1. A. Cassese, International Criminal Law (2003), at 297 (emphasis in original). The US concern over this jurisdiction drives its ICC policy. As the US Department of State Legal Adviser recently stated,

2. US policy and practice is to maximize US jurisdiction, not refuse foreign jurisdiction. Every year hundreds of US service members are tried in foreign criminal courts. See Annual Report of the Code Committee on Military Justice (2006), at 13–14, maintained on the website of the US Court of Appeals for the Armed Forces, available at http://www.armfor.uscourts.gov/annual/FY06AnnualReport.pdf.

3. Yapp v. Reno, 26 F.3d 1562, 1565 (11th Cir. 1994); Extradition of Charles Philip Smith, 82 F.3d 964, 965 (10th Cir. 1996).

4. Statutory exceptions exist. There are approximately 30 categories of criminal offences under US federal law with extraterritorial application, set forth in Title 18, United States Code (USC). The Military Extraterritorial Jurisdiction Act, 18 USC § 3261 et seq., does not (despite its name) apply to active-duty service members, but to persons employed by or accompanying the armed forces outside the United States. It does, however, apply to service members no longer subject to the UCMJ by reason of discharge from service, who committed crimes abroad while serving on active military duty.

5. Solorio v. US, 483 US 435 (1987). The state practice of punishing one's own soldiers for violations of the laws of war was developed in the 19th and early 20th centuries, with a view towards maintaining good order and discipline. M. Bothe, ‘War Crimes’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), Vol. I, at 382, n. 3.

6. The existence of a status of forces agreement provision concerning foreign criminal jurisdiction serves to clarify the relative right to proceed between sovereign states in any given circumstance, and does not of itself grant extraterritorial criminal jurisdiction to the United States over its service members. Thus, the US policy of maximizing the jurisdiction over its service members for crimes committed abroad is consistent with a constitutional ‘exception’ to its adherence to the common law territorial principle of criminal law.

7. The term ‘war crimes’ was not used in the four Geneva Conventions, but rather ‘grave breaches’ to denote the most serious acts perpetrated in violation of the Conventions. See, e.g., Art. 147 of the Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), 75 UNTS 287. However, Art. 85(5) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (1977) (Protocol I), UN General Assembly, A/32/144, 15 August 1977, characterizes these grave breaches as ‘war crimes’, as does Art. 8 of the Rome Statute. See also Bothe, supra note 5, at 388:

8. R. Everett, ‘American Servicemembers and the ICC’, in S. Sewall and C. Kaysen (eds.), The United States and the International Criminal Court (2000), 137 at 149, note 24 (emphasis added).

9. Rome Statute, Art. 17(1). This provision is applicable even though the United States is not a party to the Rome Statute, since the ICC has jurisdiction over crimes committed within the territory of a state party. See W. Schabas, An Introduction to the International Criminal Court (2004), at 74–5.

10. As Chief Judge Everett explains,

11. Although the Rome Statute's jurisdiction also extends to genocide and crimes against humanity, this article's analysis is limited to war crimes.

12. US Constitution, Art. I, § 8.

13. US Constitution, Art. II, § 2.

14. 10 USC § 801 et seq.

15. Manual for Courts-Martial, United States (2005 Edition) (hereinafter MCM).

16. MCM, Part I, Preamble, para. 3.

17. US Constitution, Art. I, § 8, Clause 14; Solorio, supra note 5, at 441.

18. 10 USC §§ 877–934.

19. US Constitution, Art. I, § 8, Clause 10.

20. UCMJ, Art. 18. Courts-martial jurisdiction under the law of war is also implied in Art. 21, UCMJ, which states that provisions granting jurisdiction to courts-martial do not deprive military tribunals of concurrent jurisdiction for violations of the law of war. Note the distinction in terminology under US military jurisprudence between a military tribunal (or commission) and a court-martial.

