Abstract
The author outlines the investigative procedures available under current United States domestic law for suspected LOAC violations. Formal and informal procedures available under both civil and military justice systems are explored and special attention given to evidence of U.S. investigative procedures, policies, and protocols that are influenced by or are functions of perceived international legal obligations.
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Notes
- 1.
The Public Commission to Examine the Maritime Incident of 31 May 2010, The Turkel Commission Report, Part 1, (Jan. 2011) available at http://turkel-committee.gov.il/content-107.html.
- 2.
Doyle 2010 (criticizing lack of international enquiry into the Gaza Flotilla incident). Amnesty International Middle East and North Africa Programme Director Malcolm Smart said, “The investigations undertaken by Israel fail to meet international standards of independence, impartiality, transparency, promptness and effectiveness. The Israeli military is investigating itself and in no way can this be adequate in obtaining the truth and ensuring justice for the victims.” Amnesty International argued, “the military investigations also preclude the possibility of examining decisions taken by civilian officials, who are also alleged to be responsible for serious violations.”—see Amnesty International 2010.
- 3.
United Nations Human Rights Council, Report of the United Nations Fact Finding Mission on the Gaza Conflict, 15 September 2009, A/HRC/12/48. Known for its lead author, Richard Goldstone, the Goldstone report proved critical of Israeli domestic responses to alleged law of armed conflict violations. The report observed, “the system put in place by Israel, and described above, to deal with allegations of serious wrongdoing by armed forces personnel does not comply with all those principles.” Id. at para 1612. The report also concluded, that the failure of Israel to open prompt, independent and impartial criminal investigations even after 6 months have elapsed constitute a violation of its obligation to genuinely investigate allegations of war crimes and other crimes, and other serious violations of international law.” Id. at para 1620.
- 4.
Kaiser 2006.
- 5.
U.S. Const., art. I, § 8, cl. 14. See also, Id. cls 10–13, 15.
- 6.
See McGrain v. Daugherty, 273 U.S. 135, 174 (1927) (stating that inquiry is a necessary and essential legislative function); Watkins v. United States, 354 U.S. 178, 187 (1957) (stating, “The power of the Congress to conduct investigations is inherent in the legislative process. That power is broad. It encompasses inquiries concerning the administration of existing law as well as proposed or possibly needed statutes…. But broad as is this power of inquiry, it is not unlimited.”).
- 7.
2 U.S.C. § 190d.
- 8.
Rules of the United States House of Representatives. Rule X, cl. 2(b)(2).
- 9.
U.S. House of Representatives, House Armed Services Comm., Oversight Plan for the 110th Congress, available at: http://armedservices.house.gov/oversight110.shtml.
- 10.
Id.
- 11.
U.S. House of Representatives, House Armed Services Comm., Oversight Plan for the 111th Congress, available at: http://armedservices.house.gov/oversight_plan.shtml.
- 12.
United States Senate, Committee on Armed Services, Inquiry into the Treatment of Detainees in U.S. Custody (November 20, 2008), available at http://documents.nytimes.com/report-by-the-senate-armed-services-committee-on-detainee-treatment. See U.S. House of Representatives, House Armed Services Comm., Oversight Plan for the 110th U.S. Congress, available at http://armedservices.hous.gov/oversight110.shtml. Brenner 2010.
- 13.
Brenner 2010, p. 4.
- 14.
Id. at 92. See also Fowler and Hill (2006) stating ideological polarization can extend to relations with the executive branch and that sophisticated political parties can use various means to claim success.
- 15.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts, 1977, 1125 U.N.T.S. 3 [hereinafter 1977 Additional Protocol I].
- 16.
Id. art. 90. Of the Protocol’s 171 States parties, 72 are States parties to the article 90 investigative regime. International Committee of the Red Cross, State Parties to the Following International Humanitarian Law and Other Related Treaties as of 6-Dec-2011, available at http://www.icrc.org/ihl.
- 17.
American Convention on Human Rights, 1144 UNTS 123, November 22, 1969. The U.S. has signed but not ratified the American Convention. See Organization of American States, Department of International Law, Multilateral Treaties, available at http://www.oas.org/juridico/english/sigs/b-32.html.
- 18.
See Center for Constitutional Rights, Inter-American Commission on Human Rights Extends Precautionary Measures on Guantanamo Detainees, available at http://ccrjustice.org/newsroom/press-releases/inter-american-commission-human-rights-extends-precautionary-measures-guant%C3%A1.
- 19.
See id.
- 20.
Inter-American Commission on Human Rights, Resolution No. 2/06, available at http://www.cidh.oas.org/resolutions/resolution2.06.htm.
- 21.
