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Published Aerospace Power Journal - Fall 2000


vortices


No soldier can fight properly unless he is properly fed on beef and beer.

—Duke of Marlborough, 1650


The Articles of War and the UCMJ

Maj Lisa L. Turner, USAF*

* The author is a student at Air Command and Staff College, Maxwell AFB, Alabama. She is a member of the bar of the state of Virginia and previously served as an instructor at the Air Force Judge Advocate School.

LT WILLIAM R. SINCOCK and Lt Theodore Q. Balides were not the first US servicemen to mistakenly drop bombs on a neutral country during World War II.1 They were, however, the first and apparently only airmen to be court-martialed for dereliction of duty as a result of such an incident.2 Their court-martial is not surprising, given that approximately one court-martial was convened for every eight service members who served in the US armed forces during World War II.3 It was unusual that they were afforded defense counsel and subsequently acquitted because at that time, there was no right to a defense lawyer and there were more than 60 general court-martial convictions for each day of hostilities.4 Those staggering numbers exposed millions to the military criminal system under the Articles of War. When those citizen-soldiers returned from World War II, a hue and cry went up in the nation to dramatically reform the system of military criminal law.5 As a result, the Uniform Code of Military Justice (UCMJ) was enacted and signed into law by President Harry Truman on 5 May 1950.6 This year, we celebrate the 50th anniversary of the UCMJ, a system that balances the need of the commander to ensure good order and discipline in the armed forces and the American traditions of due process and fairness.

In addition to concerning themselves with the UCMJ, service members who leave the boundaries of the United States must not only understand the UCMJ but also familiarize themselves with the laws of foreign countries and of the international community. Under some circumstances, a foreign country will retain the right to prosecute members of the US armed forces for violations of the host nation’s criminal laws. This concept is known as foreign criminal jurisdiction. Switzerland did not attempt to prosecute Lieutenants Sincock and Balides; however, other nations have prosecuted US service members. International law also impacts the legality of a service member’s actions. The Law of Neutrality prohibited intentional bombing of Switzerland during World War II and of the Chinese Embassy in Belgrade, Yugoslavia, during Operation Allied Force. In some instances, the international community has the right to prosecute alleged war crimes.

The Uniform Code of Military Justice

It would be pure speculation to ask whether Lieutenants Sincock and Balides would be court-martialed under the UCMJ for the bombing of Zurich and the resultant deaths of innocent civilians. What is certain is that today they would find a substantially different system with significantly increased rights and protections. The UCMJ was a significant break with tradition. It replaced almost unfettered command authority in the criminal justice arena with a system of justice that recognized the need to balance individual rights under the American tradition of fairness and due process with the command need to ensure good order and discipline.

Prior to the UCMJ, the Army and Navy had their own governing criminal statutes. The court-martial of Lieutenants Sincock and Balides occurred under the Army Articles of War, which were founded upon a tradition of commander-centered discipline reaching back through history. Personnel in the Navy and Marine Corps were tried under the Articles for the Government of the Navy. The Articles of War and the Articles for the Government of the Navy as originally adopted by the Continental Congress in 1775 were developed out of ancient military codes that centered upon the right and necessity of a military commander to exercise strong disciplinary measures when he saw fit.7 Courts were viewed as tools of the commander, and little thought was given to protecting the rights of an accused.8

Many of the over 16 million men and women who served in the United States armed forces during World War II, including civilian lawyers, left the services with a poor view of the Articles of War. The American Bar Association, American Legion, and other private organizations spoke out for reform, as did citizenry across the nation. The result was a significant reformation of the system with the creation and enactment of the UCMJ.9 Each subsequent refinement of the UCMJ has afforded members of the armed forces more protections. In the all-volunteer force of today, 2.39 service members per thousand are court-martialed in the Air Force,10 a fraction of those court-martialed during World War II. There were a total of only 851 courts-martial of all types in the Air Force in calendar year 1999.11

