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Does the United States Really Prosecute Its Service Members for War Crimes? Implications for Complementarity before the International Criminal Court

Published online by Cambridge University Press:  01 March 2008

THOMAS WAYDE PITTMAN  and
MATTHEW HEAPHY
Rights & Permissions [Opens in a new window]

Abstract

This article addresses the prosecution of service members by the United States for the commission of war crimes, specifically whether or not the offences charged in such cases can truly be considered ‘war crimes’. The answer has implications in terms of application of the complementarity provision of the Rome Statute, as well as the stigmatic effect that is avoided when the United States prosecutes ordinary criminal offences rather than war crimes.

Keywords

courts-martialInternational Criminal Courtmilitary justicewar crimes
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court
Information
Leiden Journal of International Law , Volume 21 , Issue 1 , March 2008 , pp. 165 - 183
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2008

The United States is often singled out for criticism because of its efforts to shield its service members from International Criminal Court (ICC) jurisdiction. For example, Professor (and former President of the International Criminal Tribunal for the former Yugoslavia) Antonio Cassese has written:

[M]any States still tend to claim exclusive jurisdiction over their nationals when they commit war crimes at home or abroad. Thus, for instance, in the USA the territoriality principle is widely accepted for criminal offences. However, when it comes to prosecuting US military personnel, the USA refuses to accept foreign jurisdiction, either by entering into agreements with foreign States to the effect that the national jurisdiction of the accused prevails (this also applies to NATO agreements) or by refraining from participating in such international treaties as the Statute of the ICC.Footnote 1

While Professor Cassese incorrectly states US foreign criminal jurisdictional policy and the effect of status of forces agreements,Footnote 2 he does point to an apparent dichotomy which exists between its general acceptance of the territorial principle for criminal offences and its policy to maximize jurisdiction over its service members for the commission of crimes while abroad.

The United States, a common law state, applies the territorial principle of criminal law. Therefore,

When an American citizen commits a crime in a foreign country, he cannot complain if required to submit to such modes of trial and to such punishment as the laws of that country prescribe for its own people, unless a different mode be provided by treaty stipulations between that country and the United States.Footnote 3

The United States accepts the jurisdiction of foreign states to try its nationals for crimes committed within their territories because, as a general rule, the United States does not exercise criminal jurisdiction extraterritorially.Footnote 4 Extraterritorial jurisdiction with respect to US service members and their offences, however, is rooted in constitutional law,Footnote 5 independent of any status of forces agreement.Footnote 6

Returning, however, to Professor Cassese's criticism of those states which claim exclusive jurisdiction over their nationals when they commit war crimes, it is fair to ask whether the United States does in fact prosecute war crimes committed by its service members. When referring to ‘war crimes’ throughout this article, we are speaking of violations of the law of armed conflict for which individual criminal responsibility exists under international law,Footnote 7 in contrast to what are generally accepted as domestic crimes.

The answer to this question may come as a surprise. One may readily assume, due to the high-profile nature of certain courts-martial during times of hostilities, that US service members are certainly subject to prosecution for war crimes, but this is not necessarily so. Referring to the well-known court-martial of US Army Lieutenant William Calley for crimes in connection with the 1968 My Lai Massacre in Vietnam, former Chief Judge of the US Court of Appeals for the Armed Forces Robinson O. Everett could only note that the murders and assaults of which Lieutenant Calley was convicted ‘probably were war crimes’.Footnote 8 As will be explained further below, the soldiers convicted in the Abu Ghraib prison abuse cases were no less doubtfully charged with war crimes, except perhaps in the loosest legal sense.

The importance of this issue is twofold. First, in order to avail itself of the complementarity provision of the Rome Statute,Footnote 9 it is advisable that the United States have the jurisdiction and capability to prosecute its own service members for the war crimes they are suspected of having committed that are within the jurisdiction of the Court.Footnote 10 Second, assuming jurisdiction and capability, the United States should in fact prosecute its service members in such a way as properly to stigmatize the underlying conduct as war crimes, not as ordinary crimes.Footnote 11 As will be seen below, the existing law and policies of the United States run contrary to this concept.

The purposes of this article are to examine the law and policies under which the United States purports to prosecute its service members for war crimes, to analyse whether such trials would affect their admissibility if brought before the ICC, and to consider the implications these matters might have for the future relationship of the United States with the ICC. The first section will identify the possibilities under US law for trying service members for war crimes. The second section will look at US law in relation to the Rome Statute, as well as how questions of admissibility are resolved at the ICC. The third section will consider the historical example of the case against Lieutenant Calley and – setting aside questions of jurisdiction – its hypothetical admissibility before the ICC today. The fourth section will look at the implications of US war crimes provisions and policies with respect to the US relationship with the Court.

1. Domestic prosecution of US service members for war crimes

We begin with an examination of the possible avenues by which war crimes allegedly committed by service members can be tried under existing US law.

1.1. The Uniform Code of Military Justice and war crimes

The US Constitution serves as the foundation for US military law, giving Congress the responsibility to make rules to regulate the military,Footnote 12 and establishing the President as Commander-in-Chief of the armed forces.Footnote 13 Congress enacted the military's current criminal code, the Uniform Code of Military Justice (UCMJ),Footnote 14 in 1950. The UCMJ is implemented by Presidential executive orders which collectively form the Manual for Courts-Martial (MCM).Footnote 15 The Preamble to the MCM explains the purpose of military law as being ‘to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States’.Footnote 16

The US Congress has constitutional authority to grant courts-martial jurisdiction over the crimes of US service members based on their status as members of the armed forces. This power is derived from Article I, Section 8, Clause 14, of the US Constitution, which concerns the making of ‘Rules for the Government and Regulation of the land and naval Forces’.Footnote 17 It is on the basis of this jurisdiction that Congress enumerated the offences in Articles 77–134 of the UCMJ.Footnote 18 In addition, Congress has the constitutional authority to proscribe ‘offenses against the law of nations’,Footnote 19 and thus has granted the armed forces court-martial jurisdiction under the UCMJ to ‘try any person who by the law of war is subject to trial by a military tribunal and . . . adjudge any punishment permitted by the law of war’.Footnote 20 This jurisdiction is not limited to service members, but extends to all persons. US Supreme Court cases considering the law of war and military tribunals, however, have involved only civilians and members of the opposing armed forces, not US service members.Footnote 21

Any US service member who might be tried by military tribunal for a violation of the law of war would instead be brought to trial by court-martial in order to avoid constitutional concerns regarding the right to a fair trial.Footnote 22 As such, there have been no instances of which the authors are aware wherein a US service member has been tried by military tribunal for war crimes since enactment of the UCMJ.Footnote 23 This leaves the court-martial, for all practical purposes, as the only means under the UCMJ to address such conduct.