21. See, e.g., In re Quirin, 317 US 1 (1942); In re Yamashita, 327 US 1 (1946); Madsen v. Kinsella, 343 US 341 (1952).

22. Chief Judge Everett writes that

23. It should be noted here that neither the UCMJ nor the MCM define ‘war crimes’ per se. Rule for Court-Martial 201(f)(1)(B)(i)(a), in the MCM, generally refers to a ‘crime or offence against the law of war’. The Discussion accompanying Rule for Court-Martial 201(f)(1)(B)(ii), written in the context of punishment permitted by the law of war, refers by example to Art. 68 of the Convention relative to the Protection of Civilian Persons in Time of War (1949), 75 UNTS 287. The US Army Field Manual 27–10, The Law of Land Warfare (18 July 1956), para. 499, defines a war crime as ‘the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.’ See also the definition in the War Crimes Act, 18 USC § 2441, infra note 55.

24. MCM, Rule for Court-Martial 307(c)(2), Discussion. ‘Ordinarily persons subject to the code should be charged with a specific violation of the code rather than a violation of the law of war’. See also US Army Field Manual 27–10, The Law of Land Warfare (18 July 1956), para. 507(b), which provides that

25. The charges brought against Lieutenant Calley can be found at the University of Missouri-Kansas City website at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_ctchar.htm. With reference to the Calley case, one US Army lawyer has found that ‘[i]n subsequent conflicts, service members have been prosecuted for a variety of offenses; however, American service members have not been charged with . . . war crimes.’ M. White, ‘Charging War Crimes: A Primer for the Practitioner’, (2006) February The Army Lawyer, Department of the Army Pamphlet 27-50-393.

26. For example, the offence of kidnapping is specified under Art. 134. See MCM, IV-113, para. 92.

27. See UCMJ Art. 56; 10 USC § 856; MCM, Rule for Court-Martial 103(19); US v. Avarette, 41 CMR 363 (C.M.A. 1970); US v. Shell, 23 CMR 110 (C.M.A. 1957); US v. Bancroft, 11 CMR 5 (C.M.A. 1953); US v. Gann, 11 CMR 12 (C.M.A. 1953); US v. Anderson, 38 CMR 582, 584 (A.B.R. 1967), aff'd, 38 CMR 386 (C.M.A. 1968).

28. UCMJ Art. 101; 10 USC § 901

29. UCMJ Art. 105; 10 USC § 905

30. UCMJ Art. 106; 10 USC § 906.

31. UCMJ Art. 85; 10 USC § 885.

32. UCMJ Art. 90; 10 USC § 890.

33. UCMJ Art. 113; 10 USC § 913.

34. UCMJ Art. 118; 10 USC § 918.

35. UCMJ Art. 120; 10 USC § 920.

36. UCMJ Art. 112a; 10 USC § 912a.

37. UCMJ Art. 115; 10 USC § 915.

38. UCMJ Art. 134; 10 USC § 934.

39. Misbehaviour before the enemy, UCMJ Art. 99; 10 USC § 899; subordinate compelling surrender, UCMJ Art. 100; 10 USC § 900; and forcing a safeguard, UCMJ Art. 102; 10 USC § 902.

40. MCM, Rule for Court-Martial 1004(c).

41. MCM, Rule for Court-Martial 1004(c)(6).

42. Rome Statute (Elements of Crimes), Art. 8(2)(a)(i); US v. Calley, 48 CMR 19 (1973). See the elements of the offences for which Lieutenant Calley was tried in Instructions from the military judge to the court members in US v. First Lieutenant William L. Calley, Jr., March 1971, available at http://www.law.umkc.edu/faculty/projects/ftrials/mylai/instructions.html.