The present military justice system intentionally incorporates as many of the commonly recognized federal criminal procedural and evidentiary rules as possible.12 For example, although Col James M. Stewart was the presiding officer for United States v Sincock and Balides, a revision to the Manual for Courts-Martial (MCM) instituted the use of military judges. Lieutenants Sincock and Balides were fortunate to have a lawyer on their defense team, because there was no right to a lawyer under the Articles of War. Today, military members have greater rights to an attorney than our civilian counterparts. Military members are afforded a qualified defense counsel free of charge in all special and general courts-martial, whereas civilians are provided counsel free of charge only when their financial situation is such that it warrants it. Even before the civilian case that resulted in the familiar “Miranda Rights,” the UCMJ applied the right to remain silent (Article 31) to the military. Even now, Article 31 affords more protection to a member of the military who is suspected of an offense and is being questioned for official law enforcement or command purposes than a similarly situated civilian who is being questioned by the police. Our military justice system protects the individual through these and a variety of other measures, many of which were recognized in the military forum years before they were granted in civilian criminal trials.13

Just as the UCMJ protects the rights of members of the armed forces, it is also a tool for the commander to ensure discipline and obedience of lawful orders.14 Without means of accountability, such as the UCMJ, there could be no effective military discipline. The commander is inextricably involved in the military justice system and the needs of the military, and the accused are better served by his or her involvement.15 He or she knows the business of the accused and is in a significantly better position than a civilian prosecutor to determine whether a case should go to trial.16 What service member would want only lawyers deciding what cases should go to trial for dereliction of duty, rather than a commander who knows and understands the job of the suspect? Additionally, through the commander’s involvement, service members are again afforded more protections than their civilian counterparts. The convening authority, in his or her sole discretion, can lessen or dismiss any finding of guilt and reduce or eliminate the sentence adjudged by the criminal tribunal. He or she cannot, however, increase the punishment.17

Examining a few incidents that could, or have, resulted in dereliction of duty and other charges may be instructive. The command structure first receives information of a potential criminal act through any number of means, such as an Air Force Office of Special Investigations report, a Security Forces Investigations report, or an Accident Investigation Board report. For example, the Accident Investigation Board for the C-130E crash that occurred on 10 December 1999 at Ahmed Al Jaber Air Base, Kuwait, found “by clear and convincing evidence, that the cause of the mishap was the crew’s failure to follow governing directives and complacency in flight operations.”18 The Accident Investigation Board report was forwarded to the General Courts-Martial convening authority for him to “determine what if any punitive or administrative action should be taken against persons whose negligence or misconduct contributed to the accident.”19

After receiving a preliminary report of alleged criminal conduct, the command structure evaluates the information to determine whether additional facts should be developed or if disciplinary or administrative action should be initiated. The Office of the Staff Judge Advocate assists in this evaluation and provides a recommendation. An adverse investigative report does not automatically result in a trial. It is also important to remember that a court-martial is not in and of itself punishment. Just like a civilian trial, a court-martial is simply a forum for the presentation of facts; their application to law; findings as to guilt or innocence; and finally, if the accused is convicted, adjudication of an appropriate sentence. Referring charges to a court-martial does not warrant any inference of guilt, as the judge carefully instructs the members in every trial in which the accused pleads not guilty.20

Military members whose acts or omissions rise to the level of criminally negligent behavior can be tried for dereliction of duty under Article 92 of the UCMJ. People do make mistakes in the learning process. However, when their errors rise to the level of criminal dereliction of duty, commanders have an obligation to hold people accountable for their acts or omissions. The military justice system is a key to combat readiness and capability:

We’re entrusted with the security of our nation. . . . The tools of our trade are lethal, and we engage in operations that involve risk to human life and untold national treasures. . . . Because of what we do our standards must be higher than those of society at large. . . . The American public expects it of us and properly so. In the end, we earn the respect and trust of the American people because of the integrity we demonstrate.21

We accept a level of risk by the inherently dangerous nature of the profession of arms. Members of the armed forces are prepared to and regularly do make sacrifices for our nation. However, we cannot and should not have to accept increased risks or finally make the ultimate sacrifice because of a person’s laziness or gross dereliction. All service members, from the intelligence officer, targeteer, munitions troop, maintainer, navigator, to the pilot must diligently perform their phase of the job. Each of us relies on the other to accomplish the mission.

