Law of War Workshop Deskbook - Higgins Counterterrorism ...

2. As discussed below, Congress has provided general courts-martial andmilitary commissions with requisite authority to try and punish war criminalseffectively. UCMJ, arts. 18, 21.a. Because the international law of war is part of the law of the land, seeU.S. Const., art. VI, these courts can directly apply international law intrials, outside the U.S., of enemy personnel charged with war crimes. Norecourse need be made to substantive criminal statutes of the U.S.. SeeFM 27-10, & 505e.b. Violations of the law of war committed within the U.S. by those notsubject to the punitive articles of the UCMJ will usually constituteviolations of federal or state criminal laws. They should be prosecutedunder these municipal laws. See FM 27-10, & 507b.c. Violations of the law of war that constitute grave breaches or violations ofCommon Article 3 are now subject to prosecution under federal law, if theperpetrator or the victim is a national of the U.S. or a member of the U.S.armed forces, if the perpetrator is found in the U.S. after the crime iscommitted, or if such activity occurs within the U.S.. War Crimes Act of1996, 18 U.S.C. § 2441.d. Violations of the law of war committed by persons subject to the UCMJusually will constitute violations of the UCMJ and, if so, will beprosecuted thereunder. See FM 27-10, & 507b.3. Executive branch policies require the prompt reporting and investigation ofalleged war crimes as well as appropriate disposition of resulting cases underthe UCMJ. DoD Dir. 5100.77 at C.3. & E.2.e.(2)-(3); FM 27-10, & 507.a. The U.S. Army has designated its Criminal Investigation Command as aninvestigative asset. See Dep’t of Army, Regulation 195-2, CriminalInvestigation Activities at 3-3(7) (30 Oct. 1985).b. The Army has designated Reserve Component International/OperationalLaw Teams to investigate and report on violations of the law of war. SeeDep’t of Army, Regulation 27-1, Judge Advocate Legal Service at 11-6b(1) (3 Feb. 1995).c. If involved in a prolonged armed conflict, a directive at the level of theunified combatant command or lower will likely dictate a specificinvestigative procedure.215Chapter 8War Crimes and Command Responsibility