International Criminal Laws and Military Personnel

While those serving in the military sacrifice in many areas of their lives, it’s also undeniable that their service includes the very real possibility of being deployed to combat zones around the world. This can put them in dangerous environments and, especially for those in combat or combat support positions, face-to-face with hostile groups that would use violence against them. Even with the best training and equipment, the fog of war often confronts service members with difficult, life-altering decisions.

Fortunately, service members receive training in the Laws of Armed Conflict (LOAC) to guide them in such situations. The U.S. operates under LOAC whenever it conducts military operations. It’s based on a set of international laws derived from treaties such as the Geneva and Hague Conventions as well as the historical customs and practices of nations, a type of international common law referred to as customary international law. While there are many different laws under LOAC, including those pertaining to the handling of detainees, it has four basic principles that guide those involved in combat operations:

1. Distinction: the obligation to distinguish between civilian and military targets and to target only the latter
2. Proportionality: the obligation to avoid causing excessive damage to civilian lives and property when engaging legitimate military targets
3. Military Necessity: the obligation to only use military force when necessary to fulfill a legitimate military objective
4. Prevention of Unnecessary Suffering: the obligation to avoid using weapons or tactics that cause unnecessary suffering

How are International Law Violations Prosecuted?

Service members accused of committing war crimes (violations of the LOAC) or other crimes under international law, normally will face the prospect of prosecution by the military under the Uniform Code of Military Justice (UCMJ). This would take place through a court-martial. However, while less likely, there are also other venues in which a service member could face trial, including:

• Foreign courts in the territory where the incident took place
• The International Criminal Court (ICC)

It's unlikely that a service member would face international criminal law charges in a foreign court as the military almost always will seek to try its own personnel within the court-martial system. Facing such charges in a foreign court would probably only happen if the service member is detained by a foreign government that refuses to hand the prisoner over to the U.S. military.

If a service member is not tried under the UCMJ for international law violations, it’s more likely that, depending on where the incident took place, he or she could face the prospect of charges brought by the ICC, especially if the offense is a serious one.

However, the ICC's jurisdiction is limited to:

• Territories of states that are parties to the Rome Statute
• Citizens of states that are parties to the Rome Statute

In addition, under the principle of complementarity, the ICC will only exercise jurisdiction where national legal systems fail to do so. The ICC, therefore, first defers to national courts for prosecutions of international criminal laws before it exercises jurisdiction.

The U.S. is currently not a party to the Rome Statute and has passed laws limiting support for the ICC and limiting military assistance to countries that are a party to the ICC. However, the U.S. also has a more recent history of cooperating with the ICC to help bring certain war criminals to justice.

That being said, because the U.S. is not a party to the Rome Statute, service members would only face the criminal jurisdiction of the ICC if they were apprehended by non-U.S. elements in a country that was a party to the Rome Statute.

What Does This Mean for You?

Even service members well-grounded in LOAC and international law and with a strong moral compass can find themselves facing ethically (and legally) tricky situations during combat, which often demands instant decisions with little time for reflection or legal research. Or they could also face the prospect of opposition forces broadcasting misleading information suggesting that they or their unit engaged in war crimes. In either case, as long as you remain under the control of the U.S. military, it’s safe for you to assume that, if you are to face any charges relating to violations of international criminal laws, you would only be tried in the court-martial system, with all of its due process protections.

That being said, you should also understand the risks of facing trial in a foreign court or the ICC, particularly if you are captured or somehow separated from the control of the U.S. military. If you do find yourself in this situation, remember that you have the right to demand access to the local U.S. Embassy or Consulate which can also assist you in locating a local attorney.

If you have additional questions about international criminal law, you should speak with a military law attorney who can advise you of all of your rights and protections.