To prove dereliction of duty under Article 92, UCMJ, the government has to prove, beyond a reasonable doubt, that the accused had certain duties; he or she knew or reasonably should have known of those duties; and he or she was either willfully or through neglect or culpable inefficiency derelict in the performance of those duties. The MCM explains that “a duty may be imposed by treaty, statute, regulation, lawful order, standard operating procedure, or custom of the service.”22 It goes on to explain that “actual knowledge of duties may be proved by circumstantial evidence and need not be shown if the individual reasonably should have known of the duties. . . . This may also be demonstrated by regulations, training or operating manuals, customs of the service, academic literature or testimony, testimony of persons who have held similar or superior positions, or similar evidence.”23 Acts or omissions sufficient to sustain a finding of guilt for negligent dereliction of duty are judged by the care or lack of care a reasonably prudent person would have exercised under the same or similar circumstances. “Culpable inefficiency is inefficiency for which there is no reasonable or just cause.”24 It is important to note that a person is not derelict if he or she is simply inept at performing duties. The MCM gives the example that if a recruit who tries hard during rifle training cannot qualify, he or she is only inept and not guilty of dereliction of duty.25

Each service member is held accountable only for his or her phase of the mission and not for an error by someone else. The 7 May 1999 bombing of the Chinese Embassy in Belgrade is a prime example.26 The mission was to attack the headquarters of the Yugoslav Federal Directorate of Supply and Procurement, and the building, as such, was a legitimate military target.27 The pilots putting bombs on target were properly performing their duties and have not been court-martialed, nor will they be.28 Errors were instead made in the techniques used to locate the target.29 “None of the military or intelligence databases used to validate targets contained the correct location of the Chinese Embassy. Nowhere in the target review process was a mistake detected.”30 There were no indications during collaborative discussions by the targeting cell that the target was anything other than what the Central Intelligence Agency (CIA) said it was.31 Since the bombing was unintentional and not a result of military dereliction, no members of the armed forces will be disciplined.32 Instead, the CIA officials whose errors led to the bombing were held accountable under their system.33

When dereliction-of-duty cases go to trial, it is often as a result of accidents or willful behavior that results in deaths, serious injuries, or significant property losses, just as in the court-martial of Lieutenants Sincock and Balides. Their accidental bombing of Zurich not only “represented the deepest penetration of Switzerland by attacking United States bombers during the war,”34 it resulted in the deaths of five people, hospitalization of 12 additional people, total destruction of two homes, severe damage of other homes, and the rendering of approximately 22 people homeless.35 It also occurred on the same day as the accidental bombing of Basel, Switzerland, and after a series of accidental bombings of Switzerland by US bombers starting in 1943.36

The court-martial and conviction of a ship’s navigator whose dereliction resulted in running the ship aground and its destruction is yet another example.37 Certainly, other navigators have been derelict and have taken a ship off course, but it was the dereliction that had significant impact that resulted in a court-martial. A more recent example is the 1989 court-martial of a Marine lieutenant. Undoubtedly there have been occasions when troops were temporarily unaccounted for, yet the officer in charge is not always court-martialed. However, when a young lance corporal died of exposure in the California desert, the Marine lieutenant responsible for posting and recovering his troops during a tactical exercise was court-martialed and convicted of dereliction of duty.38

Had Lieutenants Sincock and Balides been found guilty of dereliction of duty, they could have been sentenced to a maximum punishment of dismissal, forfeiture of all pay, and confinement for life. Today, the maximum punishment for violation of dereliction of duty (Article 92, UCMJ) is less severe and dependent upon whether the accused was willfully derelict. If the dereliction of duty was intentional (willful), he or she can be confined for up to six months and made to forfeit all pay and allowances. If the accused is enlisted, he or she can also be sentenced to a bad-conduct discharge. If the dereliction was not willful, the maximum imposable sentence is forfeiture of two-thirds pay per month for three months and confinement for three months; a punitive discharge is not authorized.

