a. EPWs pre-capture offenses v. post-capture offenses.(1)Pre-capture: GCM or federal or state court if they have jurisdiction
over U.S. soldier for same offense. Art. 82, 85, GPW.'O1(2)Post-capture: any level court-martial allowed under UCMJ.
Jurisdiction for post-capture offenses is found under Art. 2(9), UCMJ
(Art. 82, 102, GPW).(3)Court-martial or military commission (Art. 84). [BUT note effect of
Art. 102, GPW is that U.S. must use a court-martial unless policy is
changed to allow trial of a U.S. service members before a militaryb. Detainees.(1)Military commission^.^^^(2)Local National Court.''I See 10 U.S.C. • ̃802(a)(9) and 18 U.S.C. $3227.
It should be noted that at least 12 nations have made a reservation to Art. 85, GPW. The resenration in
essence would deny a POW their protected status if convicted of a war crime. North Vielnam used their
reservation under Art. 85 to threaten on several occasions the trial of American pilots as war crimnals. See
MARJORIEWHITEMAN, 10 DIGEST OF INTERNATIONALLAW 23 1 - 234 (1968); J. Bumham, Hanoi's Special
Weapons System: threatened execution of captured American pilots as war criminals, NAT.REV., Aug. 9,
1966;Dangerous decision: captured American airmen up for trial?, NEWSWEEK,July 25, 1966; Deplorable
and repulsive: North Vietnamplan toprosecute captured US. pilots as war criminals, TIME, July 29, 1966, at
12 - 13. Seegenerally, Joseph Kelly, PW's as War Criminals, MIL.REV. (Jan. 1972), at 91.
Io4See Major Timothy C. MacDonnell, Military Commissions and Courts-Martial: A Brief Discussion on the
Constitutional and Jurisdictional Distinctions Between the Two Courts, The Army Lawyer, March 2002. For
an excellent historical use of military commissions, See Major Michael 0. Lacey, Military Commissions: A
Historical Survey, The Army Lawyer, March 2002.
'05 The current War on Terrorism includes the possible use of Military Commissions as a tool in combating
terrorism (President Bush's 13 Nov 01 Military Order). There is much speculation that military commissions
will begm shortly for a limited number of terrorists, including some of the GITMO detainees. The rules and
procedures have been published (SECDEF 21 Mar 02 Military Commissions Order No.1). Additionally, on 30
April 2003, SECDEF issued eight instructions (Military Commissions Instructions 1 through 8) that published
the crimes and elements of possible offenses (Military Commission Instruction No. 2), as well as further
guidance and procedures in preparation of any military commission. For further information regarding the use
of military commissions see the above note as well as See Robinson 0. Everett and Scott L. Silliman, Forums
For Punishing Offenses Against the Law of Nations, 29 WAKE FOREST L. REV. 509 (1994). See also Major
General (Ret.) Michael J. Nardotti, Jr, Militaly Commissions, The Army Lawyer, March 2002. See also
American Bar Association, Task Force on Terrorism and the Law Report and Recommendation on Military
Commission dated January 4, 2002 (republished in The Army Lawyer, March 2002).