War Crimes and Crimes Against Humanity have served as the foundation of international criminal law since the trial of Nazi war criminals in Nuremberg. The Rome Statute, which establishes the International Criminal Court (ICC) sets forth the current conception of War Crimes and Crimes Against Humanity and creates the separate crimes of Genocide and Aggression. The U.S. is not a party to the Rome Statue, and, in any event, the ICC is a court of last resort requiring that courts having primary jurisdiction be either unable or unwilling to prosecute international crimes. It is extremely unlikely that U.S. servicemembers would ever be prosecuted before the ICC.
This is not to suggest, however, that U.S. servicemembers are immune from prosecution for war crimes. The Uniform Code of Military Justice (UCMJ) has offenses that cover the conduct outlawed by the Rome Statute, and, in fact, imposed greater liability on American servicemembers than would be imposed under international law. For example, Article 8(b)(2) of the Rome Statute defines a crime of “intentionally directing attacks against the civilian population or against individual civilians not taking direct part in hostilities”, but only if the attack occurs in an “international armed conflict”. Under the UCMJ, however, the same conduct would violate multiple articles of the UCMJ with more severe consequences.
 Some of the articles that could be charged are: Violation of a Lawful Order, Art. 92 (violating rules of engagement); Assault, Art. 128; Murder, Art. 118; Manslaughter, Art. 119, just to name a few.
 A military court-martial in the U.S. can impose the death penalty for certain offense, including the murder of a non-combatant.
In fact, if Americans are going to be tried for war crimes or crimes against humanity, it will almost certainly be before a General Court-Martial or in U.S. District Court. Trials for war crimes or crimes against humanity pose unique challenges both to the prosecution as well as the accused. Here are some things to keep in mind if a servicemember finds himself or herself under investigation for, or charged with, offenses tantamount to war crimes or crimes against humanity.
 U.S. civilians can be tried in U.S. District Court pursuant to the Military Extrajudicial Jurisdiction Act (MEJA) 18 U.S.C. 3261. Civilian contractors accused of war crimes have been tried in U.S. District Court under this statute.
War Crimes and Crimes Against Humanity Occur Mostly in Conflict Zones.
While it may seem self-evident, many crimes alleging conduct that would constitute crimes against humanity or war crimes are going to occur in conflict zones under circumstances that differ significantly from normal life. I remember being told as an officer candidate in the U.S. Navy that the purpose of the Navy was to kill people and destroy buildings. That may seem harsh, but when the President orders the military into action, the military’s mission is to destroy an enemy’s military infrastructure, including its ability to wage war.
Neither the law of war nor crimes against humanity are intended to prevent combat, the killing of lawful military personnel, or prevent the death or destruction of military targets. They are intended to regulate how war is conducted. In the United States, the law of war and crimes against humanity are reflected in the Rules of Engagement (ROE). The ROE are intended to ensure compliance with the law of war and crimes against humanity as well as other strategic and political considerations. While the ROE may be tightened to reduce the circumstances under which force may be deployed or loosened to authorize a greater use of force, under no circumstance can force be authorized under circumstances where it would violate the law of war or crimes against humanity.
It is well-established in military law that obedience of an unlawful order is not a defense to a crime. In the case of United States v. Calley involving the trial of an Army Lieutenant for the murder of over 500 Vietnamese civilians in March 1968, Lieutenant Calley asserted in his defense that he was “following orders” claiming that his superiors had ordered the killings. During his court-martial, he testified, “I felt then–and I still do– that I acted as directed, I carried out my orders, and I did not feel wrong in doing so”. He was nevertheless convicted of 500 counts of premeditated murder and sentenced to life in prison and hard labor.
 In fact, Calley and the members of his command all carried pocket cards stating setting forth their obligations as American soldiers. One of the points on one of the pocket cards, The Enemy in Your Hands, states: “5) All persons in your hands, whether suspects, civilians, or combat captives, must be protected against violence, insults, curiosity, and reprisals of any kind.” Calley ignored this directive choosing instead to order the murders of innocent civilians under his control.
 Lieutenant Calley was later pardoned by President Nixon. Public opinion polling at the time showed that the public overwhelmingly disapproved of the sentence despite the clear violations of the laws of war.
Nevertheless, whatever happens in a conflict zone can be confusing and chaotic. A dozen people involved in a firefight are unlikely to remember events in the same way. In addition to confusion, combat stress (and subsequent Post Traumatic Stress Disorder) and fatigue (among other factors) should be different. In fact, if they are all in lock-step, that would be evidence that the story was rehearsed—perhaps with the assistance of overzealous government investigators or prosecutors. The opposing forces are unlikely to be located, or, if they are, will be unlikely to add anything to an investigation or trial.
 On July 30, 1945, the USS Indianapolis was torpedoed by a Japanese submarine resulting in a substantial loss of life. After the war ended, in an ill-conceived exercise of power, Captain Charles McVay, U.S. Navy, Commanding Officer of the USS Indianapolis was charge with dereliction of duty for failing to zig-zag while traveling from the Mariana Islands to the Philippines. To add insult to injury, Navy prosecutors called the Commanding Officer of the Japanese submarine, Commander Mochitsura as a witness against Captain McVay (who testified that zig-zagging would not have made a difference. This action by the government in Captain McVay’s case is widely considered shameful. His sentence was subsequently overturned by the Secretary of the Navy, and he retired as a Rear Admiral.
In a conflict zone, government investigations should not be accepted at face value. There is always a need to look further.
Know Your Rights.
