Strengthening American War Crimes Accountability

The United States needs to improve accountability for its service members’ war crimes. President Donald J. Trump dangerously intensified a growing national misunderstanding regarding the critical nexus between compliance with the laws of war and the health and efficacy of the U.S. military. This Article pushes back against such confusion by demonstrating why compliance with the laws of war, and accountability for violations of these laws, together constitute vital duties owed to our women and men in uniform. This Article reveals that part of the fog of war surrounding criminal accountability for American war crimes is due to structural defects in American military law.

It analyzes such defects, including the military’s failure to prosecute war crimes as war crimes. It carefully highlights the need for symmetry between the disparate American approaches to its enemies’ war crimes and its own service members’ battlefield offenses. To help close the current war crimes accountability deficit, we propose a comprehensive statutory remedial scheme that includes: the enumeration of specific war crimes for military personnel analogous to those applicable to unlawful enemy belligerents as found in the Military Commissions Act; the formal addition of command responsibility liability doctrine to military criminal law; the provision of criminal defenses relevant to war crimes allegations; and the extension of court-martial jurisdiction over all enemy belligerents using the same enumerated war crimes proposed for U.S. service members.