupposes that its violation is to be avoided through the control of the operations of war by commanders who are to some extent responsible for their subordinates.”³⁹

Responsible command is integral to the LOAC regime, as demonstrated by the connection between it (responsible command) and the legal privilege to engage in hostilities with accordant combatant immunity for those who otherwise meet the “privileged belligerent” qualification. Belligerent or combatant’s privilege, also referred to as combatant immunity, is legal protection from domestic prosecution by a detaining power for wartime conduct that complies with the LOAC.⁴⁰ This privilege is absolutely contingent on the individual being part of an organization operating under responsible command (as well as the organization as a whole fulfilling several other criteria, such as conducting operations in accordance with the LOAC, carrying arms openly, etc.).⁴¹ That is, conducting operations in compliance with the LOAC’s targeting and humane treatment rules is insufficient by itself to trigger this international legal privilege; more is required.⁴² And that “more” is the link between the individual belligerent and a responsible commander.

Furthermore, responsible command means more than just being in command; it means executing the duties of command responsibly. This requires that commanders, due to their special status as superior authoritative figures,⁴³ be responsible for the conduct of their subordinates over whom they exercise control.⁴⁴ Specifically, this control must ensure that operations under their command comply with the LOAC and that commanders hold their subordinates accountable for any and all LOAC violations.⁴⁵ These duties are often framed as a triad: the duty of responsible command requires that commanders prevent, suppress, and punish violations of the LOAC.⁴⁶

Given that LOAC violations are not wholly preventable—soldiers being human, and human nature being what it is—ensuring compliance means that commanders must take all reasonable measures to ensure military operations conducted by those under their control are planned and executed in accordance with the LOAC and stop those violations when they do occur.⁴⁷ Commanders’ third duty—to hold suspected violators accountable (in other words, to ensure appropriate consequences)—requires that commanders take reasonable measures within their authority in response to LOAC violations by those under their command. Such measures include investigating allegations of violations committed by those under their command, reporting such allegations to those with disciplinary authority, and, if vested with prosecutorial discretion, prosecuting such violations.⁴⁸ This responsible command duty to punish flows from the deep-seated recognition analyzed above that accountability through the imposition of appropriate disciplinary or criminal sanction is indelibly linked to general compliance with the law.⁴⁹

Given the recurring congressional debates about the UCMJ’s vesting of prosecutorial discretion in non-lawyer commanders⁵⁰—a component of U.S. military law inherited from the British military justice system and central to U.S. military justice ever since⁵¹—it is important to note the evolution of related law in many other nations. Relevant changes in foreign military justice systems⁵² strongly suggest that the LOAC responsible command duty to hold war criminals accountable for their misconduct need not require that military commanders themselves possess prosecutorial authority to decide what charges to bring, and whom to charge, in a criminal trial (even though some commanders within the U.S. military justice system do, in fact, wield exclusive prosecutorial authority).⁵³ As noted in the commentary to the Additional Protocol I to the Geneva Conventions:

The object of these texts is to ensure that military commanders at every level exercise the power vested in them, both with regard to . . . the Conventions and the Protocol, and with regard to other rules of the army to which they belong. Such powers exist in all armies. They may concern, at any level, informing superior officers of what is taking place in the sector, drawing up a report in the case of a breach, [] intervening with a view to preventing a breach from being committed, proposing a sanction to a superior who has disciplinary power[—]or[,] in the case of someone who holds such power himself[,] exercising it[] within the limits of his competence—and finally, remitting the case to the judicial authority where necessary with such factual evidence as it was possible to find.⁵⁴

Various levels of command have long existed in American and foreign militaries. Within these various professional forces, while some commanders continue to wield court-martial prosecutorial power, most western states have moved away from this model of prosecutorial decision-making within their militaries. The United States, at its Founding, adopted Great Britain’s system; in the interim, the now-United Kingdom has completely divested prosecutorial authority for criminal offenses from its military commanders and vested the authority to make these decisions in a civilian prosecutor.⁵⁵ Yet few would suggest the United Kingdom is, as a result, in violation of the international law obligation to ensure war crimes accountability.

However, there are a few American military justice scholars who protest that if U.S. commanders (like their U.K. counterparts) are divested of their current prosecutorial authorities, it will result in an inevitable breach of the U.S. obligation to implement the command duty to punish.⁵⁶ This concern is overstated and reflects a policy preference rather than a legally required modality of implementing this international law obligation. This is because the international law doctrine of responsible command requires that commanders “exercise the power vested in them,” which often is not the power to prosecute, but rather that of reporting to appropriate investigatory and accountability offices.⁵⁷ In other words, compliance with responsible command depends on the level of authority held and whether the commander wields the authorities they do possess in a reasonable manner.

The military helps ensure that duties such as those inherent in responsible command are fulfilled through its disciplinary and criminal justice systems, in which dereliction of duty can be the basis for imposition of consequences ranging from administrative to criminal. The classic military dereliction crime allows prosecution of any individual subject to military criminal jurisdiction for failing to exercise any of his or her military duties, which naturally includes those imposed on them by the law of war’s tenet of responsible command.⁵⁸ Unlike in international criminal law, which establishes indirect liability for the war crime itself, an American military commander is guilty of the military offense of dereliction of duty if she fails (with the requisite mental state) to intervene in a situation where it is reasonably foreseeable that a war crime will occur, or fails to take appropriate investigatory, reporting, or prosecutorial action regarding alleged war crimes within her command.⁵⁹ We explain why indirect liability for the actual war crimes is needed in Section II.C.

3. Pragmatic necessity

Avoiding criminal charges for failure to exercise one’s responsible command duties is hardly the only dynamic, or the most important one, that incentivizes military commanders to ensure that their subordinates both comply with the LOAC and are held accountable when they do not. Instead, the recognition and appreciation of the reality that adherence to the law is essential to combat effectiveness is the most powerful incentive for LOAC compliance and accountability.⁶⁰ As others have noted:

General George Washington stated at the beginning of the Revolutionary War that [the war] would be “carried on agreeable to the rules which humanity formed” and that both sides should “prevent or punish every breach of the rules of war within the sphere of our respective commands.” [He] believed in punishing war crimes because he instinctively understood that impunity for violations corrodes confidence in leadership; challenges the moral foundation of the men and women put under arms; increases the enemy’s will to resist; and undermines the broader legitimacy of military action.⁶¹

Throughout history, the notion of military command has included mechanisms for the imposition of discipline for subordinates’ criminal misconduct.⁶² The fairness and legitimacy of these processes has varied widely among armed forces and has evolved substantially over time.⁶³ However, the common thread that runs through this history is the recognition that accountability contributes to unit effectiveness because it buttresses the expectation that commanders’ orders will be followed, even when subordinates face enormous risk.⁶⁴ As others have noted, “[m]isconduct on the battlefield loses wars.”⁶⁵ To prevent the breakdown of good order and discipline, it is axiomatic that misconduct must be dealt with swiftly—and fairly, as unjust punishment is equally corrosive to good order and discipline.⁶⁶ This recognition is found in examples of misconduct punishable as military crimes dating back to the Roman Legions; professional militaries have utilized military penal codes since at least the fourteenth century to delineate specific consequences for misconduct by members of armed forces.⁶⁷

In addition to good order and discipline, there are other equally pragmatic incentives for military commanders to ensure appropriate accountability for war crimes. One is the reward of compliance itself: without accountability there is less compliance, and law of war compliance ultimately not only helps reduce suffering in armed conflict, but it also helps win wars—not only because well-disciplined troops are more likely to respect the obligations imposed on them by superiors more reliably, but also because LOAC compliance enhances the legitimacy of military and national action.⁶⁸ In contrast, violations of the LOAC invigorate the enemy,⁶⁹ degrade domestic and international legitimacy,⁷⁰ and undermine the potential for a lasting peace.⁷¹ LOAC adherence “differentiates war from riot, piracy, and generalized insurrection.”⁷²

Legitimacy is an even more significant interest in modern armed conflicts in which victory is rarely defined as complete submission of an enemy. Victory today is substantially more nuanced, involving political, diplomatic, and military end states. In the context of most contemporary armed conflicts, both domestic and international legitimacy of a nation’s conduct—by and through its armed forces—is greatly influenced by perceptions of its adherence to the LOAC.⁷³ The perception of disregard of the law and impunity for its violators can cause strategic losses on and off the battlefield.⁷⁴

This relationship between law, legitimacy, and operational and strategic success is reflected by the elevation of legitimacy to the status of a principle of military operations in U.S. military joint operational doctrine. This recently recognized military principle emphasizes that it is the reality and perception of legal compliance that provides that critical legitimacy, specifically noting that:

Legitimacy, which can be a decisive factor in operations, is based on the actual and perceived legality, morality, and rightness of the actions from the various perspectives of interested audiences. These audiences will include our national leadership and domestic population, governments, and civilian populations in the OA [Operational Area], and nations and organizations around the world.⁷⁵

4. Moral imperative

Another often overlooked reason for ensuring full accountability for war crimes is the preservation of the morality of service members ordered by their state or other authority to engage in armed conflict. Simply put, adherence to the law of war, including accountability for those who fail to adhere, helps military commanders maintain their subordinates’ sense of humanity and decency. Democracies ask their service members to wield great violence on their citizens’ behalf; they expect them to do what is normally unthinkable while respecting the legal and moral lines of permissible conduct established by international law.⁷⁶ Commanders bear an obligation to protect these women and men from not only the physical, but also the moral and psychological risks of mortal combat so they are able to return home and resume healthy lives. As James McDonough explained in his seminal memoir of his time as an infantry platoon leader in Vietnam:

I had to do more than keep them alive. I had to preserve their human dignity. I was making them kill, forcing them to commit the most uncivilized of acts, but at the same time I had to keep them civilized. That was my duty as their leader . . . . War gives the appearance of condoning almost everything, but men must live with their actions for a long time afterward. A leader has to help them understand that there are lines they must not cross. He is their link to normalcy, to order, to humanity. If the leader loses his own sense of propriety or shrinks from his duty, anything will be allowed.⁷⁷

The LOAC helps commanders maintain these lines and preserve moral clarity by providing the framework for morally correct and humane behavior even in the most austere, violent, and challenging of conditions.⁷⁸ Failure to hold transgressors accountable not only makes future LOAC compliance less likely, but it is also morally corrosive to those who witnessed or know of the violation and subsequently observe impunity. It also diminishes the value of those who forego the temptation to cross into the realm of illegality, even at great risk to themselves and their subordinates. As Retired U.S. Marine Corps General John R. Allen eloquently stated in a 2016 speech:

The tool that helps preserve each soldier’s moral compass, the tool that allows them to wreak destruction, to engage in warfare that, despite our best efforts, lawfully kills and maims innocent men, women and children, and yet allows them to be able sleep at night, and to look themselves in the eye every day for the rest of their lives—is this body of law.⁷⁹

Effective law requires accountability: “[j]ust and fair consequences for violations safeguard overall fidelity to the law, contributing to the good order and discipline of military units.”⁸⁰ Furthermore, accountability for violations, and hence overall compliance with the LOAC, lays the moral foundation of the U.S. armed forces—“[w]e obey LOAC because we cannot allow ourselves to become what we are fighting and because we cannot be heard to say that we fight for the right while we are seen to commit wrongs.”⁸¹

B. Why Military Instead of Civilian Prosecutions for War Crimes

Domestic courts, and historically military courts, remain the principal fora for prosecuting war crimes around the globe.⁸² Having military courts prosecute war crimes has long been understood as having the most significant deterrent and regulatory effect on military members,⁸³ who of course are the individuals most likely to commit war crimes. In U.S. practice, subjecting service members to prosecution in courts-martial for misconduct that violates the laws and customs of war dates back to the American Revolution.⁸⁴ Indeed, the Lieber Code (General Orders No. 100 issued at the direction of President Lincoln) specifically indicated that the military justice system should be used to punish infractions of its enumeration of rules of conduct based on the laws and customs of war, the world’s first.⁸⁵ This was ultimately manifested in the military prosecutions for violations of the laws of war of more than 1,000 Confederate soldiers following the Civil War.⁸⁶

U.S. federal civilian courts’ concurrent jurisdiction over war crimes prosecutions does not diminish the normative preference for military courts.⁸⁷ These tribunals—courts-martial when the accused is a member of the U.S. armed forces subject to the UCMJ (in contrast to the use of military commissions to try captured enemy personnel for pre-capture war crimes)⁸⁸—make sense because for centuries they have served as the preeminent means to attain individual accountability for all service-member misconduct.⁸⁹ Military courts’ deterrent effect and important role as a command tool for maintaining good order and discipline make them an integral component of the U.S. military.⁹⁰

Contemporary assessments of our military justice system note its evolution from a system of harsh and often grossly unfair discipline, to one with procedural safeguards that in some respects exceed those found in the U.S. civilian federal criminal system.⁹¹ War crimes are simply one variant of military criminal conduct, and it is therefore pragmatic and logical to leverage this carefully crafted system to ensure credible accountability for such misconduct.⁹² Courts-martial have long contributed to the development and maintenance of unit effectiveness by reinforcing military discipline, to include compliance with the LOAC.⁹³ Accordingly, the stated U.S. military policy remains the same today as it has for the last two centuries: military courts serve as the primary means to prosecute U.S. service members accused of crimes, including serious violations of the LOAC.⁹⁴

When physically in the United States, military members are often subject to both military and civilian criminal jurisdiction; it is not uncommon for civilian state (and federal) prosecutors to exercise that jurisdiction over service members for non-military-related crimes committed in the United States such as child pornography, fraud, etc.⁹⁵ In marked contrast, the exercise of federal civilian jurisdiction for offenses committed by active-duty U.S. service members participating in military operations abroad, while provided for in the federal criminal code, is extremely uncommon. Instead, federal jurisdiction has been leveraged primarily for former service members whose previous criminal misconduct is not discovered until after the termination of military jurisdiction (which ends upon discharge from military service).⁹⁶

The federal prosecution of war crimes committed by an American serviceman in Mahmudiya, Iraq during the Iraq War exemplifies this atypical exercise of U.S. federal criminal jurisdiction over a former service member.⁹⁷ The U.S. Department of Justice convicted Steven Green in U.S. federal civilian criminal court of federal common law crimes—not of committing war crimes, though his acts certainly qualified as such, but instead of raping a fourteen-year-old Iraqi girl and murdering her and her family in Iraq.⁹⁸ Green was no longer in the military when his crimes came to light, but federal law provided extraterritorial reach of U.S. federal law, thus allowing his prosecution in civilian court.⁹⁹

Interestingly, the Department of Justice has never utilized the federal War Crimes Act¹⁰⁰—which in 1996 belatedly implemented the U.S. obligation to enact domestic penal legislation for grave breaches under all four Geneva Conventions—to convict anyone of any crime.¹⁰¹ Instead of turning to this Act, in 2018 federal prosecutors (after numerous failed attempts) successfully convicted a former U.S. Department of Defense security contractor of murder for his role in a 2007 massacre of fourteen Iraqi civilians in Baghdad.¹⁰² As in the aforementioned United States v. Green¹⁰³ civilian criminal case, the government once again pursued the federal crime of murder instead of an offense under the War Crimes Act, leaving this Act in complete desuetude.¹⁰⁴

With Green as a rare exception, military courts-martial continue to be the primary, and presumptively exclusive, prosecutorial venue for the vast majority of crimes committed by U.S. service members, particularly for those service members alleged to have committed grave breaches and other serious LOAC violations—in other words, for war crimes. Accordingly, it is essential that the UCMJ provide military leaders the tools they need to ensure effective military criminal sanctions for such criminal behavior. The current system risks diluting the many interests implicated by such offenses and requires the straightforward reform proposed in this Article.

Despite the obvious pragmatic and disciplinary advantages of relying on the military justice system to prosecute war crimes allegedly committed by U.S. service members, the recommendations in this Article are made with the awareness of growing unease, both international and domestic, with the legitimacy of military justice systems.¹⁰⁵ Procedural fairness concerns and the mishandling of sexual assault cases and other non-military crimes have prompted much of this discomfort.¹⁰⁶ Critics have also articulated concerns regarding war crimes accountability.¹⁰⁷ Reflective of the more general unease with military justice systems, a 2013 United Nations Special Rapporteur recommended that military tribunals should be limited to crimes of a “strictly military nature” that “relate exclusively to legally protected interests of military order, such as desertion, insubordination, or abandonment of post or command.”¹⁰⁸

In the United States, scrutiny of the military justice system, including increased congressional oversight, has been substantial—seemingly more extensive than the attention devoted to the civilian criminal justice system.¹⁰⁹ Perhaps because of such interest, the American military justice system generally provides fair and credible adjudication of allegations of criminal misconduct (to include substantial procedural safeguards for those accused of such misconduct); it also offers the greatest incentive to ensure accountability for battlefield misconduct, never-mind experience with battlefield conditions.¹¹⁰ As with any system of justice there is certainly room for improvement,¹¹¹

reform.blogspot.com/2020/04/shadow-advisory-report-submitted-to.html (recommending that prosecutorial discretion be vested in military lawyers for felonies instead of non-lawyer commanders); Rachel E. VanLandingham & Geoffrey Corn, Two for One: The Ethical Pursuit of Justice in the Military, and Battlefield Success, Through Joint Prosecutorial Decisions, 45 Sw. L. Rev. 495, 495 (2016) (analyzing proposals to remove prosecutorial discretion from non-lawyer commanders and recommending retention of limited command role in this arena); see also Fidell, supra note 91, at 865 (recommending improved access to the U.S. Supreme Court and standing courts-martial). but the overall credibility of this system explains why it routinely receives great deference from the U.S. Supreme Court and lower federal appellate courts.¹¹² Congress should not overlook the opportunity to build on this solid foundation to enable the military justice system to achieve its full potential in relation to war crimes accountability.

C. The Contemporary U.S. Military Approach to War Crimes

The seriousness of a nation’s commitment to the rule of law generally, and to the LOAC specifically, is indicated in large measure by how it responds to violations of this law by members of its own armed forces. The deterrent effect of domestic prosecution of war crimes is greater—at least when such prosecutions are considered fair—than that of international tribunals’ prosecutions of those crimes, hence the complementarity rule found in the International Criminal Court’s Rome Statute; this rule limits the tribunal’s jurisdiction to cases where a national legal system cannot or will not hold appropriate proceedings.¹¹³

However, there is skepticism as to the U.S. commitment to LOAC accountability, in part due to the fact that service members are never charged with offenses labeled as war crimes, at least not since the 1950 creation of the UCMJ (with two little-known Vietnam War exceptions).¹¹⁴ The consistent practice and stated policy has been to instead allege violations of offenses enumerated in the punitive articles of the UCMJ which, while addressing the same basic underlying misconduct prohibited by international law, are titled as common law offenses.¹¹⁵ By policy, commanders’ legal counsel advise them to charge the misconduct as a violation of the UCMJ’s punitive articles and not as a war crime per se.¹¹⁶ This practice of charging such common law-type offenses instead of actual war crimes may make pragmatic sense, as the former are both enumerated and well understood; this practice does not, ipso facto, indicate a lack of commitment to accountability.

A little background is in order. Congress is vested with the constitutional authority to dictate whether or not conduct by a member of the armed forces is subject to criminal sanction pursuant to the UCMJ.¹¹⁷ In 1950, Congress unified military criminal law into a “uniform” system for all the armed forces (and the small category of individuals subject to military jurisdiction even though not members of the armed forces, such as prisoners of war and civilians accompanying the force in the field) by enumerating punitive articles in the UCMJ.¹¹⁸ Since then, Congress has occasionally amended the punitive articles, with significant reform occurring most recently through the Military Justice Reform Act of 2016.¹¹⁹

When Congress adopted the UCMJ, the Senate was also considering whether to give advice and consent to the President to ratify the four Geneva Conventions of 1949.¹²⁰ One of the significant developments reflected in these four treaties, three of which updated their 1929 predecessors, was the inclusion of a provision in each Convention requiring state parties to adopt penal legislation to punish any individual responsible for committing what the treaties defined as a “grave breach.”¹²¹ By ratifying these four treaties, the U.S. committed itself to adopting such domestic penal laws providing criminal jurisdiction for the prosecution of such grave breaches, jurisdiction that was supposed to extend to any person found within the United States.¹²²

The Senate concluded that the UCMJ was sufficient to cover such crimes (in other words, that the UCMJ provided the treaty-required jurisdiction) and thus consented to the Conventions.¹²³ Because of this conclusion, Congress did not take further action regarding the enumeration of grave breaches or other war crimes in the extant UCMJ’s punitive articles.¹²⁴ This lack of further legislation at the time was not extraordinary. Several scholars have noted that “[m]ost High Contracting Parties comply with the common Article’s domestic legislation requirement through their military justice systems.”¹²⁵