43. UCMJ Art. 93; 10 USC § 893. Proof of the offence of maltreatment of a subordinate requires that (i) the victim was subject to the orders of the accused; and (ii) the accused was cruel toward, oppressed, or maltreated the victim in the alleged manner. ‘Subject to the orders of’ includes persons under the direct or immediate command of the accused and all persons who by reason of some duty are required to obey the lawful orders of the accused, even if those persons are not in the accused's direct chain of command. US Department of the Army Pamphlet 27–9, Military Judges’ Benchbook (15 September 2002), para. 3–17-1. The other charges have included conspiracy, UCMJ Art. 81, 10 USC § 881; dereliction of duty, UCMJ Art. 92, 10 USC § 892; making a false official statement, UCMJ Art. 107, 10 USC § 907; assault, UCMJ Art. 128, 10 USC § 928; and indecent assault, UCMJ Art. 134, 10 USC § 934. None of these offences require as an element of proof that the conduct took place in the context of and was associated with an international armed conflict.

44. Had they been, the charges would have so indicated. See MCM, Rule for Court-Martial 307(c)(2), Discussion, supra note 24: ‘In the case of a person subject to trial by general court-martial for violation of the law of war, the charge should be: Violation of the Law of War’.

45. Under the Rome Statute, the offenders in the Abu Ghraib cases might have been charged with the ‘war crime of outrages upon personal dignity’, which requires as elements of proof that (i) the perpetrator humiliated, degraded or otherwise violated the dignity of one or more persons; (ii) the severity of the humiliation, degradation, or other violation was of such degree as to be generally recognized as an outrage upon personal dignity; (iii) the conduct took place in the context of and was associated with an international armed conflict; and (iv) the perpetrator was aware of the factual circumstances that established the existence of an armed conflict. Rome Statute (Elements of Crimes), Art. 8(2)(b)(xxi).

46. UCMJ Art. 133; 10 USC § 933.

47. UCMJ Art. 134; 10 USC § 934.

48. Parker v. Levy, 417 US 733 (1974), 743.

49. Ibid. at 746–7, quoting Martin v. Mott, 12 Wheat. 19 (1827), 35.

50. Ibid., quoting Martin v. Mott, at 35–6.

51. Cassese, supra note 1, at 139–157.

52. Parker v. Levy, supra note 48, at 740–2.

53. Ibid. See also US v. Rogers, 54 MJ 244 (2000); US v. Boyett, 42 MJ 150 (1995).

54. Significantly, the concept of the Elements of Crimes in the Rome Statute originated with the United States. Schabas, supra note 9, at 35–6.

55. 18 USC § 2441. The Act was amended by the Military Commissions Act of 2006 and may be the subject of additional amendments in the 110th Congress, including the Restoring the Constitution Act of 2007. The original Act provided as follows.

The 2006 amendment strikes paragraph (c)(3) above; replaces it with ‘which constitutes a grave breach of common Article 3 (as defined in subsection (d)) and in the context of and in association with an international armed conflict not of an international character; or’; and enumerates and defines grave breaches of Common Article 3, including: torture, cruel and inhuman treatment, performing biological experiments, murder, mutilation or maiming, intentionally causing serious bodily injury, rape, sexual assault or abuse, and taking hostages. The 2006 amendments to the Act do not fundamentally change their applicability to US service members. If at all, the amendments would make prosecution of US service members less likely since enumerating the offences arguably limits the subject-matter jurisdiction of US civilian courts, thereby decreasing the number of crimes that could be prosecuted.

56. Everett, supra note 8, at 144. See also M. Zaid, ‘Will or Should the United States Ever Prosecute War Criminals?: A Need for Greater Expansion in the Areas of Both Criminal and Civil Liability’, (2000) 35 New England Law Review 448.

57. supra note 55, 18 USC § 2441(b).

58. supra note 55, 18 USC § 2441(c).

59. UCMJ Art. 134; 10 USC § 934. Clause 3 offences involve non-capital crimes or offences which violate federal law including law made applicable through the Federal Assimilative Crimes Act, 18 USC § 13. Even if this avenue were possible, US Army Major Martin White has concluded that a ‘decision to charge a service member with violations of the law of war by assimilating federal law is rife with political repercussions’. Likewise, he concludes rather candidly that a decision to charge a service member with a violation of international law ‘effectively treating him like a war criminal . . . would be an admission that an American service member violated international law’ and thus is unlikely to occur. White, supra note 25.

