Introduction
This primer provides the practitioner with a framework for determining the proper method for charging an American service member accused of committing war crimes. Compared to charging traditional offenses, charging war crimes offers more options and potential pitfalls to the trial counsel drafting the charge sheet. Using a hypothetical situation involving a Soldier who commits several acts of misconduct while deployed, this primer outlines the advantages and disadvantages of charging war crimes as an enumerated offense under the Uniform Code of Military Justice (UCMJ)[1] — as conduct prejudicial to the good order and discipline of the armed forces under clause 1 of Article 134,[2] as a service discrediting act under clause 2 of Article 134,[3] or as a violation of a federal law by assimilation under Article 134, UCMJ.[4]
This primer discusses why, in drafting a charge sheet, the prosecutor should begin with offenses enumerated in the UCMJ. As discussed below, the enumerated offenses can be properly applied to a broad spectrum of misconduct, including offenses considered war crimes. Due to the nature of the misconduct, however, a prosecutor should also consider the possibility of charging the service member with violation of war crimes [5] by assimilating federal law in addition to the enumerated offenses. This primer outlines various offenses that the prosecutor could potentially charge as war crimes. It concludes that only in the rarest of circumstances should a prosecutor charge a war crime by assimilating federal laws governing the prosecution of violations of the laws of war.
1 See MANUAL FOR COURTS-MARTIAL, UNITED STATES pt. IV, ¶¶ 1 - 113 (2005) [hereinafter MCM].
2 UCMJ art. 134 (2005).
3 Id.
4 Id.
5 There are several definitions of “war crimes.” See, e.g., U.S. DEP’T OF ARMY, FIELD MANUAL 27-10, THE LAW OF LAND WARFARE para. 499 (July 1956) (“The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.”) [hereinafter FM 27-10]. In addition, the Department of Defense Law of War Program defines law of war as the following:
Quote:
[t]hat part of international law that regulates the conduct of armed hostilities. It is often called the law of armed conflict. The law of war encompasses all international law for the conduct of hostilities binding on the United States or its individual citizens, including treaties and international agreements to which the United States is a party, and applicable customary international law.
U.S. DEP’T OF DEFENSE, DIR. 5100.77, DOD LAW OF WAR PROGRAM para. 3.1 (9 Dec. 1998). For purposes of this primer, a “war crime” is considered to be a criminal act committed during international armed conflict against an individual who is protected from such acts by codified and/or traditional laws of war.