As the Senate realized when consenting to the Geneva Conventions, while the UCMJ has never enumerated serious violations of the LOAC as specific offenses, the UCMJ does explicitly grant general courts-martial both subject matter and personal jurisdiction for war crimes charged as war crimes through UCMJ Articles 18 and 21.¹²⁶ The Rules for Courts-Martial (RCM), which the President provides in the Manual for Courts-Martial (MCM),¹²⁷ implement these articles and provide, inter alia, that “[g]eneral courts-martial may try any person who by the law of war is subject to trial by military tribunal for any crime or offense against . . . [t]he law of war.”¹²⁸ However, despite this grant of jurisdiction to a general court-martial to prosecute a U.S. service-member under the UCMJ for an actual war crime, for reasons of prosecutorial efficiency, it is U.S. policy to allege enumerated UCMJ offenses to address such misconduct.¹²⁹

While we detail below why such prosecutorial policy is not sound, it does lend greater simplicity to the prosecutorial process. For example, imagine an incident where a U.S. soldier summarily executes an enemy prisoner of war.¹³⁰ This is about as clear an example of a war crime as one might imagine—a grave breach of the Geneva Convention Relative to the Treatment of Prisoners of War.¹³¹ Pursuant to the UCMJ and the MCM, a military prosecutor theoretically could craft a war crimes charge alleging a violation of the Third Geneva Convention.¹³²

If charged as a war crime, subject matter jurisdiction would require proof that the killing occurred in the context of an international armed conflict within the meaning of Common Article 2 of the Conventions and that the victim qualified as a prisoner of war pursuant to Article 4 of the third Geneva Convention. With no enumerated penalty for this offense, the military judge would be required to fashion a maximum permissible punishment, as well as instructions for this novel crime. In contrast, if charged as a violation of Article 118 of the UCMJ (as it was in the case of U.S. Army Lieutenant Michael Behenna, who was pardoned in 2019 after being convicted for killing a detainee in Iraq),¹³³ these jurisdictional challenges disappear; the MCM enumerates the minimum and maximum punishment, and standard and tested jury instructions are readily available.¹³⁴

Yet the easy way is not always the best way. Though simpler for the military prosecutor, treating war crimes as common law-type crimes significantly contributes to the perception that the United States fails to pursue just and full accountability for its service members’ war crimes, as the discussion below explains.

II. Amending the UCMJ to Include Recognized War Crimes

A. UCMJ Versus Military Commissions Act

While Congress decided in 1950 not to specifically enumerate war crimes in the newly-minted UCMJ, it did so later—just not for U.S. military personnel.¹³⁵ Fast-forward over five decades from the UCMJ’s codification to immediately following the terrorist attacks on September 11, 2001, when President George W. Bush ordered the Secretary of Defense to create a military commission to try to capture al Qaeda and Taliban personnel for violations of the laws and customs of war.¹³⁶ The Department of Defense executed this order through the instructions and regulations that created the first military commission to try alleged war crimes since the post-World War II era.¹³⁷ One of the first defendants before this commission, Salim Hamdan, challenged the legality of the tribunal based on both a substantive and procedural argument.¹³⁸ Hamdan argued that conspiracy to commit war crimes he was alleged to have participated in was not itself a war crime subject to the jurisdiction of a “law of war” military commission.¹³⁹ The Supreme Court ruled in his favor, specifically concluding that “at least in the absence of congressional authorization” the government had failed to prove that conspiracy to commit war crimes was an offense in violation of the laws and customs of war within the war crimes jurisdiction of a military commission.¹⁴⁰

In response, Congress chose to provide specific statutory authority for military commissions for individuals who, like Hamdan, were captured in the context of what the United States considered an armed conflict and also, like Hamdan, failed to qualify as prisoners of war.¹⁴¹ This effort culminated in the Military Commissions Act of 2006 (MCA). This original version of the MCA extended jurisdiction to what it defined as “unlawful enemy combatants,”¹⁴² which was later amended in 2009 to “unprivileged enemy belligerent[s]”; both terms covered the identical captives: those who stood in the same position as Hamdan.¹⁴³

The MCA established subject matter and in personam jurisdiction over unprivileged enemy belligerents, as well as comprehensive procedures and rules of evidence for such trials.¹⁴⁴ But unlike its predecessor created by the Department of Defense, Congress chose not to leave the subject-matter jurisdiction of this new tribunal to the common law of war. Congress understood that pursuant to both longstanding U.S. practice and the Supreme Court’s decision in Hamdan v. Rumsfeld,¹⁴⁵ a military commission convened as a “law of war” court could properly exercise jurisdiction only for offenses in violation of the laws and customs of war (war crimes).¹⁴⁶ Accordingly (and central to this Article), the MCA included a section enumerating offenses falling within military commission jurisdiction, thus providing a clear indication of what misconduct Congress believes constitutes war crimes.¹⁴⁷

This enumeration of war crimes for a specific class of enemy belligerents stands in stark contrast to the UCMJ’s complete dearth of such offenses for U.S. service members. While reliance on the common law of war through Article 18 or punishment for the substance of war crimes by prosecution for violations of the UCMJ may have been acceptable to Congress in 1950, it is difficult to justify the omission of enumerated war crimes applicable to U.S. forces when Congress has since enumerated them for punishment of enemy captives. The MCA’s enumeration should provide clarity and momentum for incorporating war crimes into the UCMJ’s punitive articles. Doing so will not only enhance the ability to treat war crimes as such but will also reflect an appropriate symmetry between the accountability for U.S. and captured personnel alike, given that it is the same body of law—the LOAC—that is being addressed.

B. Now Is the Time to Enumerate War Crimes in the UCMJ

1. Adhering to criminal law logic

The lack of enumerated war crimes within the UCMJ functionally prevents the military justice system from punishing war crimes as war crimes.¹⁴⁸ Treating war crimes as common law murders, rapes, or other crimes that could just as easily occur in the peacetime zone of Main Street, USA as in an armed conflict zone such as My Lai, Vietnam distorts the true gravamen of the misconduct and fails to clearly signal accountability for violations of the laws and customs of war. Failing to convict military offenders for their actual war crimes prevents punishing the true nature of the offense. Part of the harm inflicted by a war crime—e.g., the violation of the important and near-universally accepted international rules of conduct in armed conflict—is simply not part of any crime a military offender is currently found guilty of violating.

In essence, the unique social harm of a war crime is mischaracterized and greatly minimized when charging such a crime as a common law offense.¹⁴⁹ This contradicts the basic equation of criminal culpability and accountability: actus reus, mens rea, and attendant circumstances, all elements of crime designed to capture the social harm of particular conduct plus the moral culpability of the offender.¹⁵⁰ War crimes, unlike common law analogues, represent a different nature of societal offense; as violations of international law, they harm not merely the victim, but also military society, as well as the international order.¹⁵¹ By failing to arm the military justice system with enumerated war crimes to allow for the imposition of such accountability, the penological purposes of criminal law—primarily deterrence and retribution—are undermined.¹⁵² Accordingly, a war crime should be prosecuted as a war crime and, where supported by sufficient evidence, condemned as such.¹⁵³

2. Countering stain of Guantanamo Bay

An alignment between punitive accountability for war crimes for both U.S. and enemy personnel will also enhance U.S. credibility regarding subjecting captured enemy personnel to prosecution for enumerated offenses. As the ongoing military commission litigation has demonstrated, there is (amongst other significant criticisms¹⁵⁴) controversy over the validity of designating some of the offenses in the MCA as war crimes, in particular conspiracy to violate the law of war and material support for terrorism.¹⁵⁵ Incorporating war crimes into the UCMJ would force Congress to carefully assess whether it believes what is “good for the goose” (the captured enemy) is also “good for the gander” (the U.S. service-member).¹⁵⁶

This could produce two outcomes. First, Congress could decide to enumerate all the offenses currently included in the MCA, which would add significant weight to the government position that these offenses fall within the scope of what has labeled the U.S. common law of war. Second, Congress might reconsider its prior decision to characterize these offenses as war crimes when the potential defendants are U.S. service members,¹⁵⁷ which would suggest removing them from the jurisdiction of the military commission. That is, our elected leaders may be more discerning about the definition of war crimes—particularly whether such crimes include the MCA crimes of conspiracy to violate the law of war and material support to terrorism—when the potential subjects of prosecution are members of our own armed forces. If Congress chose to omit these controversial offenses from incorporation into the UCMJ, it would send a powerful signal that they never were legitimately included within the scope of military commission jurisdiction in the first place and add greater legitimacy to prosecutions going forward.

3. Countering efforts risking noncompliance

As noted in this Article’s Introduction, in 2019 President Trump pardoned several U.S. service members convicted of conduct that constituted war crimes under the MCA and customary international law.¹⁵⁸ In addition, President Trump publicly ridiculed the military’s accountability efforts for soldiers accused of war crimes.¹⁵⁹ Previously, as a presidential candidate, Mr. Trump also publicly advocated for conducting military operations in a manner that would result in war crimes, and the public has perceived his statements as President as advocating the same.¹⁶⁰ Mr. Trump while the sitting President also indicated that he wanted such convicted, now-pardoned, war criminals to help him campaign for re-election.¹⁶¹

Many view such a pattern of pardoning convicted war criminals, truncating prosecutions, and celebrating misconduct as condoning war crimes¹⁶²—because that is exactly what it is.¹⁶³ That particular Commander-in-Chief made every military leader’s job more challenging when training her soldiers, marines, sailors, and airmen to obey the LOAC. Furthermore, President Trump potentially eroded the military justice system’s efficacy at holding such service members accountable for their misconduct. This indifference to and tolerance of battlefield misconduct, which some vocal advocates supported,¹⁶⁴ may very well disincentivize service members from appropriately reporting LOAC violations that their peers commit. Furthermore, the blunt messages—of might makes right and damn the law—inherent in such actions complicates the ability of military leaders at every echelon to impose accountability for LOAC violations and encourage adherence to LOAC itself.

There is no guarantee that this pattern of presidential response to these incidents would have been any different had our proposal been previously implemented. However, perhaps the Commander-in-Chief of the armed forces would have been more hesitant to engage in such interventions had the offenses he was addressing been clearly and unambiguously labeled and prosecuted as war crimes. Indeed, the increased gravitas accordant in that characterization is the thread that runs through all the recommendations in this Article—a weight that will ideally lead to greater consideration of the impact of such high-level interventions on good order and discipline, legally compliant military operations, and command authority in the most demanding of missions.