For trial by court-martial the MCM promulgates a policy which provides that, in ordinary circumstances, a specific violation of the UCMJ should be charged rather than a violation of the law of war.Footnote 24 The US Congress has enacted specific offences in Articles 77–132 of the UCMJ. Lieutenant Calley, whose case will be discussed further in section 4, was charged with the offence of premeditated murder of over 100 My Lai villagers – including women and children – in violation of Article 118, rather than any violation of the law of war.Footnote 25 Articles 133 and 134 are the general UCMJ offences. Article 133 is a general article proscribing conduct unbecoming an officer and a gentleman. Article 134 is also a general article, but includes within it many specific offences as well.Footnote 26 We begin our analysis with a review of the specific offences under the UCMJ in order to determine whether any of these may be appropriately charged and considered as a war crime.

1.1.1. Specified offences under the UCMJ

There are four categories of offences under the UCMJ which may in some manner be related to war. The first category involves those which can only take place when war is formally declared by Congress or ordered by the president.Footnote 27 In other words, proof that the conduct took place in time of war is a required element of these (and only these) offences. They include the improper use of a countersign,Footnote 28 misconduct as a prisoner,Footnote 29 and spying.Footnote 30 The second category is that of offences which may be charged as capital during time of war. These include desertion,Footnote 31 wilful disobedience of the order of a superior commissioned officer,Footnote 32 misbehaviour as a sentinel,Footnote 33 murder,Footnote 34 and rape.Footnote 35 The third category involves offences for which the maximum punishment (non-capital) is increased during time of war. These include drug offences,Footnote 36 malingering,Footnote 37 and loitering on post by a sentinel.Footnote 38 The final category is that of crimes normally associated with wartime, but for which no formal declaration, executive order, or ‘time of war’ determination is needed in order to charge the service member.Footnote 39

Of the offences above, only two potentially involve a victim other than the United States and its armed forces or national security interests: rape and murder. For all the others, the underlying US interest is in maintaining and protecting good order and discipline in the services. The only reference in either the UCMJ or MCM by which one might find a legal basis to support the view that either rape or murder may be a war crime is found in a provision detailing the aggravating circumstances which justify a sentence of death in a capital case:

Death may be adjudged only if the members find beyond a reasonable doubt one or more of the following factors:Footnote 40 . . . That, only in the case of a violation of Article 118 [murder] or 120 [rape], the offense was committed in time of war and in territory in which the United States or an ally of the United States was then an occupying power or in which the armed forces of the United States were then engaged in active hostilities.Footnote 41

This provision relates strictly to the commission of rape or murder in time of war as an aggravating factor in sentencing. For conviction of the underlying crime, neither rape nor murder requires as an element of the offence proof that the conduct took place in time of war. As such, Lieutenant Calley's prosecutors were not required to prove an element similar to that in the Rome Statute for the war crime of wilful killing – that is, that the conduct took place in the context of and was associated with an international armed conflict.Footnote 42

The absence in the UCMJ of any offence which requires as an element that it took place in wartime or was associated with wartime is striking. In the Abu Ghraib prisoner abuse cases, for example, the accused soldiers were charged, inter alia, with the offence of maltreatment of a subordinate under Article 93.Footnote 43 This is an offence which may be perpetrated in peacetime or wartime, against any person subject to one's orders, not necessarily a prisoner. Furthermore, none of the Abu Ghraib prosecutions involved charges as violations of the laws of war.Footnote 44

While the Abu Ghraib offences received worldwide notoriety, from a legal standpoint the convictions have no more stigmatic effect to the offenders than if they were committed in a non-war context, such as against inmates serving time for domestic offences at a military confinement facility in the United States. Is this a distinction without a difference? We do not believe so. It seems obvious that the law should be precise in clarifying the important distinction between a criminal and a war criminal.Footnote 45 To hold otherwise is to invite doubt as to whether such atrocities as those which occurred in the village of My Lai or the prison at Abu Ghraib were even war crimes.

1.1.2. General articles of the UCMJ

Article 133, UCMJ,Footnote 46 criminalizes conduct which is unbecoming an officer and a gentleman. Article 134, Clauses 1 and 2,Footnote 47 proscribes conduct which is prejudicial to good order and discipline in the military or of a nature to bring discredit upon the armed forces. These articles reflect the application of customary military law or general usage of the military service.Footnote 48 Exactly what conduct applies under both articles is not specified. Decisions of the Supreme Court have, however, recognized that ‘the longstanding customs and usages of the services impart accepted meaning to the seemingly imprecise standards of Art[icle]s 133 and 134’.Footnote 49 The historical necessity for such articles can be found in the Court's opinion in Parker v. Levy:

Courts-Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. Upon any other principle, Courts-Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them.Footnote 50

Thus Articles 133 and 134 provide the military commander with a means to address criminal behaviour not otherwise specified under the UCMJ, so long as the behaviour is found to be that which is unbecoming an officer, prejudicial to good order and discipline, or service discrediting.

Since, as has been shown, the UCMJ does not contain any specific offences prohibiting the commission of war crimes, these articles represent a means by which courts-martial may nonetheless characterize the conduct of US service members as such. It is an avenue, however, which suffers from a fundamental flaw, that of lack of legal certainty. Courts-martial adhere to what is referred to in international law as the principle of legality or nullum crimen sine lege Footnote 51 by application of the ‘void for vagueness’ doctrine.Footnote 52 In other words, for a court-martial to exercise jurisdiction over an offence, the offence must be legislated to a degree of specificity such that the service member might reasonably know of the prohibited nature of the proscribed conduct. Significantly, offences charged under Articles 133 and 134 are often challenged as being unconstitutionally vague.Footnote 53 Perhaps more objectionable is that war crimes prohibitions should be left to such ‘seemingly imprecise standards’ when precise standards already exist in international law, for example, those embodied in the Rome Statute and its Elements of Crimes.Footnote 54

The general articles may serve a legitimate purpose when compensating for the inability of the US Congress to foresee the infinite variety of disciplinary incidents with which commanders might be faced, but they are ill-suited for the prosecution of war crimes. In contrast, the prohibitions contained in the Rome Statute concern foreseeable incidents based on historical precedent and strong consideration should be given to enacting them into the UCMJ. Doing so would ensure that service members are put on notice as to prohibited conduct and thereby eliminate concerns about vagueness of the law. Use of the UCMJ's general articles to prosecute war crimes also demeans the nature of such offences, in that the conduct is ultimately stigmatized not as a war crime, but as the offences are named: conduct unbecoming an officer and a gentleman, conduct which is prejudicial to good order and discipline, and conduct which is of a nature to bring discredit upon the armed forces. War crimes are all of this and more, and should be defined as such.