60. supra note 55, 18 USC § 2441(a). Chief Judge Everett raises the potential that the authorization for capital punishment might be severable where the death penalty is not sought, thus allowing prosecution as a non-capital offence under Art. 134. Everett, supra note 8, at 144. The last US service member to be executed for UCMJ offences was Army Private John A. Bennett, who was hanged on 13 April 1961 following his conviction in 1955 for the rape and attempted murder of an eleven-year-old girl in Austria. D. Velloney, ‘Balancing the Scales of Justice: Expanding Access to Mitigation Specialists in Military Death Penalty Cases’, (2001) 170 Military Law Review 1, at 12.

61. See Rome Statute (Elements of Crimes), Art. 8(2).

62. Ibid., Art. 8(2)(a)(vii).

63. Ibid., Art. 8(2)(b)(ii).

64. Ibid., Art. 8(2)(b)(xxvi).

65. Everett, supra note 8, at 137.

66. See Rome Statute, Art. 12. Art. 18 of the Rome Statute sets out a procedure under which the Prosecutor, having commenced an investigation upon a state party referral or proprio motu, is required to notify states parties and other states which may normally exercise jurisdiction in a particular case, and may defer to national investigations.

67. Schabas, supra note 9, at 88. See also Prosecutor v. Bagaragaza, Decision on Rule 11 bis Appeal, Case No. ICTR-05–86-AR11 bis, App.Ch., 30 August 2006, in which the Appeals Chamber was confronted with a Prosecution request to refer a case to Norway where the charged crime of genocide is not explicitly proscribed. Norway submitted that its provisions against homicide and bodily harm would cover the underlying acts alleged in the indictment against Bagaragaza, but the Appeals Chamber held that it could not sanction referral of a case to a jurisdiction for trial where the conduct could not be charged as a serious violation of humanitarian law. Para. 17:

Unlike the Rome Statute, Art. 10(2)(a) of the ICTY Statute and Art. 9(2)(a) of the ICTR Statute contain an ‘ordinary crimes’ exception which permits trial by the International Tribunal if ‘the act for which he or she was tried was characterized as an ordinary crime’. In the absence of such a provision in the ICC Statute, an ‘ordinary crimes’ prosecution could satisfy the complementarity provision if one considers it to be a State's duty to exercise in any legitimate form its criminal jurisdiction over those responsible for international crimes. Rome Statute, sixth preambular paragraph. Likewise, the ne bis in idem principle embodied in Art. 20 of the ICC Statute may be construed broadly so as to preclude trial before the ICC where an ‘ordinary crimes’ prosecution has already occurred, so long as the trial was not a ‘sham’ as under the Art. 20(3) exceptions, similar to Art. 10(2)(b) of the ICTY Statute and Art. 9(2)(b) of the ICTR Statute. See C. Van den Wyngaert and T. Ongena, ‘Ne bis in idem Principle, Including the Issue of Amnesty’, in A. Cassese, P. Gaeta, and J. R. W. D. Jones (eds.), The Rome Statute of the International Criminal Court: A Commentary (2002), Vol. I, at 724–6. Art. 93(10)(a) of the ICC Statute (Other Forms of Cooperation) distinguishes between ‘a crime within the jurisdiction of the Court’ and ‘a serious crime under the national law of the requesting State’, thus suggesting that national ‘ordinary crimes’ prosecutions that may not meet all of the jurisdictional requirements of the Court could satisfy the complementarity provision with respect to the conduct in question.

68. Rome Statute, Art. 17(1)(a).

69. Rome Statute, Art. 17(1)(b).

70. Ibid., Art. 17(1)(c). Art. 20(3) provides:

71. Ibid., Art. 17(1)(d).

72. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, ICC-01/04–01/06–8, 10 February 2006, para. 29.

