During a beautiful Texas afternoon, attendees of the 2021 Summit gathered for an engaging and highly interactive session around a military law hypothetical. The session was the confluence of the “amazing relationship between the AJEI and the National Judicial College,” said the Honorable Albert Diaz, who introduced the panel. The Honorable Benes Z. Aldana, President of the National Judicial College, was the moderator. Professor Richard Rosen, Melissa Mills and James Durant, III, who spoke in their respective personal capacities, discussed the hypothetical.
The Hypothetical
The United States is involved in a major armed conflict in response to a North Korean attack on South Korea. The commander of a U.S. combat unit receives an anonymous tip that several of the members of the unit murdered a South Korean civilian. The commander directs military criminal investigators to pursue the matter, and their investigation leads to the conclusion that Staff Sergeant Robert Jones and Sergeant Peter Falk did in fact kill a civilian prior to stealing some valuable items from his home. Jones, who is still in the unit, is questioned by investigators and confesses to the misconduct in a video-taped session. Falk is no longer in the Army because his term of service ended before the investigation commenced with an honorable discharge. He is living in Maryland. In an especially odd twist, Jones tells investigators that when they came upon the victim he was actually being severely beaten by a North Korean Army soldier who they captured. Jones tells investigators he and Falk transported the captive to a prisoner of war center after they looted the victim’s home. Investigators find the prisoner of war (POW) in a U.S. camp and when he is questioned, he admits to abusing the South Korean civilian prior to his capture.
The Questions
What are the criminal prosecutorial options for: 1. Jones 2. Falk 3. The North Korean POW?
The Discussion
Rosen, a professor at Texas Tech University Law School, began with “a very brief overview, laying the landscape” with three observations. First, he noted that the United States Department of Defense’s policy requires reporting and investigating all possible law violations by United States Armed Forces service members. Second, he cautioned that although the facts in the hypothetical are fairly clear, war is war. Often the combat environment is subject to the “fog of war,” meaning contested terrain as well as time and distance limitations that degrade investigators’ ability to gather and document facts. Third, he called attention to constitutional governance, especially Article 1, Section 8 of the Constitution, which includes the Necessary and Proper Clause. Congress may establish a court to adjudicate and punish war crimes committed by United States forces and enemy combatants. Court-martial jurisdiction applies worldwide. Congress further has the power to define and punish all offenses against the law of nations and to make rules for the government and regulation of land and naval forces. That jurisdiction, Rosen emphasized, terminates when a service member completely severs their relationship with the armed forces. He pointed out that although four members of the armed forces have been convicted for capital offenses and sentenced to death, none have been executed since 1961.
The panelists took turns opining on the fate of Staff Sergeant Robert Jones, Sergeant Peter Falk, and the North Korean POW. Audience members raised more issues.
Staff Sergeant Robert Jones is subject to the Uniform Code of Military Justice found in Title 10, Chapter 47 of the United States Code.
According to Rosen, Jones would be subject to the Uniform Code of Military Justice (UCMJ) and trial by court martial. Jones may also be subject to the jurisdiction of South Korea, which has primary jurisdiction. Jones’s crimes include murder, robbery, plundering, and pillaging—serious offenses under Article 99 of the Uniform Code of Military Justice. Article 99 proscribes misbehavior toward the enemy and exists to maintain military order and discipline in the face of combat. However, Rosen noted that Jones’s crime may not constitute war crimes under the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (more commonly referred to as the Fourth Geneva Convention). War crimes or not, Rosen continued, Jones may be charged with the crimes he committed in violation of the UCMJ. Importantly, the United States has a status of forces agreement with the Republic of Korea under which Korea has primary jurisdiction over Jones’s offenses and could elect to exercise criminal jurisdiction over him.
Sergeant Peter Falk is no longer subject the Uniform Code of Miliary Justice because he is no longer a member of the armed forces
Falk is now a civilian and thus subject to the general laws of Maryland where he currently resides. “Sergeant Falk is now Mr. Falk,” explained Melissa Mills. Falk is subject to civilian laws for the crimes of conspiracy, murder, and robbery under the United States Code. To reach Falk, the State must have a jurisdictional hook. But these are typically crimes that occur in United States military bases or property, which are usually outside a state’s jurisdiction, she continued. In times past, former soldiers and others who returned after committing atrocities had been able to evade prosecution. But in 2000, Congress closed that loophole. The Military Extraterritorial Jurisdiction Act of 2000 amended the United States Code to impose criminal penalties “upon an individual who while employed by or accompanying the armed forces outside the United States, or while a member of the armed forces outside the United States, engages in conduct that would constitute an offense punishable by imprisonment for more than one year if such conduct had been engaged in within the maritime and territorial jurisdiction of the United States.” According to Mills, Falk can be punished under this Act. Falk would be indicted by a grand jury, presumably under this statute, for murder, conspiracy to murder, robbery, and potentially other crimes the facts can sustain.
The North Korean POW is not subject to the Code because his abuse of a civilian occurred before his capture but may be tried by a military commission.
Panelist James Durant III noted that the POW is potentially subject to military jurisdiction in two ways. First, a POW falls directly within persons enumerated by Article 2 as being subject to the UCMJ. As such, the POW is subject to all the prohibitions established by the Code for members of the armed forces. A prisoner of war is subject to the laws of the capturing force. In this case, however, the POW abused the South Korean civilian prior to his capture by Falk and Jones. Therefore, he is not subject to the punitive articles in the UCMJ.
Second, the POW could be prosecuted under general court-martial jurisdiction if he has committed war crimes as a prisoner of war. Article 18 of the UCMJ provides that “general courts-martial also have jurisdiction to try any person who by the law of war is subject to trial by a military tribunal and may adjudge any punishment permitted by the law of war.” To invoke this provision, there must be violations of the laws of war. However, the United States has not used a court martial to try prisoners of war. Instead, the United States has used military commissions. The commissions apply the same procedural safeguards utilized by a court martial. Congress authorized military commissions, and they are constitutionally valid as a court martial. The POW may be tried by a commission established for this purpose.
The panel concluded with audience discussion on various topics.
President Aldana explained that the session was designed to allow substantial audience participation. And participate the audience did. Members discussed the need for the United States to subject herself to the jurisdiction of the International Criminal Court, the application of universal jurisdiction over those who commit war crimes, the right of victims to counsel, whether the President may use the pardon power for those charged and convicted of war crimes, and the right of the accused to counsel. Ultimately, the panel proved a fascinating and insightful experience for all involved.