1.2. The War Crimes Act

The War Crimes ActFootnote 55 presents a final possibility for the prosecution of US service members for the commission of war crimes. Congress enacted the War Crimes Act primarily to establish criminal jurisdiction in US federal district courts over those who committed war crimes against US nationals.Footnote 56 Nonetheless, the act applies to anyone, including ‘a member of the Armed Forces of the United States’.Footnote 57 Those war crimes covered had been defined by reference to the applicable international conventions to which the United States is a party, and are now defined as grave breaches of Common Article 3 of the Geneva Conventions as enumerated and defined in the War Crimes Act.Footnote 58

Since its enactment in 1996, no US service member has been charged under the War Crimes Act, and it is unlikely ever to occur for two reasons. First, institutionally, it is highly improbable that the US Department of Defense would relinquish the prosecution of an active-duty service member to the Department of Justice for a crime of this nature. The US military leadership would undoubtedly express a strong desire to exercise jurisdiction through the courts-martial process. The more likely scenario might involve the prosecution in a federal district court of a service member who had been discharged from service prior to the offences being discovered, since the military would no longer have jurisdiction over the person. Second, even if the avenue of a court-martial were used to prosecute the offences, the War Crimes Act could not form the basis of a charge under Article 134, Clause 3.Footnote 59 This is because Clause 3 only permits court-martial jurisdiction over ‘federal offences not capital’, and the War Crimes Act clearly authorizes the death penalty for offences where ‘death results to the victim’.Footnote 60

2. War crimes under the Rome Statute and the question of admissibility

The US law on war crimes, particularly when prosecution of service members is limited in policy and practice to the specific and general articles of the UCMJ, leaves many gaps in comparison with the Rome Statute. A modern collection of war crimes law, reflected in Article 8 of the ICC's governing treaty, goes beyond the grave breaches of the Geneva Conventions – mirrored in the War Crimes Act but unlikely to be used against service members – to include other serious violations of the laws and customs applicable in international armed conflict, as well as acts prohibited in non-international conflicts.

Article 8 of the Rome Statute defines war crimes more precisely, and, in contrast to the UCMJ, requires that the prohibited conduct be committed in the context of and associated with either an international armed conflict or an armed conflict not of an international character.Footnote 61 By not specifying in the UCMJ, for example, unlawful deportation or transfer or unlawful confinement,Footnote 62 intentionally directing attacks against civilian objects,Footnote 63 or conscripting or enlisting children under the age of 15 into the military,Footnote 64 it is possible that US service members could not be held to account for these and other crimes. This reality undermines the US military's policy of punishing its own service members.

The United States voted against the Rome Statute in July 1998 under pressure from the US Department of Defense due to the lack of protection for US service members from the prosecution of war crimes by the future ICC.Footnote 65 The primary protection against ICC prosecution of US service members is the principle of complementarity, itself not at odds with the US preference to maximize jurisdiction over its service members who in theory could commit crimes within the jurisdiction of the Court in the territory of a state party. In effect, the ICC gives priority to investigations and prosecutions carried out by the state where the alleged crime was committed or by the country of the alleged perpetrator's nationality.Footnote 66

Insofar as the US policy is to protect its service members from the jurisdiction of the ICC, it is questionable whether prosecuting an accused for the commission of ordinary crimes would satisfy the complementarity provision of the Rome Statute. As Professor Schabas warns,

There is some doubt about the application of complementarity and the ne bis in idem [double jeopardy] rule to situations where an individual has already been tried by a national justice system, but for a crime under ordinary criminal law such as murder, rather than for the truly international offences of genocide, crimes against humanity and war crimes. It will be argued that trial for an underlying offence tends to trivialize the crime and contribute to revisionism or negationism.Footnote 67

Under the Rome Statute, a particular case is inadmissible if it is being or has been investigated or prosecuted by a state which has jurisdiction over it, unless that state is unwilling or unable genuinely to carry out an investigation or prosecution;Footnote 68 if it has been investigated by a state which has jurisdiction and it did not prosecute the person concerned, unless the decision resulted from unwillingness or inability genuinely to try the case;Footnote 69 if the person has already been tried for conduct which is the subject of the complaint, and a trial is not permitted under Article 20(3) (ne bis in idem);Footnote 70 or if the case is not of sufficient gravity to justify further action by the Court.Footnote 71 In practice, the Court has considered the issues of admissibility specified in Article 17 in two parts: complementarity in relation to national proceedings, and gravity.Footnote 72

Pre-Trial Chamber I of the ICC affirmed that a declaration of inadmissibility requires a positive finding that a relevant state is not unwilling or unable genuinely to carry out national proceedings.Footnote 73 It observed in the case of Prosecutor v. Thomas Lubanga Dyilo that ‘it is a conditio sine qua non for a case arising from the investigation of a situation to be declared inadmissible that national proceedings encompass both the person and the conduct which is the subject of the case before the Court’.Footnote 74 In the Lubanga case, the Pre-Trial Chamber did not deem the case inadmissible, reasoning that the Democratic Republic of the Congo, which had issued arrest warrants for Lubanga related to genocide, crimes against humanity, and other crimes under national law, did not undertake proceedings that encompassed the conduct that constituted the basis for the ICC Prosecutor's charges related to enlisting child soldiers.Footnote 75

The ICC also sets a high threshold for the crimes over which it has jurisdiction, namely ‘the most serious crimes of concern to the international community as a whole’.Footnote 76 The Court only has ‘jurisdiction in respect of war crimes in particular when committed as part of a plan or policy or as part of a large-scale commission of such crimes’.Footnote 77 Accordingly, the Prosecutor may decline to open an investigationFootnote 78 or the Pre-Trial Chamber may determine under Article 17 that a case is inadmissible if it is not of sufficient gravity.Footnote 79

3. The admissibility of a US war crimes case at the ICC

As outlined above, there are few possibilities under US law for the prosecution of US service members for war crimes, and it is particularly unlikely that a required element of proof for the underlying offences would be that the conduct took place in the context of and was associated with an international armed conflict, as is the case in the ICC Elements of Crimes.Footnote 80 The question therefore arises whether the absence of this element would result in the ICC determining that a case is admissible.

Consider the example of the 1970–1 case against Lieutenant Calley, charged with four counts of premeditated murderFootnote 81 related to the My Lai massacre during the Vietnam War. Lieutenant Calley was tried by court-martial rather than a civilian court and convicted of the premeditated murder of 22 infants, children, women, and old men, and of assault with intent to murder a child of about two years of age.Footnote 82 Disregarding the fact that the ICC's jurisdiction ratione temporis only permits the Court to try crimes allegedly committed after 1 July 2002,Footnote 83 the Calley case provides a well-documentedFootnote 84 study for examining how a US service member may be prosecuted for serious war crimes, particularly atrocities similar to those that the ICC is now considering. If the ICC were to analyse the Calley case for the purposes of admissibility as part of one of its investigations or prosecutions, would the fact that Lieutenant Calley's crimes were not charged as war crimes mean that a case before the ICC would be inadmissible?

In assessing the charges against Lieutenant Calley in his original court-martial, it is instructive to examine the elements of the crimes considered by the court-martial and the corresponding war crimes provisions in the Rome Statute and the elements of the crimes.Footnote 85 According to instructions issued by the military judge to the members of the court,

The elements of Specification 1 of the Charge are:

1. That an unknown number, but not less than thirty oriental human beings, males and females of various ages, whose names are unknown, occupants of the village of My Lai (4), are dead.

