Integrating Title 18 war crimes into Title 10: a proposal to amend the Uniform Code of Military Justice

Air Force Law Review, Winter, 2005 by Mynda G. Ohman

   I.  INTRODUCTION
  II.  THE DEVELOPMENT OF MILITARY LAW
       A. From the Articles of War to the Uniform Code of
          Military Justice: A Brief History
       B. The Expansion of Military Jurisdiction
          1. Sources of Military Jurisdiction and Authority
          2. The Historical Development of Military Tribunals
 III. ARTICLE 18: PROVIDING TWO SPHERES OF COMPETENCE FOR
      THE GENERAL COURT-MARTIAL
  IV. THE MECHANICS OF ARTICLE 134: HOW THE GENERAL
      ARTICLE WORKS
       A. Clause 3 Offenses: Importing Crimes from Federal Law
       B. Clause 1 and 2 Offenses: The Crimes of Disorder and
          Discredit
          1. As Charged Offenses
          2. Using Clause 1 and 2 Offenses as Related or Lesser
           Offenses of Clause 3
   V. THE LIMITATIONS OF ARTICLE 134: HOW CAPITAL
      PUNISHMENT AVAILABLE UNDER THE FEDERAL STATUTE
      AFFECTS MILITARY PROSECUTIONS
       A. United States v. French: Civil Statutes Authorizing the
          Death Penalty Fall Outside of the Scope of the General
          Article
       B. Bypassing the General Rule: Crimes Occurring Outside
         a Statute's Territorial Jurisdiction Are Not Affected by
         U.S. v. French
  VI. HOW THE ARTICLE 134 CAPITAL PUNISHMENT BAR AFFECTS
      PROSECUTIONS OF FEDERAL CRIMES: A LOOK AT TWO
      FEDERAL CRIMINAL STATUTES
       A. The War Crimes Act
          1. Statutory Definitions and Legislative History
          2. Possible Impact of the War Crimes Act on
             Article 18
          3. Importing the War Crimes Act into Article 134
       B. The Anti-Torture Statute
          1. Territorial Application of the Anti-Torture Statute
          2. The Barrier to Importing Certain Torture
             Violations Under the General Article
 VII. THE INADEQUACY OF STATUS QUO
       A. General Considerations
       B. The Impact of Double Jeopardy
       C. The Role of State Responsibility
       D. Analysis of Common Charges Stemming from Current
          Conflicts: Comparing the War Crimes Act to Common
          Crimes under the UCMJ
VIII. FIVE VIEWS ON ADDRESSING WAR CRIMES COMMITTED BY
      U.S. MILITARY MEMBERS
        A. Codify the War Crimes Act as an Enumerated Article
           of the UCMJ
           1. Congressional Practice of Adding New UCMJ
              Articles as Needed
           2. Secondary Benefit
        B. The Blanket Sentence Limitation: Amend the General
           Article to Convert the Bar on Capital Offenses to a
           Sentencing Limitation
        C. A Partial Exemption for Title 18 Capital Offenses:
           Amend Article 134 to Lift the Bar on Capital Crimes
           Only for Clause 3 Offenses
        D. Amend Title 18 to Eliminate Capital Punishment for
           War Crimes
        E. Prosecute Military Members under the Laws of War by
           Military Commissions
  IX. CONCLUSION

Appendix 1
Appendix 2

During a house-to-house sweep in search of unauthorized weapons in the summer of 2003, U.S. soldiers enter the home of an Iraqi man. The man is brought outside and ordered to kneel on the ground. His hands are tied with plastic handcuffs. Inside, other soldiers search the house. After finding an AK-47 rifle, the squad leader takes" the rifle and orders the man to be brought inside. One solider cuts the plastic handcuffs and leaves the room. The squad leader lays the rifle near the man, and says aloud to his fellow soldiers, "I feel threatened. " He then fires two shots, killing the man. (1) Is this murder or a war crime?

An Iraqi prisoner in the custody of Navy SEALs is hung "Palestinian style" with his hands cuffed behind his back and hung suspended from his wrists. He is beaten by several men during a series of interviews and interrogations. An army sergeant is called in to help move the uncooperative prisoner, and when the unconscious man is lowered off of his wrists, blood flows out of his mouth. His death is later ruled as a homicide. (2) Is this assault, torture, or a war crime?

I. INTRODUCTION

Following reports of detainee abuse coming out of Iraq and Afghanistan, some U.S. military members have been tried and convicted under the Uniform Code of Military Justice (UCMJ) (3) for their involvement. Despite the international and war-related character of these offenses, allegations have been charged as common crimes under United States Code, Title 10 (e.g., aggravated assault, dereliction of duty, maltreatment of detainees, murder) even though conduct of members of the U.S. armed forces that constitutes a "grave breach" of the Geneva Conventions can be prosecuted a war crime in U.S. civilian courts under Title 18.

The War Crimes Act (4) of 1996 sought to implement the Geneva Conventions (5) by incorporating grave breaches of the Conventions and violations of other laws of war into the federal criminal code. This Act expanded federal criminal jurisdiction over U.S. military members by giving the United States jurisdiction to try War Crimes Act violations in federal civilian courts.