Self-Interest or Self-Inflicted? How the United States Charges Its Service Members for Violating the Laws of War

Military Self-Interest in Accountability for Core International Crimes, 2015

SMU Dedman School of Law Legal Studies Research Paper No. 195

33 Pages Posted: 2 Dec 2015 Last revised: 12 Jan 2016

See all articles by Chris Jenks

Chris Jenks

Southern Methodist University - Dedman School of Law

Date Written: May 29, 2015

Abstract

This chapter explores the aspects of self-interest implicated by the US military prosecuting its own service members who violate the laws of war under different criminal charges than it prosecutes enemy belligerents who commit substantially similar offences. The chapter briefly explains how the US asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the varied meanings of the term ‘war crimes’ and the way in which the 1949 Geneva Conventions can provide a benchmark against which the elements of offences, and their punishments, can be compared. While the US practice fares adequately in this comparison, the argument for a pragmatic approach to charging over the expressive value of a war crime charge is rendered untenable as a result of the disparate manner in which the US charges detainees when compared to its own service members. Ultimately, this chapter recommends adding armed conflict-related punitive articles to the UCMJ and increasing transparency in how the US holds its service members accountable for violations of the law of war.

Keywords: United States, accountability, Uniform Code of Military Justice, UCMJ, al Qaeda, Taliban, Rome Statute, ICC, International Criminal Court, Bales, murder, Calley

Suggested Citation

Jenks, Chris, Self-Interest or Self-Inflicted? How the United States Charges Its Service Members for Violating the Laws of War (May 29, 2015). Military Self-Interest in Accountability for Core International Crimes, 2015; SMU Dedman School of Law Legal Studies Research Paper No. 195. Available at SSRN: https://ssrn.com/abstract=2697255

Chris Jenks (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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