4. Reversing current policy’s illegitimacy effect

Starting with the Vietnam War, the U.S. military has frequently been accused of indifference or insufficient response to its service members’ war crimes.¹⁶⁵ Such criticisms are due to myriad factors, such as (1) the increased media access to combat operations and explosion of communications technology since the onset of the Vietnam War;¹⁶⁶ (2) the increased exposure of civilians to battlefield operations given the nature of the conflicts the United States has engaged in since the Korean War;¹⁶⁷ (3) the increased complexity and promulgation of the LOAC, particularly governing targeting, since World War II;¹⁶⁸ (4) the realization by opponents that allegations of war crimes can erode the domestic and international legitimacy of U.S. combat operations;¹⁶⁹ (5) the unfortunate impact of President Trump’s apparent disinterest in requiring strict adherence to the LOAC;¹⁷⁰ and (6) the failure to prosecute war crimes as war crimes.

These criticisms have continued long past Vietnam, and they remain with us today.¹⁷¹ The reality is that such criticisms—that the U.S. military fails to appropriately investigate and punish war crimes—occasionally have merit.¹⁷² Indeed, the high-profile war crimes committed in the hamlets of My Lai and Son Thang during the Vietnam War, and the subsequent handling of these tragedies, spurred the creation of the Department of Defense’s Law of War program.¹⁷³ This program emphasizes preventive measures ranging from training to incident reporting,¹⁷⁴ all of which ideally enhance command accountability efforts.

Nonetheless, implementation of these obligations has not always been ideal. For example, the mistakes associated with the tragic massacre of Iraqi civilians in 2005 in Haditha, Iraq by U.S. Marines resulted in departmental-level soul-searching and recommendations for reform.¹⁷⁵ And some credible efforts to impose accountability have also been compromised by the exercise of the pardon power or preemptive presidential action that terminated accountability processes. While clearly within the scope of the President’s constitutional authority, such interventions contribute to the broader misconception of war crimes impunity, and they risk producing a chilling effect on service members regarding bringing war crimes to light.¹⁷⁶

The broader record is, however, much more aligned with genuine commitment to accountability. In every armed conflict, including Vietnam, incidents of suspected war crimes by U.S. service members have been investigated and many service members have been tried by court-martial for violations of the UCMJ that could have also been charged as war crimes.¹⁷⁷ While some of these cases have triggered substantial public interest and calls for both greater and lighter punishment—and most credibly, for greater accountability for those higher up the chains of command—they demonstrate that assertions that U.S. commanders and the military lawyers who advise them regularly ignore credible allegations of war crimes, other than the exceptional case, are usually not accurate.¹⁷⁸

However, in a world where legitimacy is recognized by civilian leaders and military commanders as a key principle of effective military operations, and where information plays an increasingly significant role in strategic and operational success, perception is often as important—if not more important—than reality. To help counter perceptions of impunity and to appropriately capture the full harm of war crimes, Congress should enumerate war crimes in the UCMJ’s punitive articles. Doing so will provide the clarity and simplicity in charging and prosecuting such offenses that already exists for current enumerated offenses, thereby facilitating charging misconduct as the war crimes they constitute. This will strengthen accountability measures and more clearly align perception and reality of U.S. commitment to the LOAC.

5. Influencing evolution of the Law of Armed Conflict

International law is not static, and the United States has a legitimate role as a member of the community of nations in contributing to its evolution.¹⁷⁹ Congress plays an important role in that evolution through the exercise of its enumerated constitutional authority to “define and punish” offenses in violation of the law of nations.¹⁸⁰ Incorporating the MCA’s war crimes into the UCMJ will ideally contribute to this evolution by allowing Congress to periodically reconsider the nature of offenses it determines fall within the scope of war crimes jurisdiction.¹⁸¹

The scope of this define and punish authority has concededly been the subject of intense debate in the context of military commission litigation.¹⁸² However, while there is clearly some limit to what Congress may designate as a war crime pursuant to this authority, designating offenses as war crimes subject to trial by court-martial or military commission undoubtedly influences the formation of international law. Accordingly, incorporating war crimes into the punitive articles of the UCMJ with the accordant debates this will generate, coupled with periodic review of these offenses and consideration of adding new offenses, could positively contribute to the formation of international law.¹⁸³

C. Policy Recommendation: Incorporate MCA Provisions into the UCMJ

Because of the MCA, there is an obvious disparity between how the United States addresses accountability for war crimes committed by its own personnel compared to accountability for its captured enemy. For unprivileged enemy belligerents subject to the jurisdiction of the MCA, prosecutors may allege specifically enumerated offenses in the MCA. Even if the U.S. military sought to try a future captured enemy who does not come within the jurisdiction of the MCA—such as a captured enemy soldier who qualifies as a prisoner of war¹⁸⁴—the MCA’s enumerated offenses would almost certainly be relied on to craft an offense in violation of the common law of war subject to trial by military tribunal pursuant to Article 21 of the UCMJ.¹⁸⁵ In stark contrast, as explained earlier, U.S. service members are never prosecuted for actual war crimes under the current statutory scheme and customary practice.¹⁸⁶

Other than convenience and rote adherence to past practice, there seems to be no compelling justification for the continued omission of enumerated war crimes in the UCMJ. There is no rational reason why the statutory basis for war crimes accountability should be different for U.S. military personnel than it is for captured enemy personnel. Because accountability for war crimes is intended to be nationality-neutral, and because war crimes by members of one’s own armed forces are corrosive to good order and discipline, justifying this disparity on nationality of the alleged wrongdoer lacks merit. Indeed, the commentary to the First Geneva Convention notes that the grave breaches proceedings should be uniform whatever the nationality of the accused, and it prohibits special tribunals for the enemy.¹⁸⁷

Accordingly, Congress should amend the UCMJ by incorporating the punitive articles of the MCA. The MCA offenses should be utilized because they represent the most obvious manifestation of what Congress considers war crimes subject to trial by military tribunal.¹⁸⁸ There are no viable alternatives. The federal War Crimes Act is severely under-inclusive and therefore is not a helpful template. While other scholars have recommended incorporating war crimes listed in the charters of international tribunals such as the International Criminal Court,¹⁸⁹ there is simply no need to reach outside of current federal law to international bodies. These tribunals’ delineated list of war crimes do not significantly differ from the MCA, outside of the MCA’s controversial war crimes of conspiracy, terrorism, aiding the enemy, and material support for terrorism.

As alluded to previously in this Article, the validity of designating these offenses—conspiracy, terrorism, aiding the enemy, and material support for terrorism—as war crimes is questionable, and has been the subject of substantial litigation.¹⁹⁰ While conspiracy and aiding the enemy are existing enumerated UCMJ offenses, this in no way supports extending them to the realm of enumerated war crimes. As existing offenses in the punitive articles of the UCMJ, they apply only to those individuals subject to the UCMJ, meaning the jurisdiction for prosecuting these offenses is not derived from international law, but from U.S. military law.

Accordingly, there is no jurisdictional analogy between these existing UCMJ offenses and an extension of these offenses to an enumeration of war crimes in the Code. Whether such offenses should be included in the war crimes enumeration recommended herein must be based on the status of such offenses as violations of the laws and customs of war. Because the assertion of such status remains dubious and hotly contested, the MCA offenses of terrorism and material support for terrorism should not be included in the addition of enumerated war crimes in the UCMJ’s punitive articles.¹⁹¹ Furthermore, because of the uncertainty as to the validity of including these specific offenses within the scope of military commission law of war jurisdiction, Congress should also consider removing terrorism, material support for terrorism, conspiracy, and aiding the enemy from the enumerated offenses in the MCA. While we recognize the government has achieved some success in defending the validity of this expansion of law of war-based military commission jurisdiction,¹⁹² we believe the “mirror image” approach to war crimes proposed herein will be better served if Congress limits military commissions jurisdiction to those war crimes it believes should apply to members of our own armed forces.

Additionally, enumeration of a finite number of war crimes based on the MCA’s extant list would not foreclose the opportunity to allege other war crimes based on emerging norms of international law. This issue is easily addressed by inclusion of a residual provision in the enumerated set of offenses, one indicating that any other offense in violation of the customary laws of war is subject to prosecution. In essence, this provision would preserve the existing jurisdiction of both military commissions pursuant to Article 21 of the UCMJ and general courts-martial pursuant to Article 18.¹⁹³

Furthermore, incorporating MCA war crimes into the UCMJ should be complemented by amending the MCA itself to expand its in personam jurisdiction. There is no reason to continue the MCA’s narrow jurisdictional aperture, one that extends only to those unprivileged enemy belligerents associated with al Qaeda or the Taliban.¹⁹⁴ If the offenses enumerated in the MCA legitimately reflect war crimes subject to trial by military tribunal, and if Congress incorporates such offenses into the UCMJ, they logically should apply to any captured enemy in any armed conflict, to include privileged enemy belligerents (prisoners of war) whose pre-capture conduct exceeds the scope of their combatant immunity. Expanding the statutory authority to utilize military commissions to try captured enemy personnel for allegations of war crimes that aligns with the jurisdiction established over U.S. service members will facilitate accountability for all war criminals based on a consistent standard.¹⁹⁵

Finally, though the numbers are historically exceedingly small, war crimes committed by American civilians, including U.S. service members whose war crimes were not discovered until after they left active duty, should ideally be tried as war crimes under federal criminal law, and not as common law crimes. The same policy and legitimacy reasons as those discussed above regarding prosecuting service members for actual war crimes, versus simply for murder or rape, strongly support such “war crimes as war crimes” prosecutions for civilians as well. While 18 U.S.C. § 2441 (2006), the War Crimes Act, provides a viable mechanism for charging civilians with war crimes (though it also could benefit from greater enumeration analogous to the MCA), another federal statute—18 U.S.C. § 3261 (2000), the Military Extraterritorial Jurisdiction Act (MEJA)—has been the statute of choice for prosecuting American civilians (including former service members no longer subject to the UCMJ) with common law-type federal crimes, despite their misconduct also qualifying as war crimes, as demonstrated by the Green and Blackwater prosecutions.¹⁹⁶ Congress should amend MEJA to establish a presumption that misconduct that constitutes war crimes pursuant to 18 U.S.C. § 2441 be charged as a violation of that provision (the War Crimes Act), with resort to MEJA reserved for only those cases where jurisdictional impediments or the interests of justice demand. MEJA, in turn, should be used primarily to address overseas misconduct that does not qualify as an offense in violation of the War Crimes Act.¹⁹⁷

D. Policy Recommendation: Close Command Responsibility Loophole

Any legislative reform of military war crimes accountability should include the addition of a command responsibility mode of liability provision to the UCMJ. A commander’s knowing or negligent failure to exercise responsible command is far graver than other misconduct punished by dereliction convictions. It is an omission morally equivalent to the ordering of the war crimes themselves, and thus should impute the war crimes to the commander as if he had ordered, assisted with, or otherwise physically committed them himself.¹⁹⁸ International criminal law’s doctrine of command responsibility liability provides the vehicle for doing so.