2. That their death resulted from the act of the accused, by means of shooting them with a rifle, on or about 16 March 1968, in the village of My Lai (4), Quang Ngai Province, Republic of Vietnam.

3. That the killing of the not less than thirty oriental human beings as I described them in the first element, by LT. Calley, was unlawful; and

4. That, at the time of the killings, LT. Calley had a premeditated design to kill.Footnote 86

The other three charges against Lieutenant Calley are similar, specifying the deaths of at least 72 other individuals, including a two-year-old child, some if not most of whom were unarmed civilians.Footnote 87

3.1. Corresponding war crimes in the Rome Statute

If the Rome Statute had been in force in the territory of the Republic of Vietnam in March 1968, the situation duly referred, and war crimes charges brought against Lieutenant Calley, the allegations would not necessarily have been limited to murder. The only war crime in the Rome Statute which refers to murder as ‘murder’ applies only in armed conflicts not of an international character.Footnote 88 In the context of and associated with the Vietnam War – arguably an international armed conflict – possible Rome Statute charges against Lieutenant Calley could include wilful killingFootnote 89 and intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in the hostilities.Footnote 90

The elements of the crime of wilful killing indeed vary from those used for premeditated murder in the Calley court-martial. First, the perpetrator must have killed one or more persons. Second, the person or persons killed must have been protected by one or more of the Geneva Conventions. Third, the perpetrator must have been aware of the factual circumstances that established the protected status. Fourth, the conduct must have taken place in the context of and have been associated with an international armed conflict. Fifth and finally, the perpetrator must have been aware of the factual circumstances that established the existence of an armed conflict.Footnote 91 As compared with the elements as instructed by the judge in Calley, and taking into account the facts laid out in the court-martial elements, there is little in common with the Rome Statute elements, save the act or conduct of the perpetrator.

3.2. Complementarity of national proceedings

In assessing whether a domestic court-martial for the crime of murder in Article 118 of the UCMJ would make inadmissible a charge of the war crime of wilful killing under Article 8(2)(a)(i) of the Rome Statute, the Pre-Trial Chamber, as noted above, would seek to determine for the purposes of admissibility whether ‘national proceedings encompass both the person and the conduct which is the subject of the case before the Court’.Footnote 92 If the Court were considering the inadmissibility of a case involving wilful killing by Lieutenant Calley under Article 17(1)(b) and (c), and Article 20(3), the US court-martial against Lieutenant Calley would encompass the person and conduct. However, if the Pre-Trial Chamber were to expand the test to include the other elements, including awareness of the protected status of the person or persons killed, the inadmissibility inquiry could ultimately lead to another case against Lieutenant Calley.

The Rome Statute elements of intentionally directing attacks against civilians would prove more challenging in terms of determining the inadmissibility of a case against Lieutenant Calley at the ICC. First, the applicable conduct involves directing an attack. Second, the object of the attack must be a civilian population as such or individual civilians not taking direct part in the hostilities. The third element is the perpetrator's intent that the civilian population as such or individual civilians not taking direct part in the hostilities be the object of the attack. The fourth and fifth elements are the same as required for wilful killing – in other words, proof of context of and association with international armed conflict of which the perpetrator was aware.Footnote 93 The primary issue with charging this ICC war crime is that the US court-martial did not try Lieutenant Calley for directing an attack, and thus the parties did not present the required proof thereof. Lieutenant Calley, a platoon leader, argued in his defence that Captain Ernest Medina, his commanding officer, ‘had told me to shoot them’.Footnote 94 However, the possibility remains that Lieutenant Calley could have directed the men in his platoon to attack the My Lai villagers without any superior orders. A court-martial for murder does not encompass the same conduct. As an alternative, charges of dereliction in the performance of duties – essentially for ordering an attack prohibited under the Geneva Conventions – under UCMJ Article 92, however vague – may satisfy the inadmissibility test if the court-martial elements of the crime require directing an illegal attack.Footnote 95

3.3. Sufficiency of the gravity of the case

The ICC Prosecutor and Pre-Trial Chamber may not even arrive at the point of analysing the elements of the alleged crimes committed by Lieutenant Calley.Footnote 96 Apart from the Court's lack of jurisdiction over this hypothetical case, the Prosecutor or the panel of judges might determine that the Calley case would not meet the gravity threshold discussed above. The Prosecutor noted in his response to communications regarding Iraq that, in addition to the general gravity requirement of crimes within the jurisdiction of the Court, Article 8(1) of the Rome Statute sets out a specific gravity threshold for war crimes committed as part of a plan or on a large scale. If satisfied that the specific gravity threshold has been met, the Prosecutor also considers the general gravity requirement of Article 53(1)(b), taking account of factors such as the number of victims of serious crimes such as rape or wilful killing. According to the Prosecutor, thousands of wilful killings would suffice to meet the general threshold.Footnote 97 In considering the charges of the war crime of wilful killing or intentionally directing attacks against civilians against Lieutenant Calley in the context of the ‘situation’ in Vietnam, the case would probably not meet the gravity threshold.

First, the subject of the case – the death of hundreds of civilians – while atrocious, is probably not systematic (pattern of incidents) or large-scale for the purposes of admissibility under the Rome Statute.Footnote 98 A more likely case would be one against a more senior officer who orchestrated a series of such massacres. Second, Lieutenant Calley would not be considered one of the more senior officials in the state entity, organization or armed group to which he belongs, also required by Pre-Trial Chamber I.Footnote 99 Third, Lieutenant Calley would not fall within the category of most senior leaders suspected of being most responsible, considering his role when the state entity, organization or armed group commits large-scale or systematic crimes within the jurisdiction of the Court and the role played by such entities, organizations or armed groups in the overall commission of the crimes within the jurisdiction of the Court in the relevant situation.Footnote 100 Within the organization of the US Army, Lieutenant Calley was a junior officerFootnote 101 who would not have had any influence over the policies or actions carried out outside his platoon.

In sum, the United States would have few worries about the prosecution of a service member such as Lieutenant Calley at the ICC. Bearing in mind the first situations before the Court, the ICC's work focuses on the most serious atrocities and the most senior leaders. The United States has a working legal system, unlike many of the first situation countries, which willingly and ably prosecutes service members. Considering the ICC's record thus far in assessing the admissibility of cases, the Court would not retry such a case that encompassed the same person and conduct.

4. War crimes prosecutions: reconciling the Rome Statute and the UCMJ

The difference between the war crimes provisions in the Rome Statute and those which are in fact used in prosecutions of US service members raises questions as to whether US service members could ever be brought before the ICC for war crimes committed in the territory of a state party, and, in particular, whether the principle of complementarity provides a sufficient safeguard for crimes that rise to the level of gravity required by the Rome Statute.

