Dish Best Not Served at All: How Foreign Military War Crimes Suspects Lack Protection Under United States and International Law [open pdf - 274KB]
Part I of this document is a simple introduction to the paper itself. Part II of this article describes the domestic war-crimes prosecution of one foreign soldier: the trial of Japanese General Masaharu Homma for his role in one of the more infamous war crimes of World War II, the deaths of thousands of American and Filipino prisoners of war (POWs) during the Bataan Death March. Homma's trial featured questionable procedural and evidentiary rules, which his victorious adversaries hastily had created and administered. The Supreme Court's approval of the U.S. Army's methods used to convict and condemn Homma led to his execution after trial. Part III examines the sources of authority for prosecuting soldiers like Homma for war crimes such as the mistreatment of POWs. This part describes how the U.S. Constitution, supporting U.S. statutes, the Third Geneva Convention, and other international conventions on the rules of war provide a framework for defining and prosecuting war crimes. Part IV examines the existing and proposed systems of U.S. and international law to show how the authority to prosecute would still be misused, and how Homma would have fared no better today. These systems include the Uniform Code of Military Justice (UCMJ), the procedural provisions of the Third Geneva Convention and Protocol I to the Geneva Conventions, and the ICC. Part V reviews an example of the most effective war-crimes prosecution to date, the International Criminal Tribunal for the former Yugoslavia (ICTY), whose establishing statute provides primacy of jurisdiction over national courts. In conclusion, the article advocates that primacy must be included in all future international criminal tribunals to instill necessary procedural protections for foreign military war-crimes suspects. Such reform is required absent additional ratifications of Protocol I or amendments to the ICC statute.
Military Law Review, v.172, June 2002, p. 40-95