State Department Digest of U.S. Practice in International Law 935-36 (2007) available at http://www.state.gov/documents/organization/147120.pdf.
- 22.
28 U.S.C § 533(1).
- 23.
Id. at (4)(a).
- 24.
The Attorney General’s Guidelines For Domestic FBI Operations (2006), available at http://www.ignet.gov/pande/standards/prgexhibitg1.pdf.
- 25.
Id.
- 26.
18 U.S.C § 3052 (emphasis added).
- 27.
United States v. Marzani, 71 F. Supp. 615, 617 (D.D.C. 1947), aff’d, 168 F.2d 133 (D.C. Cir.), aff’d, 335 U.S. 895 (1948) (per curiam).
- 28.
Delegation of the Attorney General’s Authority to Investigate Credit Card Fraud, 7 U.S. Op. Off. Legal Counsel 172 (1983).
- 29.
Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities, 13 U.S. Op. Off. Legal Counsel 163 (1989) [hereinafter Authority to Override International Law].
- 30.
See e.g., 18 U.S.C § 844(i) (enacting penalties for destruction of property used in foreign commerce); 18 U.S.C § 1116(c) (implementing Convention on the Prevention and Punishment of Crimes Against Internationally Protected Persons); 18 U.S.C § 1472(l) (enacting penalties for carrying weapons or explosives aboard aircraft).
- 31.
See Authority to Override International Law, supra n. 29.
- 32.
See FBI Authority to Investigate Violations of Subtitle E of Title 26 or 18 U.S.C. Sections 921–930, 20 U.S. Op. Off. Legal Counsel 242 (1996); Authority to Override International Law, supra note 29.
- 33.
28 C.F.R. § 0.85(a) (1995) (emphasis added).
- 34.
Dep’t of Defense Memorandum of Understanding 938, Memorandum of Understanding between the Departments of Justice and Defense Relating to the Investigation and Prosecution of Certain Crimes, Aug. 1984, available at http://www.justice.gov/usao/eousa/foia_reading_room/usam/title9/crm00938.htm.
- 35.
Id. at para (2).
- 36.
Id. at para (3)(b).
- 37.
Id.
- 38.
Id. See also 28 C.F.R § 0.85.
- 39.
10 U.S.C. § 802(a)(10) as amended by The National Defense Authorization Act of 2007. The Act defines a “contingency operation” as a military operation designated by the Secretary of Defense as one in which participant are or may become involved in military actions, operations, or hostilities or that results in an order preventing active duty service members from separating from service. 10 U.S.C. § 101(a)(13).
- 40.
Department of Defense, Office of General Counsel, Directive-Type Memorandum 09-015, Policy and Procedures Applicable to DoD and United States Coast Guard Civilian Personnel Subject to Uniform Code of Military Justice Jurisdiction in Time of Declared War or Contingency Operation. (February 16, 2010 with change 1 dated Aug. 19 2010).
- 41.
United States v. Ali, Docket No. Army 20080559 (June 22, 2008). In March 2010, the Army TJAG directed the Army Court of Criminal Appeal to determine whether the court-martial had subject matter and personal jurisdiction in the case. See The United States Army Judge Advocate General’s School, Criminal Law Deskbook, D-15 (2011) [hereinafter Army Criminal Law Deskbook].
- 42.
18 U.S.C. § 3261 (2000): “Whoever engages in conduct outside the United States that would constitute an offense punishable by imprisonment for more than 1 year if the conduct had been engaged in within the special maritime and territorial jurisdiction of the United States (1) while employed by or accompanying the Armed Forces outside the United States; or (2) while a member of the Armed Forces subject to chapter 47 of title 10 (the Uniform Code of Military Justice), shall be punished as provided for that offense.
- 43.
Department of Justice 2008.
- 44.
Id.
- 45.
Id.
- 46.
Indictment, United States v. Nazario, CR07-00127-SGL, (September 4, 2007), available at http://www.haguejusticeportal.net/Docs/NLP/US/Nazario_Indictment_4-9-2007.pdf.
- 47.
See generally The Hague Justice Portal, DomCLIC Project, United States of America v. José Luis Nazario Jr., available at http://www.haguejusticeportal.net/eCache/DEF/9/707.html.
- 48.
Elsworth 2008.
- 49.
Unreported (W.D. Ky. 2008) No. 5:06CR-19-R 2008 W.L. 4000868.
- 50.
CBS News 2009 .
- 51.
Id.
- 52.