These questions raise a more fundamental issue: why should the United States be required to update its law or change the way it prosecutes its own service members if it does not wish to join the ICC? The answer lies in how the United States wishes to coexist with the ICC. While the United States may choose not to join the Court,Footnote 102 its service members would be well served by a military legal system that investigates and prosecutes war crimes under the international legal norms, such as the Geneva Conventions, that have been developed and supported by the United States and to an extent incorporated into US law.

Given the breadth of possible war crimes charges under the Rome Statute and the existing possibility for prosecutions under US law, there are several steps the United States should take in its prosecution of service members for war crimes. First, the United States should update its military justice code and the War Crimes Act to include war crimes reflective of international law. Such changes would put US service members on notice and adequately define conduct as war crimes. However, such a dramatic change in the UCMJ may not be possible in the near future for political reasons. A second step would be for the United States to change its policy by charging violations of the law of war as provided under Article 18 of the UCMJ. A third step would be for the US Congress to amend Article 134, clause 3, of the UCMJ to permit prosecutions by court-martial under the War Crimes Act. Any of these steps would put service members on notice as to the severity, nature, and punishment of war crimes. Only then would the United States in fact be trying its own service members for war crimes as war crimes.

5. Conclusion

Given its policy of opposition to the ICC, one must ask whether the United States has the jurisdiction and capability to prosecute war crimes committed by its service members. The foregoing has shown that it arguably does, but that the possibility of exercising that jurisdiction is quite remote. This is not to say that US military commanders fail to punish wartime misconduct, as the prosecution of the soldiers for maltreating detainees in the Abu Ghraib prison makes clear. The problems lie, however, both in the failure to characterize war crimes conduct according to its internationally accepted legal nomenclature and in the doubt which exists about whether prosecution of ordinary crimes satisfies the complementarity provision of the Rome Statute.

Above all, the UCMJ should provide reasonable notice to US service members of what behaviour in war is criminally prohibited, even if that behaviour might ultimately form the basis of a case found to be inadmissible before the ICC. It is not enough to enumerate only those offences which are traditionally viewed as necessary to ensure survival of the forces in the face of combat (e.g., desertion, disrespect, and disobedience). The UCMJ should specifically proscribe at minimum those war crimes which exist to deter victimization of the civilian population, and the Rome Statute is an ideal place to look. In doing so, the UCMJ can finally and properly serve as an enactment of morality in armed conflict, allowing soldiers, sailors, airmen, and marines to know without doubt the gravity of the missions before them. This can only enhance military discipline.

References

1. A. Cassese, International Criminal Law (2003), at 297 (emphasis in original). The US concern over this jurisdiction drives its ICC policy. As the US Department of State Legal Adviser recently stated,

In our view, the Rome Statute falls short. We object on principle to the ICC's claim of jurisdiction over persons from non-party states. And we are particularly concerned by the ICC's power to self-judge its jurisdiction, without any institutional check. We hope that the prosecutor and members of the court will honor their jurisdictional limits, and that the ICC will act only when a state with jurisdiction over an international crime is unable or unwilling to do its duty. But we cannot ignore the chance that a prosecutor might someday assert jurisdiction inappropriately, and the Rome Statute offers no recourse in such a situation. Our attempts to address such concerns during the drafting of the Statute failed – leaving us unable to join. (See US Department of State Legal Adviser John B. Bellinger III, The United States and International Law, Remarks at The Hague, The Netherlands, 6 June 2007, available at http://www.state.gov/s/l/rls/86123.htm.)

2. US policy and practice is to maximize US jurisdiction, not refuse foreign jurisdiction. Every year hundreds of US service members are tried in foreign criminal courts. See Annual Report of the Code Committee on Military Justice (2006), at 13–14, maintained on the website of the US Court of Appeals for the Armed Forces, available at http://www.armfor.uscourts.gov/annual/FY06AnnualReport.pdf.

3. Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994); Extradition of Charles Philip Smith, 82 F.3d 964, 965 (10th Cir. 1996).

4. Statutory exceptions exist. There are approximately 30 categories of criminal offences under US federal law with extraterritorial application, set forth in Title 18, United States Code (USC). The Military Extraterritorial Jurisdiction Act, 18 USC § 3261 et seq., does not (despite its name) apply to active-duty service members, but to persons employed by or accompanying the armed forces outside the United States. It does, however, apply to service members no longer subject to the UCMJ by reason of discharge from service, who committed crimes abroad while serving on active military duty.

5. Solorio v. US, 483 US 435 (1987). The state practice of punishing one's own soldiers for violations of the laws of war was developed in the 19th and early 20th centuries, with a view towards maintaining good order and discipline. M. Bothe, ‘War Crimes’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), Vol. I, at 382, n. 3.

6. The existence of a status of forces agreement provision concerning foreign criminal jurisdiction serves to clarify the relative right to proceed between sovereign states in any given circumstance, and does not of itself grant extraterritorial criminal jurisdiction to the United States over its service members. Thus, the US policy of maximizing the jurisdiction over its service members for crimes committed abroad is consistent with a constitutional ‘exception’ to its adherence to the common law territorial principle of criminal law.

7. The term ‘war crimes’ was not used in the four Geneva Conventions, but rather ‘grave breaches’ to denote the most serious acts perpetrated in violation of the Conventions. See, e.g., Art. 147 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), 75 UNTS 287. However, Art. 85(5) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977) (Protocol I), UN General Assembly, A/32/144, 15 August 1977, characterizes these grave breaches as ‘war crimes’, as does Art. 8 of the Rome Statute. See also Bothe, supra note 5, at 388:

In order to constitute a violation of the laws of war, and thus, a war crime, an act or omission must be relevant in terms of a rule of the laws of war, i.e., it must have been perpetrated not just during, but in connection with an armed conflict.

It is for this reason that the Elements of Crimes of the Rome Statute requires proof that the conduct took place in the context of and was associated with an armed conflict. The requirement also exists for both ad hoc international criminal tribunals established by the UN Security Council.

8. R. Everett, ‘American Servicemembers and the ICC’, in S. Sewall and C. Kaysen (eds.), The United States and the International Criminal Court (2000), 137 at 149, note 24 (emphasis added).

9. Rome Statute, Art. 17(1). This provision is applicable even though the United States is not a party to the Rome Statute, since the ICC has jurisdiction over crimes committed within the territory of a state party. See W. Schabas, An Introduction to the International Criminal Court (2004), at 74–5.

10. As Chief Judge Everett explains,

In light of Article 17 [of the Rome Statute], the ability of the United States to prevent the trial of American service members by the ICC will be greatly enhanced if US courts have jurisdiction to try service members for any crime that falls within the ICC's jurisdiction. (Everett, supra note 8, at 142.)

11. Although the Rome Statute's jurisdiction also extends to genocide and crimes against humanity, this article's analysis is limited to war crimes.

12. US Constitution, Art. I, § 8.

13. US Constitution, Art. II, § 2.

14. 10 USC § 801 et seq.

