New Options for Prosecuting War Criminals in Internal Armed Conflicts

Article excerpt

Assume that instead of Australians, the US Army provided the main combat element to enter East Timor pursuant to United Nations authorization. (1) During an initial patrol, a US Army element encounters a local civilian who insists that an Indonesian officer who ordered the execution of two civilian villagers is hiding in a nearby house. After receiving command guidance, the patrol cordons and searches the house, and indeed finds an Indonesian lieutenant hiding inside. The lieutenant is taken to a joint detention facility and questioned about the allegation. He subsequently admits ordering the execution, but insists that he was merely obeying orders to eliminate key Timorese civilian leaders prior to the arrival of the UN force. Further investigation corroborates his confession by uncovering the bodies of the victims, both of whom had their hands bound behind their backs and were shot point-blank in the back of the head. The commander of the US task force now asks a simple but important question, "What do we do with him?"

The answer to this question depends on multiple considerations. Most of these considerations fall into the realm of national and international policy, including the desire to maintain positive relations with Indonesia, the concern over the appearance of impartiality on the part of the UN force, the availability and legitimacy of local criminal courts, and public relations concerns. However, before analyzing these policy considerations, it is first necessary to determine the legally permissible options available to the commander for dealing with this incident of summary execution. Assuming the command and the national and international chain of command express a desire to hold this officer accountable for his misconduct, the first instinct might be to hand him over to an international tribunal. However, unless and until the International Criminal Court becomes operational, (2) no such forum exists.

Until recently the only other legal option available to the command would be to turn the lieutenant over to local or Indonesian authorities. However, such a course of action could seriously undermine the probability of achieving justice, or at a minimum create the impression that justice was not a significant concern for the international community, and specifically for the force holding the offender. Today, however, the US commander might have one additional option: try the lieutenant before a US general court-martial. This article will outline the recent developments in international law justifying such a conclusion, and illustrate how these developments, when coupled with long-standing US military law, provide this new option for such cases.

International Law: The Foundation for Prosecuting War Crimes

When the Second World War came to an end, the trial of notorious war criminals by the International Military Tribunal at Nuremberg captured the attention of the international community. This episode in the history of the 20th century is most commonly associated with the dramatic exchanges between key members of the Nazi leadership and those selected to sit in judgment of their conduct. However, the most profound aspect of the cases tried before this tribunal, and other postwar military tribunals in both Europe and the Far East, was not the suspense associated with the trials, but their impacts on the law of war. Chief among these impacts was the evolution of the doctrine of individual criminal responsibility for violations of the laws of war. While this doctrine might seem an obvious element of the law of war to today's military and international legal professionals, it was in fact a relatively new component of international law in the immediate aftermath of World War II. (3)

During the period immediately following World War II, the international community revised the Geneva Conventions in an effort to establish a comprehensive regime for the protection of noncombatants during armed conflict. …