When it comes to being interviewed, members of the military have greater rights to counsel than civilians do. Article 31 of the UCMJ, a military suspect must be informed of the accusation against him or her before being questioned. The military member must also be told that he or she does not have to answer questions. Traditional Miranda warnings for civilians are only required when there is a custodial interrogation, and even then, investigators are not required to inform the suspect of the allegations made against them. It is wise to take advantage of this right and request counsel.
An interview with a government agent, whether that agent is from NCIS, CID, OSI, FBI or any other agency, should not be taken lightly. They are experts at interviewing people and are highly trained in numerous interrogation techniques. Government agents often feign friendliness and understanding. They may even offer to help, if the service member tells them what they want to hear. Government agents are permitted to lie during interviews. They may offer a polygraph to “clear things up” when the purpose of a polygraph is to coerce a confession. No one should voluntarily submit to an interview without counsel present.
Sometimes it is beneficial to voluntarily talk to federal or military agents. It can redirect an investigation heading in the wrong direction or provide a defense that clears the suspect. It can also be the worse decision a suspect can make. Investigators often become tunnel visioned. Without an independent witness, whatever was said in an interview can be distorted, either intentionally or unintentionally. It is not unusual for investigators to say that a suspect “confessed” when the suspect denies saying anything incriminating. Without legal representation, however, the confession can become the first step to a wrongful conviction. Assert your right to counsel.
The Importance of Counsel.
The military justice system moves more rapidly than the civilian justice system and it is therefore necessary to engage defense counsel at the earliest opportunity as the case progresses from the investigative stage through the preferral of charges, through the Formal Article 32 Investigation, to the referral and trail of the charges. At every step the accused needs to understand the process and his or her rights. Should a civilian counsel be retained in the case? Probably.
Active-duty Judge Advocates from the various branches of the military tend to be highly competent, highly motivated lawyers, but they lack the experience of more seasoned veteran defense counsel. They also are part of the military structure and have less freedom to act in the confines of the military organization. A civilian attorney is free from these influences. Finally, if a civilian attorney is retained, the service member can continue to keep the military detailed defense counsel on the case.
Defenses to War Crimes and Crimes Against Humanity.
a. Cooperation/Plea Agreements.
Sometimes the best strategy to avoid a lengthy prison sentence is to cooperate with the government and enter into a plea agreement. Although not technically a defense, it can result in a substantially reduced sentence. However, cooperation with the government can be risky, and no one should attempt to negotiate a plea agreement without the assistance of experienced defense counsel. Agents, for example, have no ability to negotiate a plea agreement, and it is possible that a suspect may cooperate with agents believing that he or she is obtaining a more lenient sentence only to discover later that they will obtain no benefit.
The decision to cooperate and enter into a plea agreement is a complex one, or at least it should be. There are several factors to consider: how strong is the evidence against the suspect; does the suspect have valuable evidence; are there other mitigating factors? When and how to offer cooperation or offer a plea agreement are also decisions that require thought. An experienced defense counsel will know how to navigate these complicated issues.
b. The Accused Didn’t Commit the Crime.
The best defense to any war crime, or any other crime, is that the accused did not commit the crime. War crimes are different, however, because it is far more difficult to interview witnesses and collect evidence. This results in investigators making mistakes or becoming tunnel visioned. It may be possible to prove that the government is simply mistaken in its understanding of the events that occurred.
Closely related to the defense of ‘the accused did not commit the crime’ is the defense that the government cannot prove beyond a reasonable doubt that the accused committed the crime. The government has the burden of proving an accused guilty beyond a reasonable doubt, and in many cases, particularly in conflict zones, it is difficult for the government to gather reliable evidence. The absence of evidence can lead to a finding of “Not Guilty”.
Another common defense is “justification”, also referred to as self-defense or defense of others. In the military, a death, injury, or other act caused or done in the proper performance of a legal duty is justified and not unlawful. When raising the defense of justification, the focus is on the accused and whether his actions were consistent with his or her military duties. A soldier performing the duties of a sentry may find that an individual approaching the camp he or she is guarding refuses to comply with a challenge and fire at the person, only to find out later that the person was an unarmed civilian. If he or she were to be charged with a war crime (murder), the fact that the soldier was a sentry performing a lawful duty could create a justification defense.
Whether justification is a defense in any particular case requires a careful review and presentation of all of the facts. In the right case, it can be a powerful defense.
Another defense to a war crimes charge is “accident.” A death, injury, or other event which occurs as the unintentional and unexpected result of doing a lawful act in a lawful manner is an accident and excusable. Members of the military frequently deal with weapons and explosives designed to kill or maim people and destroy property. When artillery, missiles, or bombs (even “smart” munitions) fail to find their target and instead land on civilian targets such as schools or hospitals, there is not necessarily a war crime.
There are, and always have been, tragic accidents that occur on the battlefield. Under the Uniform Code of Military Justice, however, these accidents should not lead to a court-martial conviction. The question is whether the deaths that occurred were “unintentional and unexpected”. A useful example would be the use of small arms fire to clear a house where an insurgent is located. If, during the operation, small arms fire penetrates a thin interior wall killing a child in an adjoining room, the death of the child would be both unintentional and unexpected constituting a defense to any potential criminal charge.
e. Self-Defense/Defense of Others.
Another defense that can be raised in a war crimes scenario is self-defense or defense of others. Members of the armed services always have the right to engage a threat using deadly force if they reasonably believe that deadly force is necessary to avoid death or serious bodily harm. The same rule applies if the accused is acting in defense of another. The military rule of self-defense is essentially the same as the civilian defense of self-defense where it is commonly used as a successful defense.
When a member of the Armed Forces is in a conflict zone, however, the threats to the member’s life are much more common and real. The military officers who sit as members of the court-martial understand this reality more than a civilian jury ever could. Under the right circumstances, the defense of self-defense or defense of others can be compelling defenses.