Using Extraterritorial Jurisdiction to Prosecute Violations of the Law of War: Looking Beyond the War Crimes Act

Abstract

After September 11, 2001, additions and modifications to federal law placed renewed focus on the ability of the government to prosecute American citizens for extraterritorial misconduct that violates the law of war. This Note argues that federal laws, in their totality, provide the ability to prosecute American citizens who violate the law of war while outside the territorial limits of the United States. Although the scope of prosecutable offenses under the War Crimes Act is limited, other federal laws present prosecutors with multiple options for bringing an American citizen to justice in either a federal court or military court-mardal for a violation of the law of war. The cases of United States v. Passam and United Stales v. Green demonstrate that Americans who violate the law of war can be, and have been, prosecuted by using means other than the War Crimes Act. This Note highlights deficiencies, however, in federal laws that create circumstances where immunity from prosecution exists for certain assaults that violate the law of war. The Note then concludes with recommendations for congressional action to change federal law and the Uniform Code of Military Justice to fix existing deficiencies and strengthen the ability of the U.S. government to hold American citizens accountable for extraterritorial misconduct that violates the law of war.