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.