73. Ibid., at para. 32.

74. Ibid., at para. 31. The Prosecutor recognized and applied these criteria in the presentation of evidence in the Darfur situation alleging 51 counts of war crimes and crimes against humanity. Situation in Darfur, Sudan, Prosecutor's Application under Article 58 (7), ICC-02/05–56, 27 February 2007, paras. 253–67.

75. Prosecutor v. Thomas Lubanga Dyilo, supra note 72, paras. 33–9.

76. Rome Statute, Art. 5(1).

77. Ibid., Art. 8(1).

78. The ICC Office of the Prosecutor declined to open an investigation into alleged crimes committed in Iraq due to insufficient gravity under Art. 17(1)(d) of the Rome Statute. See Update on Communications Received by the Prosecutor, Annex: Iraq response, 10 February 2006, http://www.icc-cpi.int/organs/otp/otp_com.html.

79. Rome Statute, Art. 17(1)(d). Pre-Trial Chamber I has established a three-part test for determining whether the gravity threshold in the Rome Statute is met: (i) is the conduct that is the subject of the case either systematic (pattern of incidents) or large-scale (due consideration should also be given to the social alarm caused to the international community by the relevant type of conduct)?; (ii) considering the position of the relevant person in the state entity, organization or armed group to which he belongs, can it be considered that such person falls within the category of most senior leaders of the situation under investigation?; and (iii) does the relevant person fall within the category of most senior leaders suspected of being most responsible, considering (1) the role played by the relevant person through acts or omissions when the state entities, organizations or armed groups to which he belongs commit systematic or large-scale crimes within the jurisdiction of the Court, and (2) the role played by such entities, organizations or armed groups in the overall commission of the crimes within the jurisdiction of the Court in the relevant situation? Prosecutor v. Thomas Lubanga Dyilo, supra note 72, paras. 46, 63.

80. Rome Statute (Elements of Crimes), Art. 8(2)(a)–(b). The war crimes included in Art. 8(2)(c), (e), by contrast, include an element requiring that the conduct took place in the context of and was associated with an armed conflict not of an international character.

81. supra note 25.

82. US v. Calley, 22 CMA 534 (1973).

83. Rome Statute, Art. 11(1).

84. The Calley case, decided on 29 March 1971, followed by sentencing on 31 March 1971, was the subject of several appeals in US military and civilian courts. See, e.g., US v. Calley, 22 CMA 534 (1973); US v. Calley, 46 CMR 1131 (1973); 48 CMR 19 (1973); Calley v. Callaway, 382 F. Supp. 650 (MD Ga. 1974); Calley v. Callaway, 519 F.2d 184 (5th Cir. 1975).

85. The burden of proof for each element at this court-martial and at the ICC is the same: beyond a reasonable doubt. See Instructions from the military judge to the court members in US v. First Lieutenant William L. Calley, Jr., supra note 42; Rome Statute, Art. 66(3).

86. Instructions from the military judge to the court members in US v. First Lieutenant William L. Calley, Jr., supra note 42.

87. Ibid. According to one account, the massacre involved the killing of over 500 unarmed civilians by US service members. D. Linder, ‘An Introduction to the My Lai Courts-Martial’, http://www.law.umkc.edu/faculty/projects/ftrials/mylai/Myl_intro.html.

88. Rome Statute, Art. 8(2)(c)(i).

89. Ibid., Art. 8(2)(a)(i).

90. Ibid., Art. 8(2)(b)(i).

91. Rome Statute (Elements of Crimes), Art. 8(2)(a)(i).

92. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, supra note 72, para. 31. The Court would not need to make a determination of inadmissibility under Article 17(1)(b) or (c), since an investigation and prosecution would have already occurred in the Calley case.

