A Rose by Any Other Name: How the United States Charges Its Service Members for Violating the Laws of War

in MILITARY JUSTICE IN THE MODERN AGE, Cambridge, Cambridge University Press, 2016

SMU Dedman School of Law Legal Studies Research Paper No. 357

16 Pages Posted: 20 Jun 2017

See all articles by Chris Jenks

Chris Jenks

Southern Methodist University - Dedman School of Law

Date Written: 2016

Abstract

This chapter examines the US practice of not charging its service members with war crimes. The chapter briefly explains how the United States 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 United States charges detainees when compared to its own service members.

Keywords: Military Justice, US, Bales, Afghanistan, Manual for Courts-Martial, Rome Statute, Guantanamo, Military Commissions, Al Qaeda, Taliban, Enemy, War Crime

Suggested Citation

Jenks, Chris, A Rose by Any Other Name: How the United States Charges Its Service Members for Violating the Laws of War (2016). in MILITARY JUSTICE IN THE MODERN AGE, Cambridge, Cambridge University Press, 2016; SMU Dedman School of Law Legal Studies Research Paper No. 357. Available at SSRN: https://ssrn.com/abstract=2989243

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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