74 MILITARY LAW REVIEW [Vol. 167
AUTHORITY TO COURT-MARTIAL NON-U.S. MILITARY PERSONNEL FOR SERIOUS VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW COMMITTED DURING INTERNAL
MAJOR JAN E. ALDYKIEWICZ1
WITH CONTRIBUTIONS BY MAJOR GEOFFREY S. CORN2
Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.3
The soldier, be he friend or foe, is charged with the protection of the weak and unarmed. It is the very essence and reason of his being. When he violates this sacred trust, he not only profanes his entire cult, but threatens the fabric of international society.4
The two preceding quotations reflect what has become a fundamental precept of international law: that individuals can and should be held accountable for conduct which violates fundamental norms of international law. The first quotation, from the Nuremberg War Crimes Tribunal, reflects the basic doctrine of individual responsibility-that although international law generally regulates the conduct of states, it has developed certain proscriptions applicable to individuals. This doctrine has become well-settled in international law, and is a basic tenet of the law of war. The second quote, written by General MacArthur when he approved the death sentence for Japanese General Yamashita, reflects the concept that, when a member of the profession of arms transgresses fundamental restrictions on warrior conduct, the misconduct disgraces the entire profession of arms. This notion, although solidly grounded in the history of the law of war, seems less understood today than at any time in the history of our armed forces. Yet it is a critical component of the law of war, for throughout history it has served as the motivation for calling upon warriors to sit in judgment of the misconduct of other warriors.
The issue of war crimes, and the appropriate venue for holding those who commit them individually responsible, recently became a major interest for the international community. The result has been an almost myopic focus on the creation and utilization of international criminal tribunals to sit in judgment of warrior misconduct. Unfortunately, the lack of understanding of the basic sentiment expressed by General MacArthur has resulted in virtually no consideration of the propriety of using military tribunals to perform this function. While the conflicts in the former Yugoslavia and Rwanda have been the scene of widespread law of war violations, the primary response by the international community has been the use of international criminal tribunals, with no participation from the profession of arms. This stands in stark contrast with the post-World War II response to war crimes.
Although the international war crimes tribunals were the most visible venues for conducting war crimes trials, military courts-martial and other
military tribunals accounted for the vast majority of such trials. According to Telford Taylor:
But [the usual channels of military justice] remained open and, numerically, the Nuremberg and Tokyo trials were a small part of a very large picture. In Europe, the United States Army judge advocate was made responsible for the prosecution of crimes committed against American troops, or in Nazi concentration camps that had been overrun and "liberated" by American forces. Under this authority, some 1,600 German war crimes defendants (as compared with 200 at Nuremberg) were tried before Army military commissions and military government courts, and over 250 death sentences (as compared with 21 at Nuremberg) were carried out. About an equal number were tried by British, French, and other military courts established by the countries that had been occupied by Germany.
Precise figures are lacking, but by the spring of 1948 some 3,500 individuals had been tried on war crimes charges in Europe, and 2,800 in the Far East, taking no account of trials held by the Soviet Union or China. It would be a conservative estimate that some 10,000 persons were tried on such charges from 1945-1950.5
These numbers clearly suggest that, had the international community not relied upon the use of military tribunals to sit in judgment of war criminals at the end of World War II, it would have been impossible to bring them all to justice. During the course of post-conflict peace support operations, U.S. forces might be confronted with the similar issue of how to deal with individuals accused of committing war crimes who come under the control of U.S. forces. This article proposes that the United States should once again place war criminals before general courts-martial under the control of a U.S. commander, allowing warriors to sit in judgment of such conduct. Of course, cases tried during the post-World War II era involved crimes committed during international armed conflicts with the victors sitting in judgment of their vanquished enemies .Although the proposed use of U.S. courts-martial would involve crimes committed in a purely internal conflict not involving U.S. forces, this article demonstrates that developments in international law provide the necessary legal predicate for invoking the jurisdiction of a general court-martial to try indivi
uals who committed certain war crimes during the course of such a conflict.
In July 1999, U.S. forces entered the Yugoslav province of Kosovo under the authority of a United Nations resolution authorizing the use of all necessary means to restore order and stability to that province. This was the culmination of a NATO-led military campaign designed to compel Yugoslavia to respect certain fundamental rights of Kosovar Albanians. This campaign, coupled with intense diplomatic pressure, resulted in a Yugoslav grant of authority for the presence of NATO forces in Kosovo. Thus began another ground force operation that-although conducted in response to an "invitation" to enter the territory of another sovereign state-took on all the traditional characteristics of a military occupation.
During the course of the U.S. presence in Kosovo, it is likely that U.S. forces might detain individuals who participated in some of the atrocities that characterized the conflict between the Serbian Armed Forces and the Kosovo Liberation Army. Because the fighting between these two organizations was considered an armed conflict within the purview of the International Criminal Tribunal for Yugoslavia (ICTY), the current wisdom is that offenders should be detained pending indictment by that tribunal. Another option is to subject these individuals to the jurisdiction of local criminal tribunals that will be eventually established by the United Nations authority in Kosovo. But is there a third option? Could these individuals be subjected to a general courts-martial pursuant to the Uniform Code of Military Justice (UCMJ)? This article suggests that such a course might not be as radical as it first appears. Instead, a close analysis of the UCMJ, recent developments in the customary law of war, and the tradition of providing remedies for violations of the law of war, reveals that the time may be right to pursue this course of action.
Consider the following hypothetical. An infantry squad, deployed as part of the American contingent of the NATO forces in Kosovo (KFOR), conducts a routine patrol in the American sector of Yugoslavia and apprehends a Yugoslav lieutenant accused of numerous atrocities. The alleged crimes include the murder of twenty innocent Kosovar Albanians during the Kosovo conflict, a non-international armed conflict6 to which the United States was not a party. The KFOR commander orders the suspect detained pending an investigation. The investigation substantiates the allegations.7
After he is briefed on the investigation's findings, the KFOR commander asks his legal advisor: "Can I court-martial the lieutenant? If so, at what level of court and for what offenses?" This article proposes the following answer by the legal advisor: "Yes sir, you can court-martial the
lieutenant at a general court-martial for violating the law of war."8
Although many judge advocates, legal scholars, and perhaps even members of Congress might disagree with this conclusion,9 analysis of recent developments in the law shows that this conclusion is legally sound. Thus, although there might be compelling policy objections to exercising jurisdiction in such a situation, the predicate issue of legality would be satisfied.
The resolution of the issue created by this hypothetical turns on determining the authority of a general court-martial convening authority (GCMCA) to convene a general court-martial to prosecute non-U.S. service members10 for serious violations of international humanitarian law11 committed during an internal armed conflict in which the United States did not participate. While any GCMCA could convene such a court, the jurisdiction of the court would certainly be challenged by the accused. Thus,
resolution of this issue will ultimately depend upon a judicial determination of the jurisdiction of the court over the accused.
The authority to subject such an accused to a general court-martial is found in Article 18 of the UCMJ, which governs the jurisdiction of general courts-martial. Article 18 provides in relevant part: "General courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war."12 As evident from this language, the grant of jurisdiction is not limited by the nationality of the accused, the nationality of the victim, the military status of the accused, the parties to the conflict in which the offense was committed, or the time when the offense was committed. The only requirements to trigger this grant of jurisdiction are that...