Law of War Workshop Deskbook - Higgins Counterterrorism ...

occupation, they stand for the proposition that jurisdiction over law ofwar violations may exit even where jurisdiction based on anaccompanying the force theory may not.c. Enemy Prisoners of War and Civilians.(1) For post-capture offenses, try by general courts-martial if civilian. If aPOW, try by general courts-martial or at other appropriate level ofdisposition under the UCMJ. See UCMJ, art. 2(a)(9).(2) For pre-capture offenses, try civilians by either military commission orgeneral courts-martial. Try POW by general court-martial or at otherlevel of disposition under UCMJ as would be appropriate for a U.S.soldier similarly charged.5. Potential Defenses. See generally R.C.M. 916; DA Pam. 27-161-2 at 245-251.a. Military Necessity. Action was demanded by military circumstances andwas done to prevent a greater harm; does not apply as a defense to thetaking of human life.b. Mistake of Fact. Traditional mistake of fact defense.c. Mistake of Law. Ignorance of the law may be asserted as a defense in warcrimes trials.d. Duress.(1) Traditional View. (Law Reports of Trials of War Criminals, U.N.War Crimes Commission (1949) Vol. XV, p. 174).(a) The act charged was done to avoid an immediate danger bothserious and irreparable;(b) There was no other adequate means of escape; and(c) The remedy was not disproportionate to the evil.(d) Einsatzgruppen case. “Let it be said at once that there is no lawwhich requires that an innocent man must forfeit his life or sufferserious harm in order to avoid committing a crime which hecondemns. The threat, however, must be imminent, real andChapter 8War Crimes and Command Responsibility210