93. Rome Statute (Elements of Crimes), Art. 8(2)(b)(i).

94. See http://www.law.umkc.edu/faculty/projects/ftrials/mylai/myl_Calltest.html for the testimony of Lieutenant Calley in his defence. Captain Medina, charged with overall responsibility for the My Lai massacre, was ultimately acquitted on all charges. H. Bigart, ‘Medina Found Not Guilty of All Charges on My Lai’, New York Times, 23 September 1971. According to one commentator, Captain Medina was the only US officer prosecuted under the theory of command responsibility during the Vietnam war. Note, ‘Command Responsibility for War Crimes’, (1973) 82 Yale Law Journal 1274.

95. In theory, a commander could be charged with being derelict in the performance of his duties by failing to comply with a treaty, including the Geneva Conventions. In order to prove that this commander was derelict in his duties, proof of the order would be required. The maximum sentence which may be imposed under the UCMJ for a wilful dereliction of duty is six months, however, regardless of the circumstances in which it occurred.

96. The Office of the Prosecutor noted in its response to communications received in regard to Iraq that ‘In light of the conclusion reached on gravity, it was unnecessary to reach a conclusion on complementarity.’ See Update on Communications Received by the Prosecutor, Annex: Iraq response, supra note 78, at 9. However, in analysing the admissibility of the Lubanga case, Pre-Trial Chamber I first considered complementarity of national proceedings followed by gravity. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, supra note 72, paras. 29–75.

97. See Update on Communications Received by the Prosecutor, Annex: Iraq response, supra note 78, at 8–9.

In May 2007 the Prosecutor opened an investigation into crimes allegedly committed in the Central African Republic, noting that ‘[t]he information we have now suggests that the rape of civilians was committed in numbers that cannot be ignored under international law’. ICC Press Release, ‘Prosecutor opens investigation in the Central African Republic’, 22 May 2007, http://www.icc-cpi.int/press/pressreleases/248.html.

98. Prosecutor v. Thomas Lubanga Dyilo, Decision on the Prosecutor's Application for a Warrant of Arrest, Article 58, supra note 72, paras. 46, 63. As noted above, Lieutenant Calley was charged with the wilful killing of approximately 100 individuals and was convicted of wilful killing of 22. See supra notes 82 and 86.

99. Ibid., at para. 63.

100. Ibid.

101. See Chain of Command in Relation to the My Lai Incident, http://www.law.umkc.edu/faculty/projects/ftrials/mylai/MYL_CHA.HTM.

102. The United States informed the Secretary-General of the United Nations of its intention not to become a party to the Rome Statute on 6 May 2002 and stated that ‘The armed forces of the United States will obey the law of war, while our international policies are and will remain completely consistent with these norms.’ In its policy statement on the ICC, the United States stated that it would disengage from the Court while asking other nations to respect the US decision not to join the Court. See US Under Secretary of State for Political Affairs Marc Grossman, American Foreign Policy and the International Criminal Court, Remarks to the Center for Strategic and International Studies, Washington, DC, 6 May 2002, available at http://www.state.gov/p/us/rm/9949.htm. Since that time the United States has negotiated over 100 bilateral non-surrender agreements to protect US service members and citizens from the jurisdiction of the Court. See R. Boucher, ‘US Signs 100th Article 98 Agreement’, press statement, 3 May 2005, http://www.state.gov/r/pa/prs/ps/2005/45573.htm. The US Congress has also passed legislation denying military and economic aid to nations refusing to sign such agreements, including the American Servicemembers’ Protection Act (http://www.state.gov/t/pm/rls/othr/misc/23425.htm) and amendments to the annual Foreign Operations Appropriations legislation. Recently, the United States has reiterated its intention not to ratify the Rome Statute, while also renewing its offer to assist the Court on the Darfur situation, consenting to the trial of Charles Taylor, the former Liberian leader, by the UN Special Court for Sierra Leone on ICC premises, and calling for a mutually respectful modus vivendi on the ICC. See Bellinger, supra note 1.