In cases involving damage to property, injury, or death, the accused can also be charged with other offenses such as murder by an act inherently dangerous to another, involuntary manslaughter, or negligent homicide.39 As one might expect, the maximum punishments for these offenses range from three years to life in confinement. An example of murder while engaged in an act inherently dangerous to others is found in the conviction of a soldier for the death of an unarmed civilian woman during a “sham” firefight he and some of his friends entered into during Operation Just Cause to cover his loss of a pistol.40 The MCM gives an example of this wanton disregard for human life as “flying an aircraft very low over one or more persons to cause alarm.”41

In certain cases, acts or omissions can result in nonjudicial punishment under Article 15 of the UCMJ—commonly referred to in the Air Force as “Article 15s”—or other administrative actions. For example, 10 individuals received administrative letters of either reprimand, admonition, or counseling as a result of the 14 April 1994 shootdown of two US Army Black Hawk helicopters during Operation Provide Comfort in northern Iraq.42

Commanders have also been held accountable for dereliction of duty, and their punishments have run the gamut from administrative actions such as reprimands, being “red-lined” (promotion cancellation), and relieved of command, up to disciplinary action or court-martial. An example is the court-martial of the Fairchild AFB Operations Group commander following the 24 June 1994 crash of a B-52H and deaths of all four aircrew members aboard.43 Three months before the crash, the pilot repeatedly and intentionally flew well below published clearances, once flying the B-52H in a pass less than 50 feet above the ground and twice flying so low that the copilot seized control of the B-52H to avoid impacting the ridgeline. After the aircrew went to the squadron commander and refused to fly with the pilot again, the squadron commander notified the group commander of the incident and recommended that the pilot be grounded. The squadron commander went so far as to tell the group commander that he would like to ensure that squadron crews never flew with the pilot again because of his lack of air discipline. Other members of the wing also approached the group commander about the pilot’s inappropriate flying. The group commander declined to ground the pilot. Additionally, the group commander and wing commander were briefed by the pilot on the flight profile he planned to fly at an upcoming air show. They approved a profile of bank-and-pitch patterns in violation of established directives. The crash occurred at the end of a practice flight for the air show. The group commander pled guilty to dereliction of duty. Other members of the wing were disciplined; one received an Article 15, and others were reprimanded.44

Lieutenants Sincock and Balides were acquitted of all charges, despite the substantially different system that we are familiar with today. Commanders then were known to mark prosecutors down in their performance reports if they lost cases and to require court-martial members to reopen a case after a finding of not guilty and return a guilty verdict. Today, under the MCM, unlawful command influence is strictly prohibited, and “no convening authority or commander may censure, reprimand, or admonish a court-martial or other military tribunal or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged.”45 Additionally, all military members are prohibited from “attempt[ing] to coerce or, by any unauthorized means, influence the action of a court-martial . . . or any member thereof, in reaching the findings or sentence in any case.”46 Thus, acquittals, such as that of the airborne warning and control system (AWACS) crew member acquitted of dereliction of duty following the shootdown of the Army helicopters in Operation Provide Comfort, are accepted as part of the functioning system and evidence that the system is fair to individuals.47

Foreign Criminal Jurisdiction

In addition to being subject to US law, military members may be subject to the laws of other nations. Upon discovering they had bombed Zurich, Lieutenants Sincock and Balides may have wondered if they would be prosecuted in Swiss criminal courts. When a military member deployed or operating abroad allegedly commits a crime in another country, the question arises as to which country has the authority to try the individual. This concept is called “foreign criminal jurisdiction” and is of significant interest to deployed commanders and individuals.

