Continuum Crimes: Mllitaty Jurisdiction over Foreign Nationals Who Commit International Crimes

• Author: Major Michael A Sexton
• Pages: 01

I Introduction

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corporation commits crimes E a fiction Crimes are always committed only by p e r s ~ n ~ . ~

American mhtary commanders do not have adequate means of punishing mdniduala who commit human rights abuses which mag adverielg affect military missions. In October 1993, cheering crowds of Somalis dragged the bod>- of B United States soldier through the streets of Mogadishu The scene rippled through America's collec-tire C O ~ E C ~ O U ~ ~ ~ S B

and conveyed the trurh that soldiers often face enemy elements who ignore the ruler of armed conflict. Presently, re~onalethnic conflicts fueled b? hatred religlaus differences and tribal rivalries create conditions in which the codified l a w of war do not adequately restrain the conduct of the partimpants

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Although renonal ethnic conflicts seldom pose direct threats to American security. United Stater forces have a vital role in promoting collective security and protectmg human rights around the world.5 America requires her soldlers to comply with the laws of war anytime they deploy During peace operatmns, Amencan forces often encounter opposmg forces who are not bound by the laws of wari and who disregard applicable rules of humanitarian

To B lemer extent. rhe %upplernental pmtocoli haw erohed m u cusfamazy mer-national 1s- Ssr Protocol I Addmonal fa the Geneia Conventme of 12.4uwaf 1949and Relating to the P~otectianof V~ctmx

Of

International hmed Conflicts. aprnrd far ezgnufutr at Berne 12 Dec 1977. U N Doc A 32 141 4nner I. rqrmlrd ~n 16 I

L41

139: 11975 [hereinafter Proroeol 11, Protocol I1 Additional to the Geneva Conventme ai 12 Aumrr 1919 and Relafmg to the Prorectmn oithe Wctmi of Nom-Internatma1 Armed Conflicts ojxned for azgnotsn at Berne, 12 Dec 197i, CN Doc A32 144

REG 27-1, JUDGE .ADYOC~

LEOV Smxi para 2-lg 13 Feb 19951 lrequlrlng The Judge Adwcate General fO review Operatlanl p h i and _le% of engapmenr for corn-pliance with ahlipatma under lnternafmal Isu

United States farces have conducted operatmns in areas where the foreign government either cannot or will not enforce mternaimnal law againat its citizens As a result. deploied commanders confront gaps in compliance between their farces and foreign natmnalj aho violate clear pnnciples of international law,

American commanders have authanty to convene a general caurt.martia1 or B military commission to punish foreign natmnals who violate the law of war during an mternatmnal armed confllct lo

This article argues that Congress should modify the Knifarm Code of hlilitap- Justice cUCIIJ1 to @\'e deployed commanders rhe authority to prosecute foreign natmnals who commit mternatmal crimes during operations other than war

mentine mechaniam Id at i

By Its veri nature. international criminal law evolved from interactions between sovereign states International 18%. codifies specific offenses through treaties" and also recognizes crimes based upon wolatmns of customary mternatianal law l2 Just as the IBRE of war orimnated from militarv practices developed over inter.

national enmind law defines offensee as 'a result of universal condemnation of those activities and general interest in cooperating to suppress them ''x Accordingly, any jmte has juzisdictmn to punish international crimes 15

Continuum of Conflict Hmmtanan U ~ i i f a n ~ e

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Figure 1

Figure 1 illustrates the range of operational deployments. As

F~gure 1 shoi\s. the political objective diffuses raw military power into defined, and often overlapping, roles and missmns

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Enforcing international law standards in American military muits E not simply an aspirational goal unrelated to the accomplishment of military objectives Military doctrine maintains its focus on winning the nation's wars, but it also contemplates deplayments across a broad array of operations short of war.16

The necessity for a commander to "direct every operation toward a clearly defined, decisive, and attainable objective" is fundamental to American military doctrine.': Wartime objectwee can be simply stated. During the Gulf War, for example, the Chairman of the Joint Chiefs of Staffproclamed, "First. we're gomg to cut it [the Iraqi iirmyl off, and then we're going to kill it ''16

On the other hand, peace operations employ military power with discrete discipline designed to create OP sustain the conditions under which political or diplomatic activities may proceed.'g Peace operations require commanders to use military force m a restrained manner to complement diplomatic, mformationai, economic, and humanitarian efforts designed to achieve the ultimate political objectire.Za BY the same token, commanders must consider prosecutions of foreign nationals only in light of overall operational objectives. Army Field Manual 100.23 recognizee that "settlement, not victory 1s the ultimate measure af euccess, though settlement is