Interestingly, Green volunteered to reenlist in the military for the option to be prosecuted under the UCMJ. The military declined the option. Testimony had already developed in military court, because many of the co-conspirators, who were serving on active duty when the allegations arose and were already tried and convicted by court-martial. The UCMJ provides that convicted persons have a chance for parole after 10 years, while this option is not always available under federal law. Some military law scholars suggest that prosecuting Green in federal district court “undoubtedly reflects political pressure to ensure the most severe punishment for the crime's alleged ringleader.” Zimmerman Miller 2010, at n. 118 (citing Professor Gary Solis, a former military prosecutor and law professor at the United States Military Academy at West Point). See also Associated Press 2007.
- 53.
18 U.S.C. § 7(9) (as amended by the § 804 of the USA P.A.T.R.I.O.T. Act, P.L. 107-56, title VIII, October 26, 2001, 115 Stat. 377) (excluding persons covered by the Military Extraterritorial Jurisdiction Act, 18 U.S.C. § 3261).
- 54.
Id.
- 55.
18 U.S.C. § 7; 18 U.S.C. §§ 3261-3267 (2000 & Supp. IV 2004). Indictment at 1, United States v. Passaro, No. 5:04-CR-211-1 (E.D.N.C. 2004).
- 56.
Indictment at 1–4, United States v. Passaro (2004).
- 57.
Id. at 1–4.
- 58.
Locke 2010.
- 59.
- 60.
Giardino (2007), p. 725.
- 61.
Department of Defense Directive 2311.01E, DoD Law of War Program, para 6.3, (9th May 2006) [hereinafter DoD Law of War Program].
- 62.
Id. at para 6.3.
- 63.
Manual of Courts-Martial, United States, R.C.M. 301(b) [hereinafter MCM].
- 64.
DoD Law of War Program, supra note 61,
- 65.
Id. at para 6.3.
- 66.
Id. at para 6.4.
- 67.
Id. at para 6.6.
- 68.
Id. at para 6.7.
- 69.
Id. at para 6.4.
- 70.
Jackson 2010, p. 98.
- 71.
Id.
- 72.
Id.
- 73.
Chairman of the Joint Chiefs of Staff, Instruction 5810.01D, Implementation of the DoD Law of War Program, para 6.f.(4)(a) [hereinafter Implementation of Law of War Program].
- 74.
Department of the Army, Regulation 190-45, Law Enforcement Reporting (20th March 2007) para 8-2b. [hereinafter Army Law Enforcement Reporting].
- 75.
Id.
- 76.
See Department of the Army Field Manual 3-19.13, Army Law Enforcement Investigations, (January 10, 2005) at para 18-7, [hereinafter Army Law Enforcement Investigations]; Army Law Enforcement Reporting, supra note 74, at para 8-2(b).
- 77.
DoD Law of War Program, supra note 61, at para 4.4.
- 78.
Id. at para 3.2.
- 79.
Department of the Army, Field Manual 27-10, Law of Land Warfare, (July 18, 1956) at para 499 [hereinafter Law of Land Warfare].
- 80.
See 10 U.S.C. § 818.
- 81.
10 U.S.C. § 818.
- 82.
For example, one might imagine circumstances in which a U.S. P.O.W. camp commander failed to post copies of the 1949 Third Geneva Convention in the language of the prisoners. Although a technical violation of Article 41 of the Third Convention, it is highly unlikely such a breach would be regarded as a war crime in the U.S. military justice system.
- 83.
Administrative measures such as suspension from consideration for awards, schooling, and promotion frequently accompany court-martial charges. See e.g. Department of the Army, Regulation 635-200, Active Duty Enlisted Separations (April 25, 2010), at para 1-8.
- 84.
See e.g. Department of the Army, Army Regulation 15-6, Procedures for Investigating Officers and Boards of Officers (October 2, 2006) at para 2-3b, [hereinafter Procedures for Investigating Officers].
- 85.
Id. at para 1-5d.
- 86.
Department of Defense, Instruction 5505.03, Initiation of Investigations by Defense Criminal Investigative Organizations, para 4.b. (March 24, 2011).
- 87.
MCM, supra n. 63, at R.C.M. 303 (2008).
- 88.
Id.
- 89.
Department of Defense, Instruction 5505.3, Initiation of Investigations by Military Criminal Investigative Organizations (June 21, 2002). The Instruction identifies three MCIOs: The U.S. Army Criminal Investigation Command; the Naval Criminal Investigative Service; and the Air Force Office of Special Investigations. Id. at para 3.2.
- 90.
Id. at para 6.1.
- 91.
See Army Law Enforcement Investigations, supra note 76, at para 18-7; Dep’t of the Army, Army Regulation 190-45, Army Law Enforcement Reporting, supra note 74, para 8-2(b) (requiring reports of “serious incidents to Headquarters, Department of the Army”).
- 92.
Army Law Enforcement Investigations, supra note 76, at paras 18-7, 18-8.
- 93.