It is the policy and practice of the United States to try to obtain jurisdiction and allow the United States military to take appropriate action.48 There were apparently no efforts to prosecute Lieutenants Sincock and Balides in Swiss courts. However, there have been efforts by other nations on other occasions to exercise criminal jurisdiction over US servicemen and servicewomen, as in the case of the 3 February 1998 accident involving the US Marine Corps EA-6B Prowler jet on a low-altitude training flight in Italy that severed a ski gondola cable, causing the cable car to plunge to the ground, killing 20 people.49 An Italian prosecutor tried but failed to obtain jurisdiction over the aircrew and others in the chain of command. The Italian court dismissed the indictments for lack of jurisdiction.50 Italy was not the proper place for the trial, in accordance with the North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA), since the United States had the primary right to jurisdiction “in relation to . . . offenses arising out of any act or omission in the performance of official duty.”51 The United States exercised criminal jurisdiction, and the pilot was prosecuted and acquitted on charges of involuntary manslaughter, dereliction of duty, and destroying private and government property; thereafter, similar charges against the navigator were withdrawn. Both men were convicted of charges of obstruction of justice and conspiracy to obstruct justice arising from the destruction of a videotape recording of the flight by the navigator at the direction of the pilot.52

The question of who has jurisdiction depends upon a variety of factors, primarily based upon which countries are involved and what, if any, international agreements they have entered, such as the NATO SOFA. Since the UCMJ allows military members to be held accountable for their behavior wherever in the world they may be deployed or permanently assigned,53 other nations are more willing to release US service members to the United States than they might otherwise be.

International Law and the Law of Neutrality

As the article “The Bombing of Zurich” mentions, Switzerland remained outside the conflict during World War II and as such was a neutral party. International law of armed conflict imposes duties on and grants rights to neutrals.54 Generally, belligerents may not enter the territory of a neutral.55 Certainly, had the bombing of Switzerland by the United States during World War II been intentional, it would have been a war crime.56 In some instances, the international community has jurisdiction to prosecute alleged war crimes. Crimes against the peace, crimes against humanity, and war crimes were tried in both the European and Pacific theaters as a result of actions taken during World War II.57 A more recent example is the International Criminal Tribunal for the former Yugoslavia, which has jurisdiction of alleged war crimes in that country.58

Because the bombing of Zurich was not intentional, it was not a war crime. No member of the crew was prosecuted by an international tribunal. Likewise, although Chinese news reports and rhetoric called the bombing of the Chinese Embassy a premeditated war crime, it was not the intentional bombing of a neutral.59 Ms. Carla Del Ponte, the UN’s chief war crimes prosecutor, recently told the Security Council that “although some mistakes were made by NATO, I am very satisfied that there was no deliberate targeting of civilians or unlawful military targets by NATO during the bombing campaign.”60 The bombing was in no way a violation of the Law of Armed Conflict and is therefore not a crime under international law.61 Accordingly, the bombing of the Chinese Embassy was likewise not prosecuted under international law.62

Conclusion

Gen George Washington said, “Discipline is the soul of the Army.”63 However, discipline is not possible without justice. The system of military justice we operate under today is both just and tailored to fill the unique needs of the military community. Its purpose “is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States.”64

The question How could such events happen? was asked about the bombing of Zurich and about the bombing of the Chinese Embassy and will inevitably be asked in future conflicts. When that question is asked, members of the armed forces today are fortunate to be governed by the UCMJ rather than by the Articles of War that regulated the actions of Lieutenants Sincock and Balides. We are also fortunate to be part of a nation that aggressively works to protect its service members in the realms of foreign criminal jurisdiction and international law.  

Maxwell AFB, Alabama

Notes

1. The reference is to the unintentional bombing of Zurich, Switzerland, in World War II. See Jonathan E. Helmreich, “The Bombing of Zurich,” Aerospace Power Journal 15, no. 2 (Summer 2000): 92–108; and James M. Spaight, Air Power and War Rights (New York: Longmans, Green, 1947), 431.

2. See generally Jonathan E. Helmreich, “The Diplomacy of Apology: United States Bombings of Switzerland during World War II,” Air University Review 28, no. 4 (May–June 1977): 19–37.

3. Brig Gen John S. Cooke, USA, Retired, “Military Justice and the Uniform Code of Military Justice,” Army Lawyer, March 2000, 2; Hon. Walter T. Cox III, “The Army and the Constitution,” Military Law Review 118 (1986): 11, note 67; and Capt John T. Willis, “The United States Court of Military Appeals: Its Origin, Operation, and Future,” Military Law Review 55 (1972).