15. Manual for Courts-Martial, United States (2005 Edition) (hereinafter MCM).

16. MCM, Part I, Preamble, para. 3.

17. US Constitution, Art. I, § 8, Clause 14; Solorio, supra note 5, at 441.

18. 10 USC §§ 877–934.

19. US Constitution, Art. I, § 8, Clause 10.

20. UCMJ, Art. 18. Courts-martial jurisdiction under the law of war is also implied in Art. 21, UCMJ, which states that provisions granting jurisdiction to courts-martial do not deprive military tribunals of concurrent jurisdiction for violations of the law of war. Note the distinction in terminology under US military jurisprudence between a military tribunal (or commission) and a court-martial.

21. See, e.g., In re Quirin, 317 US 1 (1942); In re Yamashita, 327 US 1 (1946); Madsen v. Kinsella, 343 US 341 (1952).

22. Chief Judge Everett writes that

[T]rial by military commissions, rather than by general court-martial, would deprive the service member of many safeguards available in a court-martial. Among those would be the appellate review that Congress has prescribed for trials by court-martial. Thus, trial by court-martial is preferable, even if a military commission would be constitutionally permissible. (Everett, supra note 8, at 151, note 49.)

23. It should be noted here that neither the UCMJ nor the MCM define ‘war crimes’ per se. Rule for Court-Martial 201(f)(1)(B)(i)(a), in the MCM, generally refers to a ‘crime or offence against the law of war’. The Discussion accompanying Rule for Court-Martial 201(f)(1)(B)(ii), written in the context of punishment permitted by the law of war, refers by example to Art. 68 of the Convention relative to the Protection of Civilian Persons in Time of War (1949), 75 UNTS 287. The US Army Field Manual 27–10, The Law of Land Warfare (18 July 1956), para. 499, defines a war crime as ‘the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.’ See also the definition in the War Crimes Act, 18 USC § 2441, infra note 55.

24. MCM, Rule for Court-Martial 307(c)(2), Discussion. ‘Ordinarily persons subject to the code should be charged with a specific violation of the code rather than a violation of the law of war’. See also US Army Field Manual 27–10, The Law of Land Warfare (18 July 1956), para. 507(b), which provides that

The United States normally punishes war crimes as such only if they are committed by enemy nationals or by persons serving the interests of the enemy state. Violations of the law of war committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice, and, if so, will be prosecuted under that Code.

25. The charges brought against Lieutenant Calley can be found at the University of Missouri-Kansas City website at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_ctchar.htm. With reference to the Calley case, one US Army lawyer has found that ‘[i]n subsequent conflicts, service members have been prosecuted for a variety of offenses; however, American service members have not been charged with . . . war crimes.’ M. White, ‘Charging War Crimes: A Primer for the Practitioner’, (2006) February The Army Lawyer, Department of the Army Pamphlet 27-50-393.

26. For example, the offence of kidnapping is specified under Art. 134. See MCM, IV-113, para. 92.

27. See UCMJ Art. 56; 10 USC § 856; MCM, Rule for Court-Martial 103(19); US v. Avarette, 41 CMR 363 (C.M.A. 1970); US v. Shell, 23 CMR 110 (C.M.A. 1957); US v. Bancroft, 11 CMR 5 (C.M.A. 1953); US v. Gann, 11 CMR 12 (C.M.A. 1953); US v. Anderson, 38 CMR 582, 584 (A.B.R. 1967), aff'd, 38 CMR 386 (C.M.A. 1968).

28. UCMJ Art. 101; 10 USC § 901

29. UCMJ Art. 105; 10 USC § 905

30. UCMJ Art. 106; 10 USC § 906.

31. UCMJ Art. 85; 10 USC § 885.

32. UCMJ Art. 90; 10 USC § 890.

33. UCMJ Art. 113; 10 USC § 913.

34. UCMJ Art. 118; 10 USC § 918.

35. UCMJ Art. 120; 10 USC § 920.

36. UCMJ Art. 112a; 10 USC § 912a.

37. UCMJ Art. 115; 10 USC § 915.

38. UCMJ Art. 134; 10 USC § 934.

39. Misbehaviour before the enemy, UCMJ Art. 99; 10 USC § 899; subordinate compelling surrender, UCMJ Art. 100; 10 USC § 900; and forcing a safeguard, UCMJ Art. 102; 10 USC § 902.

40. MCM, Rule for Court-Martial 1004(c).

41. MCM, Rule for Court-Martial 1004(c)(6).

42. Rome Statute (Elements of Crimes), Art. 8(2)(a)(i); US v. Calley, 48 CMR 19 (1973). See the elements of the offences for which Lieutenant Calley was tried in Instructions from the military judge to the court members in US v. First Lieutenant William L. Calley, Jr., March 1971, available at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/instructions.html.

43. UCMJ Art. 93; 10 USC § 893. Proof of the offence of maltreatment of a subordinate requires that (i) the victim was subject to the orders of the accused; and (ii) the accused was cruel toward, oppressed, or maltreated the victim in the alleged manner. ‘Subject to the orders of’ includes persons under the direct or immediate command of the accused and all persons who by reason of some duty are required to obey the lawful orders of the accused, even if those persons are not in the accused's direct chain of command. US Department of the Army Pamphlet 27–9, Military Judges’ Benchbook (15 September 2002), para. 3–17-1. The other charges have included conspiracy, UCMJ Art. 81, 10 USC § 881; dereliction of duty, UCMJ Art. 92, 10 USC § 892; making a false official statement, UCMJ Art. 107, 10 USC § 907; assault, UCMJ Art. 128, 10 USC § 928; and indecent assault, UCMJ Art. 134, 10 USC § 934. None of these offences require as an element of proof that the conduct took place in the context of and was associated with an international armed conflict.

44. Had they been, the charges would have so indicated. See MCM, Rule for Court-Martial 307(c)(2), Discussion, supra note 24: ‘In the case of a person subject to trial by general court-martial for violation of the law of war, the charge should be: Violation of the Law of War’.

45. Under the Rome Statute, the offenders in the Abu Ghraib cases might have been charged with the ‘war crime of outrages upon personal dignity’, which requires as elements of proof that (i) the perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons; (ii) the severity of the humiliation, degradation, or other violation was of such degree as to be generally recognized as an outrage upon personal dignity; (iii) the conduct took place in the context of and was associated with an international armed conflict; and (iv) the perpetrator was aware of the factual circumstances that established the existence of an armed conflict. Rome Statute (Elements of Crimes), Art. 8(2)(b)(xxi).

46. UCMJ Art. 133; 10 USC § 933.

47. UCMJ Art. 134; 10 USC § 934.

48. Parker v. Levy, 417 US 733 (1974), 743.

49. Ibid. at 746–7, quoting Martin v. Mott, 12 Wheat. 19 (1827), 35.

50. Ibid., quoting Martin v. Mott, at 35–6.

51. Cassese, supra note 1, at 139–157.

52. Parker v. Levy, supra note 48, at 740–2.

53. Ibid. See also US v. Rogers, 54 MJ 244 (2000); US v. Boyett, 42 MJ 150 (1995).

54. Significantly, the concept of the Elements of Crimes in the Rome Statute originated with the United States. Schabas, supra note 9, at 35–6.