Id. at para 18-10.
- 94.
Id. at para 18-18. The manual discusses transfer to international authorities such as the United Nations in cases of suspected genocide.
- 95.
Department of the Army, Army Regulation 190-30, Military Police Investigations, (1st November 1995) para 4-1 [hereinafter Military Police Investigations].
- 96.
See id. at para 4-3.
- 97.
For an example of offenses investigated by Military Police rather than MCIOs see id. at Table 4-1.
- 98.
MCM, supra note 63, R.C.M. 303.
- 99.
Id.; DoD Law of War Program, supra n. 61.
- 100.
For a delineation of offenses investigated by Military Police rather than MCIOs see Military Police Investigations, supra n. 95, at Table 4-1.
- 101.
Implementation of Law of War Program, supra note 73, para 6.f.(4)(e)(1)—(3).
- 102.
See Procedures for Investigating Officers, supra note 84, para 5-6.a.
- 103.
Department of Defense, Instruction 5505.03, Initiation of Investigations by Defense Criminal Investigative Organizations (March 24, 2011), paras 4.a. & Enclosure 2, para 3.a.
- 104.
Id. at Enclosure 2, para 1.a.
- 105.
See 10 U.S.C. § 37(a).
- 106.
See Army Criminal Law Deskbook, supra note 41, at C-1 (citing 2 Francis A. Gilligan & Fredric I. Lederer, Court-Martial Procedure, §18-28.00 (2nd ed. 1999).
- 107.
SeeUnited States v. Biagase, 50 M.J. 143(1999).
- 108.
United States v. Hawthorne, 22 C.M.R. 83, 87 (C.M.A. 1956).
- 109.
See Army Criminal Law Deskbook, supra n. 41, at C-26.
- 110.
NMCCA 200800299 (March 17, 2009).
- 111.
Id. at 19-21.
- 112.
10 U.S.C. § 836(b).
- 113.
See Department of the Army, Army Regulation 27-10, Military Justice (November 16, 2005).
- 114.
10 U.S.C. § 832.
- 115.
MCM, supra note 63, at R.C.M. 405(a), discussion.
- 116.
Id. at 405(d)(1) and discussion.
- 117.
10 U.S.C. § 832(b).
- 118.
MCM, supra n. 63, at R.C.M. 601(b).
- 119.
Id. at R.C.M. 601(c).
- 120.
10 U.S.C. § 935.
- 121.
MCM, supra n. 63, at R.C.M. 703(3)(2)(C).
- 122.
See e.g. Procedures for Investigating Officers, supra note 84; Dep’t of the Navy, JAGINST 5800.7C, The Manual of the Judge Advocate General (June20 2007) with change 2 (September 16, 2008). The U.S. Air Force has no general regulation or instruction governing command-directed administrative investigations. The Air Force relies on commanders’ inherent authority to conduct investigations. See The Judge Advocate General’s School, Administrative and Civil Law Dep’t, (2010) Administrative Law Deskbook Volume 1, p. 4.
- 123.
See id. at para 1-8.
- 124.
Procedures for Investigating Officers, supra note 84, at para 2-1a(3).
- 125.
See id. at para 1-9a.
- 126.
18 U.S.C. § 1385, Posse Comitatus Act. Exceptions and exclusions are available in emergency situations.
- 127.
Executive Order 12333, United States Intelligence Activities, 46 Fed. Reg. 59941 (December 4, 1981).
- 128.
See e.g. Procedures for Investigating Officers, supra note 84, at para 1-5.b.(5). (noting procedural requirements for investigating members of the Army civilian senior executive service).
- 129.
Law of Land Warfare, supra note 79, at para 507 (stating, “The United States normally punishes war crimes as such only if they are committed by enemy nations or persons serving the interests of the enemy State.”).
- 130.
Id. (stating, “Violations of the law of war committed by persons subject to the military law of the United States will usually constitute violations of the Uniform Code of Military Justice and, if so, will be prosecuted under that Code.”).
- 131.
Annual Report Submitted to the Committees on Armed Services United States Senate and United States House of Representatives and to the Secretary of Defense, Secretary of Homeland Security, and Secretaries of the Army, Navy, and Air Force Pursuant to the Uniform Code of Military Justice for the Period October 1, 2009 to September 30, 2010, available at http://www.armfor.uscourts.gov/newcaaf/ann_reports.htm.
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Watts, S. (2012). Domestic Investigation of Suspected Law of Armed Conflict Violations: United States Procedures, Policies, and Practices. In: Schmitt, M., Arimatsu, L. (eds) Yearbook of International Humanitarian Law 2011 - Volume 14. Yearbook of International Humanitarian Law, vol 14. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-855-2_3
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