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

• Author: Ohman, Mynda G.

1. 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?

1. 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.

   Violations of a federal criminal statue, such as the War Crimes Act, may be tried before courts-martial. Article 134 of the UCMJ, the "general article," allows the military to import non-capital federal criminal statutes and charge them in a military court-martial. This broadens the subject matter of criminal offenses available to military courts. Not only are the punitive articles of the UCMJ (6) available to the military prosecutor, any federal criminal statute that applies where the crime was committed could also be charged under the general article. For example, this provision would generally allow military authorities to incorporate the War Crimes Act into military prosecutions and charge U.S. service members with certain war crimes.

   While the UCMJ has the flexibility to import federal law into trials by courts-martial, it has its limits. Courts have interpreted the language of the general article to bar importation of federal capital crimes into UCMJ proceedings. Where federal civilian courts have jurisdiction over criminal offenses that authorize the death penalty, these same Title 18 crimes may not be brought before a court-martial under Article 134. Turning again to the War Crimes Act, for the most serious war crimes--those in which the victim dies as a result of the accused's conduct--the statute authorizes the death penalty. Such crimes cannot be charged as war crimes in a trial by court-martial, and military prosecutors must charge the underlying conduct as a violation of another punitive article.

   The reliance on Title 10 to prosecute war crimes creates an anomaly. The Department of Defense (DoD) is normally the agency that prosecutes members of the U.S. armed forces. Federal criminal law allows for punishment of certain war crimes, yet the application of Title 18 war crimes is severely restricted in military courts-martial. The effect of this limitation is that courts-martial must continue to largely rely on the offenses defined by Title 10, instead of Title 18, when charging crimes that occur during an armed conflict. As a result, the most egregious crimes under the laws of war committed by U.S. military members are charged as often less severe common crimes under the UCMJ. For example, the intentional, fatal shooting of a person protected by the Geneva Conventions will likely be charged as murder under Article 118, and torture will likely be charged as an aggravated assault under Article 128. Compared to Title 18 crimes, war-related offenses tried by courts-martial will often carry lower maximum penalties. (7)

   The UCMJ currently defines offenses that fall into three broad categories: crimes that are purely military offenses with no corresponding civilian provisions, (8) common crimes that appear in both the UCMJ and in most state and federal criminal codes, (9) and offenses that by definition or explanation (10) are related to military operations, combat, or war. (11) Despite its intentional, direct application to military operations and discipline, the UCMJ has failed to keep up with evolving international humanitarian laws affecting warfare. When it comes to war crimes, the code largely languishes in the preGeneva Conventions era. (12) During nearly every conflict, reports of serious misconduct by U.S. forces emerge. The DoD responds by bringing such offenders before courts-martial, but the resulting convictions are for common crimes, not war crimes.

   This article analyzes the limitations and disadvantages of charging war crimes under the UCMJ and examines five proposals for closing the gap between Title 10 and Title 18 regarding war crimes. Ultimately, this article proposes adding a new war crimes article to the UCMJ to: 1) align the UCMJ with existing federal criminal law; 2)better insulate U.S. military members from the use of military commissions; and 3) enjoy the preventive benefit of having a separate article that specifically defines and punishes war-related crimes.

   Part II of this article provides an historical backdrop for analyzing the possibility of using the military commission to try U.S. service members for offenses against the law of war. This section outlines the history of military statutory law from the 1775 Articles of War to the UCMJ. This part then describes how military jurisdiction was exercised and expanded since the implementation of the initial American Articles of War, eventually leading to the creation and evolution of the military commission.

   Parts III, IV, and V focus on the mechanics of the UCMJ. To analyze how military members are and can be charged with war crimes under current military law, it is crucial to understand where courts-martial and military commissions derive their authority, how the general article is used to import federal criminal offenses into trials by court-martial, and how Congress has limited the reach of the general article. Part III examines the statutory grant of jurisdiction to general courts-martial under the UCMJ. It focuses in particular on UCMJ Article 18, which grants general courts-martial jurisdiction to act in two spheres of competence: as courts-martial trying offenses contained in Title 10, and as military commissions exercising jurisdiction under the law of war. This part goes on to examine the legislative history of the UCMJ and analyze Congress's intent regarding the use of military commissions to try U.S. service members. Part IV explains the UCMJ's general article and...