by Jessica Poarch

Who should be responsible for the stewardship of IHL (LOAC)? In his article published in the Winter 2013 Issue of the International Judicial Monitor, Richard J. Goldstone (First Chief Prosecutor for the ICTY) explains, “Until recent decades [IHL was] owned and fashioned by the military. They did not fall within the remit of civilian authorities. That ownership appears to have become lost and it has somehow, perhaps unwittingly, been ceded to civilian governments and to non-governmental organizations, both domestic and global. Today, this development appears to be taken very much for granted. This is unfortunate. We should examine the reason for this shift, ask whether a movement back would not be timely, sensible, and very much in the interests of the military establishment and, indeed, governments and their citizens.”

Goldstone’s article begins by explaining the history of IHL.  However, his article takes a curious turn towards the U.S.’s involvement with the international tribunal that is setup to prosecute war crimes and the Rome Statute (the Treaty that established the International Criminal Court (ICC)).

Goldstone explains that, although the U.S. has been very involved in aiding the international courts, it has refused to ratify the Rome Statute for fear that allowing U.S. citizens to fall under the jurisdiction of an International Tribunal would result in politically motivated prosecutions.

The author concludes: “In the result the ICC has jurisdiction to investigate and prosecute the nationals of any state for war crimes allegedly committed in the territory of one of the 121 nations that have to date ratified the Rome Statute. As remote as it might be, I would suggest that if a United States citizen were to be charged by the Court it would be highly embarrassing for his or her government and especially the military. Such a situation could be avoided if the United States military authorities were to regain ownership of humanitarian law. The most urgent and direct way of accomplishing this is for Congress to enact legislation that makes the core international war crimes defined in the Rome Treaty crimes under the domestic law of the United States. It would then be for the military judicial authorities to police those laws and investigate any of its own members who are alleged to have violated them. That would effectively oust the jurisdiction of the ICC.”

I find the author’s suggestion rather interesting.  U.S. Military personnel fall under the jurisdiction of the Uniform Code of Military Justice (UCMJ), which, if my understanding is correct, provides for the prosecution of war crimes. This suggest to me that the U.S. Military does have “ownership” of War Crimes prosecution in the U.S. and no additional legal framework is required to “oust” the jurisdiction of the ICC.

War Crimes prosecution is a delicate issue; if left completely up to the military it runs the risk of becoming victor’s justice but if shifted completely into the jurisdiction of the international tribunals, States must cede a certain level of sovereignty to that entity. It seems to me that this is not something the U.S. is willing to do regardless of if there is a domestic legal system in place that would prevent the ICC from gaining jurisdiction of a U.S. citizen.

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*A discussion of War Crimes under the Rome Statue:  See Section 1 of “War Crime under the Rome Statute of the International Criminal Court, with a Special Focus on the Negotiations on the Elements of Crimes” by Knut Dormann.

*For more details about prosecuting War Crimes under the UCMJ please visit http://www.au.af.mil/au/awc/awcgate/awc-law.htm#warcrimes. There you will find multiple resources on the issue of War Crimes and Crimes Against Humanity.