Law of War Handbook 2005

(Jacob Rumans) #1
c.  Army Policy. "The commander is responsible if he ordered the
commission of the crime, has actual knowledge, or should have
knowledge, through reports received by him or through other means, that
troops or other persons subject to his control are about to commit or have
committed a war crime and he fails to take the necessary and reasonable
steps to insure compliance with the law of war or to punish violators
thereof." FM 27-10, fi 501; see also TC 27-10-3 at 19-21.

V. FORUMS FOR THE PROSECUTION OF WAR CRIMES


A. International v. Domestic Crimes


  1. Built on the concept of national sovereignty, jurisdiction traditionally follows
    territoriality or nationality.

  2. In war crimes prosecutions, the veil of sovereignty is pierced.

  3. Universal international jurisdiction first appeared in Piracy cases where the
    goal was to protect trade and commerce on the high seas, an area generally
    believed to be without jurisdiction.

  4. Universal jurisdiction in war crimes first came into being in the days of
    chivalry where the wamor class asserted its right to punish knights that had
    violated the honor of the profession of arms irrespective of nationality or
    location. The principle purpose of the law of war eventually became
    humanitarianism. The international community argued that crimes against
    "God and man" transcended the notion of sovereignty.


B. Current International Jurisdictional Bases.


  1. International Criminal Court.

  2. Ad hoc tribunal under the authority of UN Charter (ICTY or ICTR) or
    separate treaty (Sierra Leone).

  3. Some states claim universal jurisdiction over all war crimes despite the lack
    of any nexus to the alleged crime.


a. Belgium passed a law in 1993 invoking universal jurisdiction over any
war crimes which did not require either complainants or accused to have a
connection to Belgium. After successfully trylng four cases &om
Rwanda, many complaints were filed with the courts. The statute was
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