Quote Originally Posted by jmm99 View Post
If you (a generic "you" aimed at no one particular) feel that this incident should be prosecuted - I would not prosecute as to any of it, including the van segment - then you prosecute under 18 USC 2441 (War Cirmes), which spells out its extraterritorial jurisdiction:



This is treated as though it can be incorporated by reference into the UCMJ.

Regards

Mike
JMM brings up the other piece of the puzzle under which war crimes can be tried. As it stands an active duty member who commits a war crime can be tried under the UCMJ or in federal court under 2441. Additionally after he seperates from active duty, he can be tried under 3261.

The first portion of the engagement is not chargeable under 2441, however. See 18 USC 2441(3). It can be likely argued that the journalists and other unarmed persons were killed as a result of "collateral damage." However as 3261 contains no collateral damage exception, and anyone charged under it faces traditional non-combat definitions of murder, manslaughter etc.

For example Jose Nazario was accused of killing an insurgent who had surrendured or was in the act of surrendering. This is a classic war crime under the geneva conventions and therefore 2441. However he was charged under 3261 and faced manslaughter charges. This is likely because it is much easier to prosecute and prove manslaughter than war crimes. As long as they have a choice, most prosecutors will choose 3261.