Chapter 6: Trial and Punishment for Battlefield Misconduct

The War on Terror and the Laws of War, Second Edition in 2014 by the OUP

90 Pages Posted: 11 May 2014 Last revised: 7 Apr 2015

Date Written: May 7, 2014


This Chapter discusses trial and punishment for battlefield misconduct in the context of the United States war on terror since 2001. After discussing the basis for military commission trials for war crimes, the chapter discusses the extension of war crimes liability to non-international armed conflicts through adjudications by the International Criminal Tribunal for the Former Yugoslavia and its sister tribunal in Rwanda, and traces the development of the U.S. military commissions at Guantanamo, and the two Military Commissions Acts ultimately enacted to authorize them. There is nothing fundamentally irrational or controversial about the use of military courts to try war crimes. The very notion of the war crime is derived from a history of “warriors judging warriors” in military courts vested with such jurisdiction. A primary purpose of such tribunals was to compel compliance with the laws and customs of war. Indeed, the advent of civilian international tribunals vested with jurisdiction over such crimes is a relatively new phenomenon. What is unclear, however, is how this historically valid use of military “war courts” can be reconciled with the designation of the struggle against terrorism as an armed conflict — a lack of clarity that becomes particularly profound in the context of criminal prosecutions. For the United States, procedural obligations related to the use of military tribunals to try terrorism offenses have been defined by a combination of the Supreme Court decision in Hamdan v. Rumsfeld, the subsequent evolving statutory framework for military commissions detailed by Congress in the 2006 and 2009 Military Commission Acts (“2006 MCA” and “2009 MCA” respectively), and continuing judicial review and clarification of the results of military commission proceedings. Substantive clarity, however, has remained elusive. Although the MCA purports to define with precision those offenses validly subject to the jurisdiction of military commissions, internal inconsistencies in the statute, coupled with continuing Ex Post Facto and other judicial challenges to military commission subject matter jurisdiction, have contradicted this congressional purpose.

This chapter will explore the issues surrounding the use of courts whose jurisdiction is derived from the LOAC for the trial of operatives captured in the course of the armed struggle against transnational terrorism. It will assert why such use can and should be considered legitimate, but also how this legitimacy is contingent on respecting substantive and procedural limitations which are inherent in the LOAC. While the debate on the legitimate use of such tribunals will no doubt continue for some time, it seems increasingly apparent that if the characterization of this armed conflict as an armed conflict is valid, there is no logical reason why individuals who transgress certain fundamental LOAC norms should be immune from the jurisdiction of military tribunals simply because their misconduct is subject to the concurrent jurisdiction of civilian courts.

Suggested Citation

Brenner-Beck, Dru and Hansen, Victor, Chapter 6: Trial and Punishment for Battlefield Misconduct (May 7, 2014). The War on Terror and the Laws of War, Second Edition in 2014 by the OUP, Available at SSRN:

Victor Hansen

New England Law | Boston ( email )

154 Stuart St.
Boston, MA 02116
United States

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