Did Military Justice Fail or Prevail?

The subject of war crimes is now receiving significant attention. On March 13, 1998, the United States Senate, by a vote of 93-0, adopted a resolution urging the President to call on the- United Nations to create a tribunal to indict and try Saddam Hussein for his “crimes against humanity.” In the recent past, United Nations tribunals have tried crimes against humanity perpetrated in the former Yugoslavia and in Rwanda. With Administration backing, Congress has also recently enacted legislation intended to confer jurisdiction on the federal district courts to try certain war crimes of which American nationals are perpetrators or victims. The War Crimes Act of 1996 – which is based on the power of Congress to define and punish offenses against the law of nations – originally concerned “grave breaches” of only the Geneva Convention of 1949; but, as later amended, it punishes violations of both the Geneva and Hague Conventions. Congress apparently intended this grant of war crime jurisdiction to federal district courts to supplement, not supersede, the jurisdiction over violations of the law of war – part of the law of nations – long exercised by American military commissions and general courts-martial. The War Crimes Act was prompted by the experience of a former Air Force pilot, who, after being shot down and spending several years in a North Vietnamese prison, was concerned about the seeming absence of statutory authorization for the punishment of persons who mistreat prisoners of war. Certainly the concern about the welfare of prisoners of war is quite appropriate – and perhaps overdue. Although the impetus for recent war crimes legislation has been a perceived need to assure the availability of a forum to try persons who commit war crimes against American victims, we must never overlook the possibility that Americans may perpetrate war crimes against others. The recent commemoration of the thirtieth anniversary of the My Lai Massacre, which took place on March 16, 1968, is one reminder of this possibility. Publication of Son Thang: An American War Crime, Gary D. Solis’s gripping account of an incident that took place almost two years after My Lai, provides another.