Codifying War Crimes in the UCMJ

First, I would like to thank Professors Chesney, Vladeck, and Yin for offering me the opportunity to become a “national security advisor”!

This past weekend I participated as a panelist at the International Law Association International Law Weekend at the Bar Association of the City of New York. One of my fellow panelists, Professor Victor Hansen from New England School of Law (who is also a close friend from our former Army JAG years), raised what I think is an interesting and timely issue: should the Uniform Code of Military Justice (UCMJ) be amended to include defined war crimes within the punitive articles? 

Professor Hansen specifically addressed the doctrine of command responsibility, proposing that it would serve the interests of the armed forces to expressly incorporate this doctrine into the punitive articles – the part of the UCMJ that enumerates offenses applicable to individuals subject to military jurisdiction. This proposal is the subject of his forthcoming article in the Gonzaga Law Review, which explains how such an incorporation would eliminate confusion related to which standard of command responsibility applies to U.S. forces, and thereby enhance the deterrent effect of this doctrine.

But it is not just command responsibility that is undefined in the UCMJ. Currently, there are no war crimes defined by the punitive articles. Instead, these articles define a range of common law and distinct military offenses, ranging from dereliction of duty to murder. This of course does not mean there is no mechanism to punish war crimes. First, pursuant to the longstanding policy of the armed forces, the underlying conduct that results in a war crime is normally charged as a violation of one of the existing punitive articles. For example, a killing of a detainee or innocent civilian would likely be charged as a murder. In addition, General Courts-Martial are also vested with jurisdiction to try any person for a violation of the law of war, although this jurisdiction is virtually never invoked over U.S. service-members.

 

Professor Hansen’s presentation made me wonder if there is any reason why his proposal should be limited to command responsibility. Defining war crimes within the punitive articles would give military prosecutors the option of recommending war crimes charges in appropriate cases. This would enhance the likelihood of such charges when justified, which might in turn enhance the perception of U.S. credibility in responding to battlefield misconduct, which often suffers from the misperception that charging service-members with common law crimes, and not with “war crimes”, indicates a lack of resolve to respond to misconduct.

Incorporating defined war crimes into the punitive articles would also provide a more established basis for subjecting captured personnel to trial for violations of the laws of war, whether before a General Court-Martial or Military Commission. In fact, it seems somewhat ironic that unlike the UCMJ, the Military Commission Act defines a number of war crimes. It is also interesting to consider the impact such a modification might have vis a vis the International Criminal Court. The United States played a major role in drafting the offenses and elements for that tribunal. It would therefore seem plausible to rely on many of the ICC definitions for such a modification to the UCMJ, which in turn could enhance the perception of legitimate prosecution of U.S. service-members who commit battlefield misconduct.

While I think such an amendment to the UCMJ is unlikely, I wonder if the increasingly well-defined nature of such offenses will eventually generate genuine consideration within DOD and Congress for such a development?

Comments

[Bobby Chesney]

Very interesting idea.

I've heard it suggested that the absence of the U.S. from the ICC harms us indirectly by depriving us of a direct voice in that body's activities insofar as they impact the development of war crime jurisprudence. Do you think that getting Congress engaged on this issue within the UCMJ context would help enhance our voice in that respect? More to the point, would action under the UCMJ heading have an impact different in kind from whatever impact follows from the action Congress already has taken in the Military Commissions Act?

[Geoff Corn]

I think it would have a positive impact. Right now, trials for battlefield misconduct are not really contributing to the definition of war crimes because they are charged as domestic crimes. If this were to change, I don't see how the decisions in these cases, particularly appellate decisions, could be ignored in relation to the devlopment of this area of law. I also think the impact would be different from the impact of the MCA, primarily because the application of the law would be regarded as more credible when applied to our own forces. It might also depend on how the appeals process for the Military Commission plays out, but I tend to believe that appellate decisions realted to those trials will not be as comprehensive as we would expect from the Court of Appeals for the Armed Forces if US service-members were the defenants.

[Victor Hansen]

The development of a different appellate jurisprudence under the MCA versus the military appellate system under the UCMJ is an interesting side note to this issue. The MCA very clearly establishes a separate appellate review than that set out under the UCMJ. Since the judges that will sit on this appellate body must be military appellate judges, the interesting question for me is what body of law they will look to in reviewing the crimes codified under the MCA. Since these judges will have grown up in the UCMJ system, it seems only natural that they will look to this source of law for guidance. I would expect that given the vagueness of the law of war offenses under international law, these military appellate judges will be much less inclined to look in that direction for guidance. The result may be that over the next several years the U.S. will develop a dual track appellate system where our interpretation and application of the law of war looks very similar to our appellate jurisprudence for similar offenses under the UCMJ. The practical effect may be that the appellate courts established under the MCA will for most purposes, incorporate the law of war as we define it, into UCMJ jurisprudence, and visa versa. Whether this will lend more credibility to our system on the international stage depends, I think, in large part on how willing we are to apply the criminal standards of accountability we develop, equally to our enemies and our own forces.

[Bobby Chesney]

Do either of you (or anyone else) have a view regarding the "material support" offense listed in the MCA? In particular, are there any UCMJ offenses that you would point to as reasonably close analogues? I'm aware of the federal criminal statutes in this area, but my impression is that there is not a precise UCMJ analogue (except perhaps, as to persons with a duty of loyalty to the U.S., aiding the enemy).

[Geoff Corn]

I think aiding the enemy is the closest enumerated offense. However, the UCMJ also includes what is called the "general article", which prohibits any conduct that is detrimental to good order and discipline or brings discredit upon the armed forces. Here it is:

ART. 134. GENERAL ARTICLE
Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, shall be taken cognizance of by a general, special or summary court-martial, according to the nature and degree of the offense, and shall be punished at the discretion of that court.

This provision is usually used for enlisted soldiers. The prohibition against conduct umbecoming an officer is very similar and would be used for officers. Both of these provisions allow the government to allege ANY misconduct so long as they allege and prove the negative impact on the armed forces.

There was actually a very significant General Court-Martial at Fort Lewis, Washington several years ago involving a National Guard soldier caught on surveillance tape trying to provide information to agents he assumed were associated with al Qaeda. His name was Ryan Anderson, and he was convicted and sentenced to life in prison (see http://www.cbsnews.com/stories/2004/02/12/terror/main599982.shtml). I am going to ask the military lawyer who defended him to chime in with a comment about the charges.

[Jay Morse]

Thank you for the opportunity to contribute. I agree with Prof. Corn - the General Article is incredibly flexible, and offers both the prosecution and the defense the opportunity to create charges and specifications where the UCMJ might not otherwise provide clear guidance. Though the prosecution can use Article 134 in conjunction with a federal statute to create an analagous charge, in SPC Anderson's case they chose to use the article to create a completely new charge, which essentially amounted to discrediting the Army by providing material support to the enemy. Though SPC Anderson was also charged with attempting to aid the enemy under Article 104, the Article 134 charge allowed the government to allege SPC Anderson's conduct itself - regardless of whether or not he actually aided the enemy - brought discredit upon the Armed Forces.

As implied earlier, Article 134 can be used by the defense as well. For instance, if the facts were such that an accused may or may not be guilty beyond a reasonable doubt of offering material support, but the facts are so shocking that conviction is likely, the defense can use Article 134 to construct an alternate charge to which the accused would be amenable to pleading guilty and entering a deal with the government - thereby offering him some protection from a potentially harsh sentence from the panel or judge.