4. Cox, 7.

5. Ibid., 2.

6. Public Law 506, 81st Congress, c.169 1, 64 Stat. 108; Title 50 USC (chap. 22) 551–736, The Manual for Courts-Martial (MCM), United States, 1951, was prescribed by Executive Order 10214 signed by President Truman on 8 February 1951. The MCM became effective on 31 May 1951.

7. Cooke, 1.

8. Ibid.

9. The Uniform Code of Military Justice (UCMJ) took effect on 31 May 1951.

10. Telephone interview with Ms. Hattie Simmons, Air Force Legal Service Agency, Military Justice Division, 17 May 2000.

11. Ibid.

12. Appendix 21, “Analysis of Rules for Courts-Martial,” MCM, A21-1 (1998); appendix 22, “Analysis of the Military Rules of Evidence,” MCM, A22-2 (1998); Article 36, UCMJ (1998).

13. For example, the right to a qualified attorney was not recognized for some 12 years after it was granted in the military context. Gideon v Wainwright, 372 US 335 (1963). Military members had the right against self-incrimination more than 15 years prior to its recognition in the civilian community in the familiar case of Miranda v Arizona, 384 US 436 (1996).

14. See Curry v Secretary of Army, 595 F2d 837 (D.C. Cir 1979).

15. He or she convenes the court-martial and selects the members in accordance with the UCMJ. After a conviction, he or she reviews the case and sentence. He or she may approve or reduce the sentence of the members. He or she can even set aside the sentence or conviction. He or she cannot make the sentence harsher.

16. In most civilian criminal systems, the prosecutor, whether that be the district attorney, the attorney general, or another office of prosecutors, determines what cases should go to trial.

17. Rule for Court-Martial 1107, Action by the Convening Authority (MCM, 1998 edition).

18. US Air Force, Class A Flight Mishap Accident Investigation Board Report: C-130E, Tail Number 63-7854 (20 March 2000). The board found that “the crew violated AFI 11-202V3 when they elected to fly a published approach . . . when the weather required for the approach was below the required minimums. The crew violated Air Force Manual (AFMAN) 11-217, Instrument Flight Procedures, when they failed to contact the Al Jaber AB tower to check weather prior to beginning their en route descent. The pilots violated AFMAN 11-217 when they failed to monitor their flight instruments during night conditions on the approach to Al Jaber AB. . . . The pilot deviated from Air Force directives when he did not wear his glasses to fly” (page 20 of the accident report).

19. Air Force Instruction 51-503, Aircraft, Missile, Nuclear & Space Accident Investigations, 1 December 1998. Note: The Air Force uses the term accident investigation in lieu of legal mishap investigation. The Army uses the term collateral investigation, and the Navy uses the term JAGMAN (JAG) Manual investigation.

20. Department of the Army Pamphlet 27-9, Military Judges’ Benchbook, 30 September 1996, 42.

21. Gen Ronald R. Fogleman, Air Force chief of staff, “The Bedrock of Integrity,” remarks to the US Air Force Academy, Commander Leadership Series, 8 November 1995.

22. Par. 16c. (3), MCM (1998), IV-24.

23. Ibid.

24. Ibid.

25. Ibid.

26. See DOD Report to Congress, Kosovo/Operation ALLIED FORCE After-Action Report, 31 January 2000 (unclassified); statement of Hon. John J. Hamre, Deputy Secretary of Defense, before the House Permanent Select Committee on Intelligence, 22 July 1999.

27. Kosovo/Operation ALLIED FORCE After-Action Report, xx.

28. Jamie McIntyre, Pentagon correspondent, “No punishment for bombing of Chinese Embassy in Belgrade,” Cable News Network (CNN), 11 April 2000.

29. MCM (1998), xx.

30. Ibid.

31. Lt Col Tony E. Montgomery, deputy staff judge advocate, Headquarters European Command, to the author, E-mail letter, subject: [Chinese Embassy Bombing], 22 May 2000.