1. Current UCMJ accomplice liability

As mentioned earlier, the UCMJ treats responsible command duty as any other military duty, one subject to a criminal dereliction of duty prosecution for knowing or negligent failure to exercise these duties.¹⁹⁹ In other words, failure by U.S. commanders to fulfill “command responsibilities” results in unjustifiably limited criminal liability under the UCMJ²⁰⁰ unless the evidence establishes the shared criminal intent required for aiding and abetting liability. Thus, even if a commander “should have known” subordinates were likely to commit war crimes and her failure to take appropriate disciplinary or corrective action contributed to those war crimes, the commander would not be criminally responsible for the war crime itself.²⁰¹ It is important to note that it is almost unheard of that a U.S. military commander today will be disciplined for, never mind criminally charged with, dereliction of duty offenses related to the commander’s responsible command duties.²⁰²

While international criminal law allows for imputed liability for subordinates’ war crimes due to a commander’s responsible command failures, the UCMJ does not. The UCMJ only imputes liability for the war crimes physically committed by others to aiders and abettors of those crimes, aligned with traditional common law accomplice principles.²⁰³ Article 77 of the UCMJ provides in pertinent part that “a person need not personally perform the acts necessary to constitute an offense to be guilty of it. A person who aids, abets, counsels, commands, or procures” an offense is guilty of that offense.²⁰⁴ However, he or she must also possess a mental state of wanting the assisted crime to be achieved: the assistor must “[s]hare in the criminal purpose or design.”²⁰⁵

This accomplice mode of liability fails to capture the larger field of imputed liability found in the international criminal law theory of command responsibility because of this mental state (mens rea) element. In the UCMJ’s mode of accomplice liability, a defendant need not only assist the target crime in some manner as described above—the defendant has to desire its accomplishment. Only a commander who willfully contributes to the commission of a war crime by a subordinate—meaning that the commander not only had actual knowledge that the crime was going to be committed but also shared the criminal intent for its commission—is criminally responsible for that crime as if she committed it.²⁰⁶ Absent proof of that specific intent, liability for a subordinate’s war crimes cannot be established.²⁰⁷

2. Command responsibility

The UCMJ’s accomplice mode of liability stands in contrast to the international criminal law doctrine of command responsibility, which this Article mentioned earlier is a mode of liability developed to reinforce the LOAC’s tenet of responsible command.²⁰⁸ This criminal law analogue to the LOAC’s responsible command doctrine imposes vicarious criminal liability on commanders for their subordinates’ war crimes; it requires that a commander knew, or reasonably should have known, that such crimes would occur and that this commander failed to prevent, suppress, or punish (take appropriate action within the commander’s power) said war crimes.²⁰⁹

While this doctrine of vicarious criminal responsibility for commanders resonated in post-World War II U.S. Supreme Court jurisprudence²¹⁰ and is considered customary international law, the UCMJ fails to expressly include it, and military jurisprudence has seemingly excluded it.²¹¹ The UCMJ should be revised to include this mode of liability, and we now explain the what and the why of such revision.

Command responsibility builds upon the duties imposed on commanders by the canon of responsible command and is a mode of liability for war crimes that subjects a commander to liability for crimes committed by her subordinates.²¹² It is a distinct mode of vicarious criminal liability, one based on a reckless omission to fulfill the responsible command duty to control subordinates, instead of based on the accomplice’s act plus shared intent to commit a crime.²¹³ Command responsibility liability makes commanders criminally liable for their subordinates’ serious violations of the LOAC if they knew or should have known of their subordinates’ forthcoming criminal violations and failed to take “necessary and reasonable measures” to prevent or stop it.²¹⁴ Furthermore, they are also liable for such crimes when they knowingly or negligently fail to appropriately punish commission of war crimes—that is, when they fail to discharge the third leg of the responsible command triad of duties.²¹⁵

Regarding this third duty, command responsibility makes commanders liable for their subordinates’ war crimes if the commander fails to take reasonable steps to investigate and “punish” subordinates’ war crimes that the commander knew or should have known had occurred.²¹⁶ This third dimension of LOAC’s concept of responsible command reflects the expectation that commanders will exercise due diligence in response to indications of prior subordinate misconduct. As mentioned in Section I.A.1, the expectation is that commanders will take the appropriate investigative, reporting, or prosecutorial actions that are within their power; vicarious liability is predicated on a commander’s failure to take reasonable actions within the scope of his or her extant command authority.²¹⁷

If a commander lacks prosecutorial authority, liability based on failure to punish is based only on his or her failure to investigate or report. This is important to note, given the strained arguments by some that command responsibility is somehow unfair to impose on U.S. commanders if they do not also possess prosecutorial discretion to refer charges to courts-martial.²¹⁸ Such an argument is without merit because, first, most commanders on the ground leading troops—the leaders most directly responsible for ensuring LOAC compliance, such as at the battalion level—already lack such authority to convene general courts-martial given that this authority is almost always vested in three- and four-star flag officers, not at the field grade battalion level.²¹⁹ Despite not having felony-level prosecutorial authority, commanders still must fulfill all of their responsible command duties. Second, the LOAC never envisioned the responsible command duty to punish as literally meaning the commander herself has to wield prosecutorial discretion.²²⁰ Third, obviously Congress already concluded it is fair to impose command responsibility on commanders who lack prosecutorial discretion, given that they included it as a mode of responsibility for unlawful belligerents in the MCA—individuals who do not possess prosecutorial authority, as explained in the next section.

There is no good reason why the UCMJ should continue to omit this doctrine of international war crimes accountability. The laws and customs of war imposes a duty on commanders, like Admiral Yamashita in the Philippines during World War II, Captain Ernest Medina in the village of My Lai, Vietnam, and Marine Lieutenant Colonel Jeffrey Chessani in Haditha, Iraq, to effectively and responsibly command their subordinates.²²¹ The failure to do so—that is, to take effective measures to prevent foreseeable subordinate misconduct or failure to report, investigate, and punish such crimes—is more than a mere dereliction of duty. It is a sufficient contribution to their subordinates’ war crimes to justify extending responsibility to the derelict commander for the crimes themselves, thus constituting an explicit recognition of the incredible importance of this duty.

3. Use the MCA to amend the UCMJ

Ironically, Congress has demonstrated its support for this mode of liability by including it in the MCA. As a result, like our proposal related to substantive war crimes enumerated in the MCA, adding command responsibility to the UCMJ is a simple exercise of cutting and pasting from the extant MCA. Congress need only amend Article 77 to align it with the scope of principal liability established in section 950q of the MCA, which provides:

Principals

Any person punishable under this chapter who—

(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;

(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or

(3) is a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or should have known, that a subordinate was about to commit such acts or had done so and who failed to take the necessary and reasonable measures to prevent such acts or to punish the perpetrators thereof,

is a principal.²²²

III. The Need for New Affirmative Defenses & Other Fixes

One of the consequences of relying almost exclusively on the currently enumerated UCMJ offenses to address incidents that also qualify as war crimes is that, like the available offenses, the range of available defenses are also common law-based. In the abstract, this seems logical, as these defenses derive from the same common law foundation as the offenses to which they relate. However, when these common law offenses are utilized to impose accountability on service members for alleged battlefield misconduct, the established defenses are inadequate to address the armed conflict context of such crimes.

Extant common law defenses fail to take into account the belligerent nature of the situation that gave rise to the underlying charged misconduct. The current military law defenses insufficiently address the contextual reality of alleged war crimes, just as the current UCMJ offenses fail to do so on the other side of the equation.²²³ Congress should therefore consider supplementing the Code with at least the below affirmative defense.

A. Reasonable Mistakes as to What Qualifies as “Unnecessary” Suffering

1. Legal ambiguity of unnecessary suffering

One of the LOAC’s cardinal principles is the prohibition against the infliction of unnecessary suffering.²²⁴ The roots of this principal run deep in the both customary and treaty law.²²⁵ As originally codified, the rule prohibited the “calculated” infliction of unnecessary suffering, and this “calculation” element is still central to the U.S. interpretation of the prohibition.²²⁶ However, for state parties to the Additional Protocol I to the Geneva Conventions of 1949, this prohibition applies to any method or means of warfare intended to cause or “of a nature” to cause unnecessary suffering.²²⁷ This broader definition includes not only the calculated or intended infliction of unnecessary suffering, but also what appears to be more of an objective standard: was the method or means reasonably likely to produce such suffering?²²⁸

The most difficult aspect of interpreting and applying this rule is not the scienter component regarding calculation, but rather the identification of what suffering in war qualifies as “unnecessary.”²²⁹ According to the 2019 U.S. Army Field Manual 6-27, The Commander’s Handbook on the Law of Land Warfare, this prohibition is grounded in the principle of humanity:

Humanity is the LOAC principle that forbids inflicting suffering, injury, or destruction unnecessary to accomplish a legitimate military purpose. Humanity is sometimes referred to as the principle of avoiding unnecessary suffering or the principle of avoiding superfluous injury. Commanders should exercise leadership to ensure that Soldiers and Marines under their command know that cruelty and the infliction of unnecessary suffering will not be tolerated.²³⁰

This very broad definition provides a useful touchstone but leaves many unanswered questions. While it makes clear that the infliction of suffering with no rational relationship to the accomplishment of the military mission would violate the principle, it does not address what limits, if any, apply to the infliction of suffering that are rationally related to the military mission. Indeed, explaining what is “unnecessary” without first explaining what suffering is “necessary” seems especially confusing.