DEP'? OF .h!w FIELD ~L&VIAL 100-5 O P I ~ ~ I O X

114 June 19931 [heremafter

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100-23. PLACE OPEWT [hereinafter Fil 100.231

'. Fbl 100-5 "pra note 16, BL 2-4 The ultimate purpoie of mar L? to destroy the enemys forces and >,dl to fight The ulf~mare ohiectner of aperatlons orher than war might be more dificvlt to define yet docrnne ~lafesthat 'the) too must be clear from rhe begnmng" Id F d d .Manual 100.5 reifafes the ent~eal

~mponmce of definmg

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terraln aluncture atlines of cammumcation $LOCsi 01 other vital a i e ~ ~ edbenllal to accomphshmg the mmmn These becoke the bails for all rubordinate plans A~fmns that do not conrrlbufe ro achlermgfhe objec-tlre must be awided"

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, A Commonding Prrsmce Colin Pauell Rrossuiis Jittery Americans-and P8;rh.d out the imqis N-EIVEIVEEK

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le Bngadler General Morris J Boyd. Peace operations A Capslone Doctrine, Mn

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" DEP'T OF ARM F~ELDilmuu 100.7 DEC~WE FORCE THI ARMY IN THEATER

OPERATIUSS 8-1 '31 June 19931 The manus1 reminds commanders that operatmns

other than ~ a r burld on an 1"-place dlplomatrc struciure whlch reqmrer ipecd %en31

LiiitY and eoardinaiian with nonmhtsq argannnatms .As B result. operarmnsl-le\el command and unit? of command 'may be clouded "Id at 8.5

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rarely achie>able through miha7 efforts done "21 Thus enforcing international humanitarian law can be an integral part of the commander s overall mismn

T\io examples from Operation Uphold Democracy illustrate the opportumtj- and the danger of using military courts to enforce Inter. national humanitanan law On 31 July 1994 Security Council Resolution 940 authorized Umted Katmns member states to form a multinational force and 'hse all necessary means" to end the mill. tar? dictatorship inside Haiti and to allow the le@timate authorities to return to United States farces deployed to Haiti uith the explmt m ~ m n to "establish and maintain a stable and secure envi-ronment '23

On 20 September 1994. Haitian police and militia beat protest-mg Haitian citizens in full >iew of Amencan soldiers. At least one perron died as a result of the beatings. and the American news media widely publicized the soldiers failure to intervene 24 \Vel1 before this Incident. however, American commanders had identified the problem of controlling B ~ ~ O U S

crimes and had requested a change to the rules of engagement The modified rule8 would have allowed soldiers to use necessaq force against "persona committing serious criminal acts "z6 The approved modification to the rules of engagement alloaed soldiers to use necessary force to detain per-sons committing homicide, aggravated msault. arson, rape, and robber? 26 Lnrortunately, the troops did not receiie the revised rules until 21 September 1994 The media widely reported that the beat. ings farced the change zi

In this situation. clear jurisdiction to punish fore1g-n citizens under the LC31J could have helped prevent the human rights abus-er by the Haman police. Protecting peacefully demonstrating citi-Zen8 probably would have advanced the commander's missmn to establish a stable and secure environment Human rights treaties establish rights and duties between governments and their citizens and therefore do not require third parties to prevent abuses.2a Kevertheless. the commander on the ground should have the discre. tion to intervene baaed on his assessment of mission requirements In appropriate situations, the commander could substitute the power of cnmmal deterrence for the use of military force Echoing Justice Oliver Wendell Holmes, the mission sratement would become the commander's articulation of the "circumstances in which the public force will be brought to bear upon men through the

COUTtS."29

At the other extreme, soldiers can be so focused on invettigat~ n g and remedying alleged human rights violatione that they fail to execute them military mission. On the evening of 30 September 1994, an American counterintelligence officer left his place of duty on a self.appomted humanitanan mission.30 Captain Lawrence Rockwood feared that Haitian police inside the National Penitentmy were abusmg, killing, and torturing Haitian prison-e r ~ . ~ '

Captain Rockwood based his fears solely on speculation. Bggoing to the penitentiary Captain Rockwood diverged from the stated mmsiun of ertablishing a "stable and secure ennronment"32 and pursued his own agenda rather than that of his commander

The commander convened a general court-martial against Captain Rockwoad for being absent from his place of duty without leave and disobeying B lawful order.33 After the prosecution proved the case, the court.martial convicted Captain Rockwood because he...