32. See generally McIntyre, CNN.Com, 11 April 2000; Supra, note 29.

33. McIntyre, note 30.

34. Helmreich, “Diplomacy of Apology,” 33.

35. Ibid., 36, note 47.

36. Ibid., passim.

37. United States v Sievert, 29 CMR 657 (2 December 1958).

38. United States v Lawson, 33 MJ 946 (NMCMR, 1991).

39. Murder is in violation of Article 118; manslaughter in violation of Article 119; and negligent homicide in violation of Article 134.

40. United States v McMonagle, 34 MF 852 (ACMR, 1992).

41. Article 118, c(4)(a), MCM (1998), IV-64.

42. Operation Provide Comfort: Review of U.S. Air Force Investigation of Black Hawk Fratricide Incident Testimony, 06/18/98, GAO/T-OSI-98-13. The administrative actions were subsequent to six Article 32 UCMJ investigations and a court-martial.

43. The vice wing commander, the pilot’s squadron commander, and the senior navigator on base also died in the crash.

44. Charge sheet, 30 September 1994, United States v Pellerine; Stipulation of Fact, 18 May 1995, signed by the counsel and accused; interview with Lt Col Gregory E. Pavlik, trial counsel for United States v Pellerine at Maxwell AFB, Ala., 12 April 2000.

45. Rule for Court-Martial 104, Unlawful Command Influence, MCM (1998).

46. Ibid.

47. See generally Maj Dawn R. Eflein, “A Case Study of Rules of Engagement in Joint Operations: The Air Force Shootdown of Army Helicopters in Operations Provide Comfort,” Air Force Law Review 44 (1998): 33.

48. See generally Maj Steven J. Lepper, “A Primer on Foreign Criminal Jurisdiction,” Air Force Law Review 37 (1994): 169.

49. Associated Press, “Top Italian court says no authority exists for civil suit over cable car crash,” CNN, n.p.; on-line, Internet, 4 August 2000, available from http://www.cnn.com/etv/cwc/WORLD/europe/story2 html.

50. Estes Thompson, “Marine Pilot Acquitted of All Charges in Gondola Case,” Washington Post, 4 March 1999; interview of Cesare De Carlo, Online NewsHour (web site of the NewsHour with Jim Lehrer), Public Broadcasting System, 4 March 1999, n.p.; on-line, Internet, available from http//www.pbs.org/ newshour/bb/military/jan-june99/trial_3-4.html.

51. Agreement between the Parties to the North Atlantic Treaty Regarding the Status of Their Forces, 19 June 1951, Article VII, par. 3(a)(ii).

52. The pilot was sentenced to six months in prison, and the navigator was sentenced to dismissal from the Marine Corps. Lecture at Interservice Military Judges Seminar, Air Force Judge Advocate General School, Maxwell AFB, Ala.,1999.

53. Solorio v United States, 483 US 435 (1987), and progeny.

54. L. C. Green, The Contemporary Law of Armed Conflict (New York: St. Martin’s Press, c.1993), 258.

55. See ibid., passim.

56. Ibid.

57. Ibid.

58. The International Criminal Tribunal for the Former Yugoslavia (ICTY) receives its authority from United Nations Security Council Resolution (UNSCR) 827, which established “an international tribunal for the sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia.” The ICTY investigates alleged crimes occurring on or after 1 January 1991. UNSCR 1244 (10 June 1999) “demands full cooperation by all concerned, including the international security presence, with the International Tribunal.”

59. Par. 16c (3), MCM (1998), IV-24.

60. Barbara Crossett, “U.N. War Crimes Prosecutor Declines to Investigate NATO,” New York Times, 3 June 2000.

61. “China calls for new investigation of embassy bombing,” 8 May 2000, n.p.; on-line, Internet, 4 August 2000, available from http://www.cnn.com/2000/ASIANOW/east/05/07/china.us.embassy.

62. Green, passim. On 30 December 1999, the Office of the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia stated, “There is no formal inquiry into the actions of NATO during the conflict in Kosovo.”

63. Cooke, 6.

64. Preamble to the 1998 edition of the Manual for Courts-Martial, United States, I-2.


Disclaimer

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.


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