The Field Manual provides another explanation that is more detailed, although it also indicates that, pursuant to U.S. interpretation, the rule is related exclusively to weapons systems and by implication not methods or tactics. Specifically:

A weapon review addresses whether the weapon is calculated to cause unnecessary suffering or superfluous injury in violation of the standard stated in Hague Regulations Article 23(e). The terms “unnecessary suffering” and “superfluous injury” are synonymous in the context of this analysis. Superfluous injury generally is determined in light of the practice of nations and in evaluation of a specific weapon. Superfluous injury is assessed in the sense of the design of a particular weapon or its employment, and not in terms of how a person affected by the weapon would be subjectively affected by it.²³¹

Use of “calculated to cause” in the Hague Regulations, 1907, Article 23(e), helps convey that the legal standard is focused on assessing the intended purpose or purposes of the weapon’s development.²³² The prohibition of weapons calculated to cause superfluous injury or unnecessary suffering constitutes acknowledgement that the use of weapons in war causes suffering, including injury and loss of life, and a weapon cannot be declared unlawful merely because it may cause severe injury or suffering.²³³

There is, however, no internationally agreed upon definition for superfluous injury.²³⁴ The determination is whether a weapon’s employment for its normal or expected use would be prohibited under some or all circumstances.²³⁵ A weapon would be deemed to cause superfluous injury only if it inevitably, or in its normal use, has a particular effect, and the injury caused as a result of this use is considered by governments as manifestly disproportionate to the military necessity for said use.²³⁶ In other words, it would cause excessive injury when compared to the anticipated military advantage to be gained from its employment.²³⁷ Furthermore, a weapon’s effects must be weighed in light of comparable, lawful weapons in use on the modern battlefield.²³⁸

Importantly, the effect of the use of a weapon in combat is not the sole criterion for determining whether a weapon is calculated to cause superfluous injury; effects will differ widely as a result of the constantly shifting nature of the battlefield.²³⁹ For example, a weapon that can incapacitate or wound lethally at 300 meters or longer ranges may result in a greater degree of incapacitation or greater lethality when used against targets at lesser ranges. Similarly, the use of a weapon sufficiently lethal to destroy a reinforced object, such as a tank, bunker, or aircraft hangar, may have a devastating effect on enemy military personnel in, on, or adjacent to that object at the time of its attack, or on enemy military personnel struck directly by a weapon intended for a vehicle or entrenched defensive position. In both cases, the use of these weapons would be lawful.²⁴⁰

These references reinforce a basic premise woven into this prohibition: the LOAC allows for the infliction of substantial necessary suffering.²⁴¹ As a result, and as is also reflected in these sources, identifying the line between necessary and unnecessary suffering is extremely complex.²⁴² This complexity is only increased when the regulatory scope of the principle is extended beyond weapons (means) to tactics (methods) as is required by state parties to the Additional Protocol I to the Geneva Conventions of 1949.²⁴³

Nonetheless, soldiers at every level are routinely instructed on their obligation to “prevent unnecessary suffering.”²⁴⁴ Even in the U.S. military, which, as indicated in the sources above, operates pursuant to a more restricted interpretation of the principle, this instruction is routine, beginning at entry-level training.²⁴⁵ It is important that soldiers understand that basic notions of humanity extend even to their enemy in combat, and that law and morality accordingly impose limits on the nature of measures that may be used to subdue that enemy.

However, it is unrealistic to expect every soldier to be capable of navigating the analytical complexity related to what is or is not necessary suffering in war when that analysis vexes even the most accomplished legal experts. More significant is the question whether criminal consequences should flow from a good-faith, reasonable decision to implement this amorphous principle that turns out to be legally erroneous—thus, we think a special defense is in order, as explained below.

2. Captain Rogelio Maynulet

U.S. Army Captain Rogelio Maynulet was tried by General Court-Martial in 2005 for assault with intent to commit murder for shooting and killing a mortally wounded enemy belligerent after a firefight. The trial involved the issue of whether his asserted honest (though perhaps unreasonable) understanding of what the unnecessary suffering principle required with regard to his victim justified allowing him to offer the military jury a mistake of law defense.²⁴⁶ Maynulet was involved in a combat action in Iraq in 2004 that resulted in an insurgent being mortally wounded.²⁴⁷ Maynulet ordered his medic to attend to the insurgent, but after an initial evaluation the medic informed Maynulet that there was nothing he could do for the wounded man and that he would die within five to ten minutes as a result of a head and chest wound.²⁴⁸ Maynulet then ordered the medic to move away from the casualty and proceeded to shoot and kill the wounded fighter.²⁴⁹ Unbeknownst to Maynulet, or his medic, all of this was being observed by a remotely piloted vehicle (drone) operator.²⁵⁰ That operator immediately informed his superior officer than he had just recorded what he thought was a war crime.²⁵¹

When questioned, Maynulet indicated that he acted pursuant to his training to prevent unnecessary suffering, and persisted in this assertion throughout the ensuing investigation and court-martial.²⁵² At the close of the evidence in his case, his defense counsel requested that the members of the court (the military jury) be instructed on mistake of law, arguing that “mistake of law may be a defense when the mistake results in the reliance on the decision or announcement of authorized public official or agency.”²⁵³ In support of this request, the military judge permitted the defense to present evidence from Professor Geoffrey S. Corn, one of this Article’s authors, who at that time was acting as a consulting expert on the asserted basis for the mistake.²⁵⁴ During this testimony, this expert reviewed PowerPoint slides from a pre-deployment LOAC briefing, which included a slide on the principle of unnecessary suffering.²⁵⁵ That slide was highly misleading, as it indicated unnecessary suffering requires soldiers to “do the right thing.”²⁵⁶

However, applying traditional criminal law doctrine as reflected in military jurisprudence, the military judge denied the instruction.²⁵⁷ According to the judge, mistake of law (as opposed to mistake of fact) would only be relevant if the defendant’s mistake about the law negated a specific intent requirement that Maynulet knew the law as an element of the offense.²⁵⁸ Since no such knowledge of the law was an element of the charged offense, the request was denied.²⁵⁹ Maynulet was convicted.²⁶⁰ While he did not testify in the findings phase of his general court-martial, he did testify under oath during the sentencing phase, explaining the motivation for his action.²⁶¹ The military jury then sentenced him to be dismissed from the Army (the officer equivalent of a dishonorable discharge) but rejected the prosecution request to include a period of confinement in its sentence.²⁶²

The Court of Appeals for the Armed Forces (CAAF)—the highest military appellate court—upheld Maynulet’s conviction, although it differed slightly in its reasoning.²⁶³ The CAAF applied an alternate theory of mistake of law (one codified in the MCM): mistake of law based on good-faith reliance on an authorized pronouncement of the law.²⁶⁴ However, the CAAF found that, “[t]he problem with [Maynulet’s] argument is that the record is devoid of any erroneous pronouncement or interpretation of military law or the [LOAC] upon which he could have reasonably relied to justify his killing of the injured driver.”²⁶⁵

This significance of Maynulet’s case requires placement in the general context of mistake of law as an affirmative defense. In U.S. criminal law, knowledge of the law is typically irrelevant to assessing the culpability for its violation, and military criminal law is no exception.²⁶⁶ This irrelevancy assumption originated with the malum in se nature of common law crimes, a characterization of evil that led to the conclusion that a defendant need not know what the law prohibited in order to form a guilty mind in relation to commission of common law offenses.²⁶⁷ As criminal codes expanded to include numerous malum prohibitum offenses, this assumption regarding irrelevancy of the law’s strictures was criticized.²⁶⁸ In light of this criticism, and at the suggestion of the American Law Institute’s Model Penal Code, many U.S. jurisdictions amended their codes to recognize a limited mistake of law defense theory: a defendant may raise mistake of law not only when relying on a high-level authoritative statement of the law that turned out later to be false,²⁶⁹ but also when knowledge of the law is actually a material element of the charged offense.²⁷⁰

This two-prong concept of mistake of law is reflected in military law. For example, the pattern instructions for U.S. courts-martial provide:

Ignorance or mistake of law is generally not a defense. However, when actual knowledge of a certain law or of the legal effect of certain known facts is necessary to establish an offense, ignorance or mistake of law or legal effect will be a defense. Also, such unawareness may be a defense to show the absence of a criminal state of mind when actual knowledge is not necessary to establish the offense. For example, an honest belief the accused was, under the law, the rightful owner of an automobile is a defense to larceny even if the accused was mistaken in that belief.²⁷¹

This instruction obviously limits mistake of law to the specific intent-type and is therefore not as inclusive as the Model Penal Code proposal (the instruction also appears to confuse mistake of law with mistake of fact with its use of the mistaken belief of legal ownership nullifying intent to steal). This under-inclusive approach to mistake of law is especially troubling when considering a case like that of Maynulet. If, as Maynulet sought to argue, his reliance on a misleading or erroneous explanation of the LOAC principle of unnecessary suffering was reasonable under the circumstances, denying the defense seems inequitable, especially considering the unique and at times complex situations involving LOAC implementation. Indeed, while it is impossible to know exactly why his military jury imposed a relatively lenient sentence, it may very well be that it understood this inherent inequity.

Offenses resulting from a mistaken understanding of the LOAC’s unnecessary suffering rule do not require proof of knowledge of the law as a material element. As a result, detrimental reliance on such training or advice could never be relevant to establishing the elements of offenses against the person such as that committed by Maynulet no matter how reasonable that reliance may be under the circumstances.²⁷² However, what distinguishes the soldier from the citizen in the normal peacetime context is the overall obligation to know and implement the LOAC.²⁷³

International law imposes on soldiers an individual obligation to comply with the LOAC, an obligation that transcends any domestically imposed duty of obedience.²⁷⁴ This is reflected in the qualification of obedience to orders as a defense to a criminal act:

Obedience to an unlawful order does not necessarily result in criminal responsibility of the person obeying the order. The acts of the accused if done in obedience to an unlawful order are excused and carry no criminal responsibility unless the accused knew that the order was unlawful or unless the order was one which a person of ordinary common sense, under the circumstances, would know to be unlawful.²⁷⁵

This instruction is consistent with the near universal understanding of the relationship between the duty of obedience and the limits of that duty imposed by this individual obligation.²⁷⁶ Central to this limitation of obedience as an excuse for committing an act or omission in violation of the LOAC is the expectation that the subordinate know and comply with the limits imposed by that body of law on conduct during armed conflict. In short, all soldiers bear an obligation at all times to know the basic requirements of the law.²⁷⁷

Denying a soldier accused of misconduct arising in the context of armed conflict—especially during the conduct of hostilities—the opportunity to demonstrate that an alleged unlawful act or omission was motivated by an honest and reasonable, but mistaken, LOAC understanding therefore produces an inequity: the soldier is legally accountable for compliance with the law but legally vulnerable for action pursuant to a reasonable mistake about what the law requires. Considering the myriad of situations to which the basic LOAC obligations arise, the limited education of soldiers on legal obligations, and the urgency and complexity of combat decision-making, a different rule seems more than justified.