55. 18 USC § 2441. The Act was amended by the Military Commissions Act of 2006 and may be the subject of additional amendments in the 110th Congress, including the Restoring the Constitution Act of 2007. The original Act provided as follows.

(a) Offense. – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition. – As used in this section the term ‘war crime’ means any conduct – (1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party; (2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907; (3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or (4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

The 2006 amendment strikes paragraph (c)(3) above; replaces it with ‘which constitutes a grave breach of common Article 3 (as defined in subsection (d)) and in the context of and in association with an international armed conflict not of an international character; or’; and enumerates and defines grave breaches of Common Article 3, including: torture, cruel and inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages. The 2006 amendments to the Act do not fundamentally change their applicability to US service members. If at all, the amendments would make prosecution of US service members less likely since enumerating the offences arguably limits the subject-matter jurisdiction of US civilian courts, thereby decreasing the number of crimes that could be prosecuted.

56. Everett, supra note 8, at 144. See also M. Zaid, ‘Will or Should the United States Ever Prosecute War Criminals?: A Need for Greater Expansion in the Areas of Both Criminal and Civil Liability’, (2000) 35 New England Law Review 448.

57. supra note 55, 18 USC § 2441(b).

58. supra note 55, 18 USC § 2441(c).

59. UCMJ Art. 134; 10 USC § 934. Clause 3 offences involve non-capital crimes or offences which violate federal law including law made applicable through the Federal Assimilative Crimes Act, 18 USC § 13. Even if this avenue were possible, US Army Major Martin White has concluded that a ‘decision to charge a service member with violations of the law of war by assimilating federal law is rife with political repercussions’. Likewise, he concludes rather candidly that a decision to charge a service member with a violation of international law ‘effectively treating him like a war criminal . . . would be an admission that an American service member violated international law’ and thus is unlikely to occur. White, supra note 25.

60. supra note 55, 18 USC § 2441(a). Chief Judge Everett raises the potential that the authorization for capital punishment might be severable where the death penalty is not sought, thus allowing prosecution as a non-capital offence under Art. 134. Everett, supra note 8, at 144. The last US service member to be executed for UCMJ offences was Army Private John A. Bennett, who was hanged on 13 April 1961 following his conviction in 1955 for the rape and attempted murder of an eleven-year-old girl in Austria. D. Velloney, ‘Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases’, (2001) 170 Military Law Review 1, at 12.

61. See Rome Statute (Elements of Crimes), Art. 8(2).

62. Ibid., Art. 8(2)(a)(vii).

63. Ibid., Art. 8(2)(b)(ii).

64. Ibid., Art. 8(2)(b)(xxvi).

65. Everett, supra note 8, at 137.

66. See Rome Statute, Art. 12. Art. 18 of the Rome Statute sets out a procedure under which the Prosecutor, having commenced an investigation upon a state party referral or proprio motu, is required to notify states parties and other states which may normally exercise jurisdiction in a particular case, and may defer to national investigations.

67. Schabas, supra note 9, at 88. See also Prosecutor v. Bagaragaza, Decision on Rule 11 bis Appeal, Case No. ICTR-05–86-AR11 bis, App.Ch., 30 August 2006, in which the Appeals Chamber was confronted with a Prosecution request to refer a case to Norway where the charged crime of genocide is not explicitly proscribed. Norway submitted that its provisions against homicide and bodily harm would cover the underlying acts alleged in the indictment against Bagaragaza, but the Appeals Chamber held that it could not sanction referral of a case to a jurisdiction for trial where the conduct could not be charged as a serious violation of humanitarian law. Para. 17:

[I]n the end, any acquittal or conviction and sentence would still only reflect conduct legally characterized as the ‘ordinary crime’ of homicide. That the legal qualification matters for referrals under the Tribunal's Statute and Rules is reflected inter alia in Article 9 reflecting the Tribunal's principle of non bis in idem.

Unlike the Rome Statute, Art. 10(2)(a) of the ICTY Statute and Art. 9(2)(a) of the ICTR Statute contain an ‘ordinary crimes’ exception which permits trial by the International Tribunal if ‘the act for which he or she was tried was characterized as an ordinary crime’. In the absence of such a provision in the ICC Statute, an ‘ordinary crimes’ prosecution could satisfy the complementarity provision if one considers it to be a State's duty to exercise in any legitimate form its criminal jurisdiction over those responsible for international crimes. Rome Statute, sixth preambular paragraph. Likewise, the ne bis in idem principle embodied in Art. 20 of the ICC Statute may be construed broadly so as to preclude trial before the ICC where an ‘ordinary crimes’ prosecution has already occurred, so long as the trial was not a ‘sham’ as under the Art. 20(3) exceptions, similar to Art. 10(2)(b) of the ICTY Statute and Art. 9(2)(b) of the ICTR Statute. See C. Van den Wyngaert and T. Ongena, ‘Ne bis in idem Principle, Including the Issue of Amnesty’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), Vol. I, at 724–6. Art. 93(10)(a) of the ICC Statute (Other Forms of Cooperation) distinguishes between ‘a crime within the jurisdiction of the Court’ and ‘a serious crime under the national law of the requesting State’, thus suggesting that national ‘ordinary crimes’ prosecutions that may not meet all of the jurisdictional requirements of the Court could satisfy the complementarity provision with respect to the conduct in question.

68. Rome Statute, Art. 17(1)(a).

69. Rome Statute, Art. 17(1)(b).

70. Ibid., Art. 17(1)(c). Art. 20(3) provides:

No person who has been tried by another court for conduct also proscribed under article 6, 7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

(a) Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court; or

(b) Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.

71. Ibid., Art. 17(1)(d).

72. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, ICC-01/04–01/06–8, 10 February 2006, para. 29.

73. Ibid., at para. 32.

74. Ibid., at para. 31. The Prosecutor recognized and applied these criteria in the presentation of evidence in the Darfur situation alleging 51 counts of war crimes and crimes against humanity. Situation in Darfur, Sudan, Prosecutor's Application under Article 58 (7), ICC-02/05–56, 27 February 2007, paras. 253–67.

75. Prosecutor v. Thomas Lubanga Dyilo, supra note 72, paras. 33–9.

76. Rome Statute, Art. 5(1).

77. Ibid., Art. 8(1).

78. The ICC Office of the Prosecutor declined to open an investigation into alleged crimes committed in Iraq due to insufficient gravity under Art. 17(1)(d) of the Rome Statute. See Update on Communications Received by the Prosecutor, Annex: Iraq response, 10 February 2006, http://www.icc-cpi.int/organs/otp/otp_com.html.

