FEDERAL COURTS LAW REVIEW - 2005 Fed. Cts. L. Rev. 4
TIME FOR CONGRESSIONAL ACTION: THE NECESSITY OF DELINEATING THE JURISDICTIONAL RESPONSIBILITIES OF FEDERAL DISTRICT COURTS, COURTS-MARTIAL, AND MILITARY COMMISSIONS TO TRY VIOLATIONS OF THE LAWS OF WAR
By Christopher C. Burris
[a.1] This article: 1) explains the jurisdictional scope of U.S. prosecutions of violations of laws of war; and, 2) shows Congress needs to update the system to clearly delineate the jurisdiction of the three domestic legal fora available for war crimes prosecutions. It does so by first providing an overview of the Constitutional roles of the President and Congress in sanctioning violations of the laws of war. It then examines the three primary legal fora available under U.S. law for criminal prosecutions: federal district courts, courts-martial, and military commissions. After that, the article outlines the sources of punitive criminal law that can be applied in U.S. legal fora to prosecute violations of humanitarian international law: the U.S. Code, the Uniform Code of Military Justice, and customary international humanitarian law itself. It then discusses how the law violated impacts which forum can try a particular crime. The article then details the domestic legal restrictions on the President's authority in selecting the forum in which to prosecute a case. Next, the article explains how international law restricts the President's authority in this area. Finally, this article concludes by arguing that: 1) significant jurisdictional gaps in the U.S.'s ability to prosecute violations of international humanitarian law appear to exist; and, 2) congressional action is warranted to provide a clear and effective legal regime to empower decisive Presidential action in this area.