Of course, allowing a soldier to plead mistake to legally excuse objectively unlawful conduct also produces a risk of overbreadth, as it would open the door to such a plea in almost any use of unlawful violence. Perpetuating the common law hostility to the mistake of law defense is not, however, an ideal solution to such overbreadth. Instead, a more logical solution is to recognize a modified version of the defense, one that requires a finding of both a subjectively honest misunderstanding of the law, coupled with a finding of objective reasonableness. Central to this reasonableness requirement would be the basis for the mistaken understanding, thus implicitly requiring proof of detrimental reliance on a mistaken or misleading statement of the law by an authority responsible for interpreting or, in the operational context, advising on the law—exactly what Maynulet sought to assert. This reliance component would serve as a significant check on assertion of the defense because, absent some evidence to support that reliance, a defendant would be unable to make a prima facie showing justifying the defense.

Furthermore, because this theory of mistake of law will not negate a material element of an offense, it should be treated as an affirmative defense. Unlike applying mistake of law to an offense that requires proof of knowledge of the law to satisfy a material mens rea element of an offense—the theory of mistake of law already recognized in U.S. military law²⁷⁸—a soldier like Captain Maynulet will not be raising the defense to create reasonable doubt as to the mens rea element of the alleged offense. Instead, the mistake will be raised as an excuse. The significance of this difference in application is that unlike the existing recognized variants of the defense, the excuse theory will be treated as an affirmative defense, arising only after the prosecution satisfies its prima facie burden of production on the alleged offense and requiring the defense to prove the excuse by a preponderance of the evidence.²⁷⁹

Interestingly, we also note that there has been similar criticism regarding the International Criminal Court’s treatment of mistake of fact as related to war crimes.²⁸⁰ The United States should take the lead in moving the proverbial needle in a more equitable direction by incorporating a mistake of law defense applicable to allegations of misconduct associated with armed conflict, one that excuses a defendant, as we recommend, when the mistake was both honest and reasonable under the circumstances. This will produce three benefits. The first operates at a micro level. In particular, when validly asserted, it will protect soldiers from criminal conviction in specific cases and thus promote justice. It will also confer benefits at the macro level. More specifically, it will provide an example for other countries, and ideally the International Criminal Court, to emulate.

Finally, and perhaps most importantly, it will enhance the emphasis on effective training and education of service members so that they enter combat with an accurate and comprehensive understanding of the LOAC obligations relevant to their battlefield functions. This third advantage, while collateral to the main focus of recognizing such a defense, is far from insignificant. Ideally, the education and training of military forces would negate the viability of such a proposed mistake of law defense because a mistake would never be objectively reasonable. However, when that education and training is ineffective at best, or misleading at worst, there will be a causal connection between the institutional failure to adequately prepare forces for combat and the accused soldier’s plea of mistake. Accordingly, expansion of the mistake of law defense will incentivize more effective education and training so as to avert such mistakes from ever arising.²⁸¹

B. Closing the Golsteyn Gap: New Disobedience Offense

There is one aspect of wartime accountability that necessitates not the enumeration of a war crime, nor a new defense, but an enhanced version of the existing military offense of willful disobedience of an order instead. Such an offense is needed to close a potential accountability gap that arises when a U.S. service member uses force against a target that qualifies as a lawful object of attack pursuant to the LOAC, but nonetheless violates rules of engagement or tactical directives.

Consider the crime Major Matthew Golsteyn was charged with committing before his commander’s effort to bring him to trial by general court-martial was terminated by President Trump’s preemptive pardon.²⁸² According to the public record, the charge of premeditated murder against Golsteyn was based on an allegation that he intentionally and unlawfully killed an Afghan detainee who had been released apparently pursuant to directives from higher authority.²⁸³ Golsteyn allegedly disagreed with the decision to release him because he believed the detainee was a member of the Taliban forces; Golsteyn then took action to confront this former detainee and killed him.²⁸⁴

Because the case was never tried, it is impossible to determine what the factual record would have ultimately established. However, would such a killing (or any other assault or battery) qualify as unlawful if, as Golsteyn may have asserted at trial, the target of the attack was reasonably assessed as a lawful one within the meaning of international law? In short, does the fact that the action violated a command order or directive render the killing unlawful for purposes of criminal responsibility, or is the killing lawful because the LOAC provides that enemy belligerents (unless hors de combat) can be killed even when defenseless, based on their status?²⁸⁵

There is no dispute that a willful violation of rules of engagement (or of other command directives limiting uses of force that otherwise comply with the LOAC) qualifies as disobedience in clear violation of the UCMJ.²⁸⁶ For example: if, as it seemingly was in the Golsteyn case, the authority to engage individuals—even those reasonably determined to be members of the enemy organized armed group—was restricted to situations where the target posed an actual or imminent threat to friend forces, the positive identification as enemy belligerent would not justify a use of force in violation of the order. But does the fact that a subordinate like Golsteyn exercised authority that had been withdrawn from him by superior command render the killing unlawful, and hence murder, or does it simply indicate that there was an orders violation?²⁸⁷

This may be a decisive question for a soldier like Golsteyn charged with murder in violation of the UCMJ. If the violation of the rules of engagement rendered the killing unlawful, there is little question about his guilt. In contrast, if the status of the alleged victim rendered the attack lawful within the meaning of the LOAC, there is a credible argument that the killing was lawful. That is, the LOAC may provide a legal justification for the killing. Rule for Courts-Martial 916 provides that “[a] death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful,” and its MCM discussion explicitly states that “killing an enemy combatant in battle is justified.”²⁸⁸

Hence, a defendant like Golsteyn could (assuming he had made a reasonable status determination that the target indeed was an enemy belligerent, a fact-based determination) argue that the killing was legally justified pursuant to international law, even if the killing violated an order such as the rules of engagement. If this argument were to prevail, the maximum penalty for the disobedience offense would be trivial compared to that authorized for murder.²⁸⁹

It is not clear that this argument would be effective. The government would argue that the authority, derived from international law, to attack identified enemy belligerents and other targets, is granted to the individual soldier only in his or her capacity as an agent of the state. Accordingly, it is the prerogative of the state to choose where, when, and how to delegate that authority in the agent. And when rules of engagement restrict that authority, there is no valid claim to it by a subordinate.

U.S. military criminal law has not addressed this particular issue; therefore, it is unclear whether the government would be successful with such an argument, leaving a potential accountability gap. It is one that could be closed by enacting an aggravated form of disobedience in UCMJ Article 92, the disobedience offense. This offense would supplement the current prohibition against willful disobedience of an order by providing an authorized maximum punishment analogous to the maximum punishment in the situations in which a homicide or assaultive offense results from disobedience of a battlefield order. Accordingly, even if a general court-martial were to find that a killing resulting from a willful violation of the rules of engagement was legally justified by the LOAC and therefore not an unlawful killing (hence not murder), the punishment for the underlying and separately charged willful orders violation would be analogous to the offense that would have been established had the killing been unlawful.

C. Curing the Curious Defect in Detainee Jurisdiction

In creating the military commissions in response to President Bush’s 2001 executive order, the Secretary of Defense bypassed the option provided by existing military law of trial by general court-martial pursuant to well-established procedural and evidentiary rules applicable to such trials.²⁹⁰ The nearly two decades of debate and litigation related to that decision and the ongoing military commission trials seem to support an assumption that the military commission is an appropriate or perhaps even the only military tribunal for use when subjecting a captive to military jurisdiction.²⁹¹

This assumption is false and potentially dangerous in terms of compliance with international law. To understand why, it is necessary to analyze the different sources of military criminal jurisdiction over captured and detained personnel during situations of armed conflict. This analysis must focus on the statutory jurisdiction established over such individuals by Congress through both the UCMJ and MCA.

When assessing the exercise of military criminal jurisdiction over captured enemy personnel, detainees fall into two general categories: those who qualify for protections enumerated by one of the four Geneva Conventions of 1949 and those who do not.²⁹² Specifically, the first category includes individuals who qualify as prisoners of war pursuant to Article 4 of the Third Geneva Convention Relative to the Treatment of Prisoners of War and would also include prisoners of war who benefit from the protections of the First Geneva Convention (the Wounded and Sick Convention) or Article 4 of the Second Geneva Convention (the Wounded, Sick and Shipwrecked at Sea Convention, due to being wounded, sick or shipwrecked), as well as civilians who qualify as Protected Persons pursuant to Article 4 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War.²⁹³ Individuals in this category all must be captured in the context of what the Conventions define as an international armed conflict (an inter-state armed conflict) and must meet the qualification requirements of the respective treaty establishing the relevant protected status.²⁹⁴

In U.S. practice, all other captives would be considered detainees who are guaranteed humane treatment but would not qualify for a specific status established by any of these treaties.²⁹⁵ This would include all individuals captured in the context of an armed conflict not of an international character, meaning any conflict with a non-state organized armed group; and any individual captured during an international armed conflict failing to qualify for specifically enumerated status pursuant to one of the four Geneva Conventions.²⁹⁶

The type of misconduct a detainee may have committed falls within three general categories. First is violation of U.S. domestic law prior to capture and unrelated to the armed conflict. For example, General Manuel Noriega was charged and convicted of pre-capture and pre-conflict violations of U.S. extraterritorial criminal laws related to narcotics trafficking.²⁹⁷ This type of misconduct falls completely beyond the scope of any U.S. military jurisdiction and would be exclusively subject to U.S. federal criminal jurisdiction pursuant to federal long-arm jurisdiction. Second, a detainee may commit war crimes prior to capture; as explained below, this category of misconduct is subject to the jurisdiction of either a general court-martial or a military commission.²⁹⁸ Third, a detainee may commit misconduct after capture and while in U.S. military custody.