79. Rome Statute, Art. 17(1)(d). Pre-Trial Chamber I has established a three-part test for determining whether the gravity threshold in the Rome Statute is met: (i) is the conduct that is the subject of the case either systematic (pattern of incidents) or large-scale (due consideration should also be given to the social alarm caused to the international community by the relevant type of conduct)?; (ii) considering the position of the relevant person in the state entity, organization or armed group to which he belongs, can it be considered that such person falls within the category of most senior leaders of the situation under investigation?; and (iii) does the relevant person fall within the category of most senior leaders suspected of being most responsible, considering (1) the role played by the relevant person through acts or omissions when the state entities, organizations or armed groups to which he belongs commit systematic or large-scale crimes within the jurisdiction of the Court, and (2) the role played by such entities, organizations or armed groups in the overall commission of the crimes within the jurisdiction of the Court in the relevant situation? Prosecutor v. Thomas Lubanga Dyilo, supra note 72, paras. 46, 63.

80. Rome Statute (Elements of Crimes), Art. 8(2)(a)–(b). The war crimes included in Art. 8(2)(c), (e), by contrast, include an element requiring that the conduct took place in the context of and was associated with an armed conflict not of an international character.

81. supra note 25.

82. US v. Calley, 22 CMA 534 (1973).

83. Rome Statute, Art. 11(1).

84. The Calley case, decided on 29 March 1971, followed by sentencing on 31 March 1971, was the subject of several appeals in US military and civilian courts. See, e.g., US v. Calley, 22 CMA 534 (1973); US v. Calley, 46 CMR 1131 (1973); 48 CMR 19 (1973); Calley v. Callaway, 382 F. Supp. 650 (MD Ga. 1974); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975).

85. The burden of proof for each element at this court-martial and at the ICC is the same: beyond a reasonable doubt. See Instructions from the military judge to the court members in US v. First Lieutenant William L. Calley, Jr., supra note 42; Rome Statute, Art. 66(3).

86. Instructions from the military judge to the court members in US v. First Lieutenant William L. Calley, Jr., supra note 42.

87. Ibid. According to one account, the massacre involved the killing of over 500 unarmed civilians by US service members. D. Linder, ‘An Introduction to the My Lai Courts-Martial’, http://www.law.umkc.edu/faculty/projects/ftrials/mylai/Myl_intro.html.

88. Rome Statute, Art. 8(2)(c)(i).

89. Ibid., Art. 8(2)(a)(i).

90. Ibid., Art. 8(2)(b)(i).

91. Rome Statute (Elements of Crimes), Art. 8(2)(a)(i).

92. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, supra note 72, para. 31. The Court would not need to make a determination of inadmissibility under Article 17(1)(b) or (c), since an investigation and prosecution would have already occurred in the Calley case.

93. Rome Statute (Elements of Crimes), Art. 8(2)(b)(i).

94. See http://www.law.umkc.edu/faculty/projects/ftrials/mylai/myl_Calltest.html for the testimony of Lieutenant Calley in his defence. Captain Medina, charged with overall responsibility for the My Lai massacre, was ultimately acquitted on all charges. H. Bigart, ‘Medina Found Not Guilty of All Charges on My Lai’, New York Times, 23 September 1971. According to one commentator, Captain Medina was the only US officer prosecuted under the theory of command responsibility during the Vietnam war. Note, ‘Command Responsibility for War Crimes’, (1973) 82 Yale Law Journal 1274.

95. In theory, a commander could be charged with being derelict in the performance of his duties by failing to comply with a treaty, including the Geneva Conventions. In order to prove that this commander was derelict in his duties, proof of the order would be required. The maximum sentence which may be imposed under the UCMJ for a wilful dereliction of duty is six months, however, regardless of the circumstances in which it occurred.

96. The Office of the Prosecutor noted in its response to communications received in regard to Iraq that ‘In light of the conclusion reached on gravity, it was unnecessary to reach a conclusion on complementarity.’ See Update on Communications Received by the Prosecutor, Annex: Iraq response, supra note 78, at 9. However, in analysing the admissibility of the Lubanga case, Pre-Trial Chamber I first considered complementarity of national proceedings followed by gravity. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, supra note 72, paras. 29–75.

97. See Update on Communications Received by the Prosecutor, Annex: Iraq response, supra note 78, at 8–9.

The number of potential victims of crimes within the jurisdiction of the Court in this situation – 4 to 12 victims of wilful killing and a limited number of victims of inhuman treatment – was of a different order from the number of victims found in other situations under investigation or analysis by the Office. It is worth bearing in mind that the OTP is currently investigating three situations involving long-running conflicts in northern Uganda, the Democratic Republic of the Congo and Darfur, Sudan. Each of the three situations under investigation involves thousands of wilful killings as well as intentional and large-scale sexual violence and abductions. Collectively, they have resulted in the displacement of more than 5 million people. Other situations under analysis also feature hundreds or thousands of such crimes. (Ibid.)

In May 2007 the Prosecutor opened an investigation into crimes allegedly committed in the Central African Republic, noting that ‘[t]he information we have now suggests that the rape of civilians was committed in numbers that cannot be ignored under international law’. ICC Press Release, ‘Prosecutor opens investigation in the Central African Republic’, 22 May 2007, http://www.icc-cpi.int/press/pressreleases/248.html.

98. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, supra note 72, paras. 46, 63. As noted above, Lieutenant Calley was charged with the wilful killing of approximately 100 individuals and was convicted of wilful killing of 22. See supra notes 82 and 86.

99. Ibid., at para. 63.

100. Ibid.

101. See Chain of Command in Relation to the My Lai Incident, http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_CHA.HTM.

102. The United States informed the Secretary-General of the United Nations of its intention not to become a party to the Rome Statute on 6 May 2002 and stated that ‘The armed forces of the United States will obey the law of war, while our international policies are and will remain completely consistent with these norms.’ In its policy statement on the ICC, the United States stated that it would disengage from the Court while asking other nations to respect the US decision not to join the Court. See US Under Secretary of State for Political Affairs Marc Grossman, American Foreign Policy and the International Criminal Court, Remarks to the Center for Strategic and International Studies, Washington, DC, 6 May 2002, available at http://www.state.gov/p/us/rm/9949.htm. Since that time the United States has negotiated over 100 bilateral non-surrender agreements to protect US service members and citizens from the jurisdiction of the Court. See R. Boucher, ‘US Signs 100th Article 98 Agreement’, press statement, 3 May 2005, http://www.state.gov/r/pa/prs/ps/2005/45573.htm. The US Congress has also passed legislation denying military and economic aid to nations refusing to sign such agreements, including the American Servicemembers’ Protection Act (http://www.state.gov/t/pm/rls/othr/misc/23425.htm) and amendments to the annual Foreign Operations Appropriations legislation. Recently, the United States has reiterated its intention not to ratify the Rome Statute, while also renewing its offer to assist the Court on the Darfur situation, consenting to the trial of Charles Taylor, the former Liberian leader, by the UN Special Court for Sierra Leone on ICC premises, and calling for a mutually respectful modus vivendi on the ICC. See Bellinger, supra note 1.