Animating the U.S. War Crimes Act

All war crimes are challenging to prosecute. Typical reasons include the technicality of some constitutive elements, the difficulties of amassing sufficient evidence, the vagaries of unreliable or unavailable witnesses, and the often-impenetrable khaki wall of silence. Adding to these challenges, the United States has erected a number of idiosyncratic structural barriers in the way in which it has incorporated the prohibitions against war crimes into its domestic legal frameworks, both military and civilian. This article addresses problems with the U.S. federal war crimes statute and proposes reforms that would (1) better conform to U.S. obligations under the Geneva Conventions and enable the United States to prosecute war crimes committed anywhere in the world regardless of the nationality of the victim or perpetrator, (2) withdraw and repudiate controversial Office of Legal Counsel memoranda advancing a crabbed interpretation of the concept of “protected persons” when it comes to individuals in the custody of a High Contracting Party to the Conventions, (3) restructure the statute to obviate the need to undertake a complicated conflict classification exercise, (4) enact a superior responsibility statute that would apply to war crimes and other international crimes within U.S. jurisdiction, and (5) re-penalize the war crime of “outrages upon personal dignity, in particular humiliating and degrading treatment,” which is prohibited by Common Article 3 but was decriminalized upon the passage of the Military Commissions Act of 2006.