The U.S. military has a legitimate interest in asserting jurisdiction over the second and third category of offenses. The second, violations of the laws and customs of war, has historically triggered military jurisdiction following the enemy’s capture.²⁹⁹ The rationale for this jurisdiction is that it is related to deterring enemy violations of the law and demonstrating U.S. commitment to accountability.³⁰⁰ Congress provided concurrent jurisdiction over such offenses by either a general court-martial convened pursuant to the UCMJ and the RCM or by a military commission convened on order of the President or a subordinate commander.³⁰¹

While history indicates a consistent U.S. practice of using the military commission to prosecute captured enemy personnel—a preference that was reaffirmed by the decision to use such a tribunal to try captured al Qaeda and Taliban personnel for alleged war crimes—the choice between these two tribunal options has always been vested in the President. So long as the alleged offense qualifies as a violation of the laws and customs of war subject to military jurisdiction, either tribunal may be used as the forum for adjudication.³⁰²

Subjecting captured enemy personnel to trial by either type of military tribunal for alleged violation of international law does not, however, subject them to U.S. substantive law. Those tribunals, while vested with jurisdiction to try individuals subject to the UCMJ—most notably members of the U.S. armed forces—were traditionally not vested with analogous jurisdiction over captured enemy personnel for allegations of pre-capture misconduct. Instead, the jurisdiction vested in these military tribunals over such captives is adjudicatory: the authority to adjudicate allegations of pre-capture violations of international law. This is an important limitation on these tribunals for the simple reason that for conduct committed prior to capture, the U.S. has no legitimate basis to extend its domestic military criminal code to members of opposition armed forces or other organized armed groups. Indeed, subjecting such individuals to the UCMJ’s punitive articles could be considered inconsistent with customary international law principles of state jurisdiction.³⁰³

However, no analogous impediment applies to subjecting these individuals to the UCMJ’s punitive articles once they are captured and held in U.S. custody. Indeed, subjecting prisoners of war to the military jurisdiction of the detaining power is not only consistent with customary international law principles of jurisdiction (as such detainees fall within the territorial principle of jurisdiction) but is a well-accepted exercise of jurisdiction to ensure accountability for serious crimes while in captivity.³⁰⁴ This is reflected in Article 84 of the Geneva Convention Relative to the Treatment of Prisoners of War.³⁰⁵

Unfortunately, the jurisdiction established by the UCMJ over enemy personnel is both over- and under-inclusive. Article 2 of the UCMJ enumerates “persons subject to this chapter,” listing the categories of individuals subject to the UCMJ. Individuals falling into one of these categories are, therefore, subject to the criminal proscriptions enumerated in the Code’s punitive articles.³⁰⁶ The statute’s overbreadth results from Article 2(13), which subjects certain captives to the jurisdiction of the punitive articles for pre-capture misconduct. Article 2 is also under-inclusive because it excludes from this same jurisdiction detainees who fail to qualify as prisoners of war. Both of these defects should be cured.

Article 2(13) is a relatively new amendment to the UCMJ, added in the National Defense Authorization Act for Fiscal Year 2010;³⁰⁷ it includes jurisdiction over “[i]ndividuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war.”³⁰⁸ Though poorly drafted, the reference to the law of war suggests that this amendment may have been motivated by a desire to foreclose the option of using general courts-martial as an alternative to the MCA military commission system for the trial of unprivileged belligerents. By limiting the scope of jurisdiction to only captives who qualify for prisoner of war status pursuant to the Third Geneva Convention, any detainee designated by the United States as an unprivileged belligerent (which includes all detainees associated with non-state organized armed groups) would be excluded.

But if this were the intent, the mechanism used is incoherent. Captured enemy personnel, whether privileged or unprivileged, have never been subject to the criminal proscriptions of the UCMJ—the punitive articles—prior to capture (the period of time when they might commit violations of the law of war). Instead, as explained above, Article 18 of the UCMJ has, since its 1950 inception (and even earlier in the predecessor Articles of War) authorized use of general courts-martial as a forum to adjudicate such captive’s violations of international law, to wit, the LOAC: the laws and customs of war.³⁰⁹

In contrast, Article 2 outlines categories of individuals, who, at all times, are subject to the UCMJ’s punitive articles.³¹⁰ Since the punitive articles currently do not include enumerated war crimes, it is near impossible to understand the effect of this Article 2(1) provision. On one hand, it indicates that enemy personnel who qualify upon capture as prisoners of war were subject to the Code prior to capture for UCMJ offenses, just like U.S. service members.³¹¹ On the other hand, it expressly indicates this scope of jurisdiction extends only to violations of the law of war, which are not even enumerated in the Code. Hence, it functionally does nothing.

This leads to only one logical conclusion: Congress amended the wrong article of the UCMJ. If Congress seeks to prohibit the use of general courts-martial to prosecute unprivileged belligerents for pre-capture violations of the law of war, it should amend Article 18 of the UCMJ. That amendment need only say that a general court-martial may exercise jurisdiction over any person who qualifies as a prisoner of war upon capture for any violation of the law of war subject to trial by military tribunal. This would compel the use of a military commission (or a civilian federal criminal prosecution under the War Crimes Act if a U.S. soldier or citizen is a victim of said war crime) to prosecute law of war violations by any detainee who fails to qualify for prisoner of war status.³¹² And, while we believe such an amendment is ill-advised, as it will restrict the forum selection flexibility that has always been provided by the UCMJ, there is simply no credible justification for the even more ill-advised current, and meaningless, Article 2(13).

Ironically, the same detainees excluded from UCMJ jurisdiction for violations of the law of war by Article 2(13) should be, but are not, subject to UCMJ jurisdiction while actually detained by the U.S. military. As noted above, subjecting prisoners of war to the military criminal jurisdiction of a detaining power is a traditional method of ensuring accountability for serious misconduct during captivity, one integrated within the Third Geneva Convention.³¹³ Consistent with this tradition, Article 2(9) of the UCMJ includes within those subject to the punitive articles of the Code prisoners of war in the custody of the armed forces. This means that once captured, prisoners of war are subject to the UCMJ’s punitive articles no differently from the U.S. military personnel standing guard over them.³¹⁴ However, this provision is clearly under-inclusive as it fails to include within the scope of this jurisdiction detainees in military custody who do not qualify as prisoners of war, most notably those designated as unprivileged belligerents. And because of the limits inherent in Article 2(13) explained above, these detainees are also excluded from that particular UCMJ jurisdictional grant.

This creates a troubling jurisdictional shortfall. If, hypothetically, one unprivileged belligerent detainee at the U.S. detention facility in Guantanamo Bay Naval Base killed another, finding jurisdiction to prosecute him for this crime would be challenging. If these detainees qualify as prisoners of war, the killer could be easily tried by court-martial for violation of the relevant UCMJ offense, such as Article 118 proscribing murder.³¹⁵ However, a court-martial would, under today’s UCMJ, lack jurisdiction over the killing: the detainee is not a person “subject to this chapter” pursuant to Article 2.³¹⁶ Nor would such a killing qualify as a violation of the law of war falling within the scope of military commission jurisdiction. Accordingly, the only way the killer might be held accountable would be if the killing fell within the scope of a federal crime that provides for extraterritorial jurisdiction, which is infrequent.³¹⁷

Individuals detained after being designated as unprivileged belligerents should be subject to the same scope of post-capture military jurisdiction as their privileged belligerent counterparts. Accordingly, Congress should amend the UCMJ to expand jurisdiction to encompass these detainees by simply adding “unprivileged belligerents” to the jurisdiction established by Article 2(9) of the UCMJ over prisoners of war in U.S. custody. Its new form should read: “(9) Prisoners of war and unprivileged belligerents in custody of the armed forces.” By amending the UCMJ to cure the above defects, Congress will align U.S. military jurisdiction with its historically established parameters and in so doing provide an example that can be emulated by other nations.

D. Eliminating GWOT’s MCA Manipulations of the UCMJ

Unfortunately, Article 2(13) does not seem to be the only manifestation of misguided congressional manipulation of the UCMJ to somehow bolster the validity of the military commissions established to try unprivileged belligerents at Guantanamo Bay, Cuba. In 2006, Congress reached into the UCMJ’s punitive articles as well, and actually enumerated what it mistakenly thought was a war crime: conspiracy to commit a serious violation of the LOAC. In other words, there actually is one current exception to the absence of enumerated war crimes in the punitive articles. Article 81, which enumerates the crime of conspiracy, provides that:

(a) Any person subject to this chapter who conspires with any other person to commit an offense under this chapter shall, if one or more of the conspirators does an act to effect the object of the conspiracy, be punished as a court-martial may direct.

(b) Any person subject to this chapter who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct.³¹⁸

Paragraph (b) of Article 81 was not added to the UCMJ until 2006, the only amendment to this crime since the UCMJ’s enactment following World War II.³¹⁹ This suggests the amendment was motivated by an effort to bolster the validity of an analogous provision in the MCA.³²⁰

Since the inception of the military commission trials of unprivileged enemy belligerents, the government has struggled to justify characterizing conspiracy to violate the law of war as an offense traditionally subject to trial by military commission.³²¹ Even following enumeration of this offense in the MCA, the validity of treating such a conspiracy as an offense subject to trial by military commission has been the source of significant litigation.³²² As a result, both the timing of this amendment and the fact that it is the only enumeration of an offense referencing the law of war in the entire UCMJ suggests a connection between the amendment and the government’s efforts to justify including such an offense within the subject-matter jurisdiction of the military commission.

Given this Article’s recommendation that the MCA’s offenses be added to the UCMJ as enumerated war crimes (with the exception of those MCA offenses of dubious international validity, such as conspiracy), Article 81 of the UCMJ should be restored to its original status. Unless and until the question of the validity of designating conspiracy to violate the law of war as a war crime falling within the scope of military commission jurisdiction is definitively resolved—a resolution still lacking as the result of the fractured en banc Al Bahlul decision by the U.S. Court of Appeals for the District of Columbia Circuit³²³—this offense should be eliminated from the UCMJ. Allowing it to linger in the MCA may be necessary to enable the government to continue to assert that validity, but it is unjustified (and unnecessary) to tarnish the punitive articles of the UCMJ with this offense of doubtful validity. It is also ironic, as there are so many other war crimes that merit inclusion in the punitive articles that continue to be omitted—the very focal point of this Article.

Conclusion

Currently the United States utilizes disparate military criminal offenses, as well as different processes, to prosecute different categories of alleged war criminals. Furthermore, the United States fails to prosecute American service members for actual war crimes, only prosecuting those committed by its enemies. Additionally, the American public, led in the wrong direction by President Trump and others, currently misunderstands how compliance with the laws and customs of war absolutely depends on accountability for its violations—on criminal punishment of our men and women in uniform who commit war crimes.

By creating greater symmetry and enhancing war crimes accountability in U.S. military law through this Article’s proposals, the U.S. military will possess a more credible and comprehensive legal regime to fully discharge its responsibility to ensure prevention and punishment of war crimes. Such greater legal clarity will hopefully also have an educational effect on our society’s appreciation of the need for accountability. Our proposed reforms will, if enacted, encourage greater faith in the fairness of the American military justice system by incorporating most of the MCA’s enumerated war crimes into the UCMJ, adding appropriate defenses, providing command responsibility liability, and restoring general court-martial jurisdiction over all captured enemy belligerents. These measures will not only enhance professionalism and effectiveness of the U.S. military itself; they will also buttress legitimacy of U.S. military operations worldwide.

Such necessary remedial steps have long been needed, and they must be coupled with renewed public support to utilize such mechanisms in order to close the current American accountability war crimes deficit. This renewed support will hopefully be prompted by improved understanding of the critical necessity of compliance with the LOAC, as established in this Article. Its measures will further just and fair accountability, and they will help secure the many benefits that fidelity to the law bestows.

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