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Does intent matter in war crimes? 

On Behalf of | Sep 21, 2022 | Military Law |

Anyone who has seen active duty knows that an engagement with the enemy in wartime is chaotic. By definition, war is a violent, chaotic exchange. In this context, how can we understand war crimes? How do we differentiate between an act of war and a criminal act?

Retired military leaders discuss war crimes

An interesting recent article in GW Today online (a publication of George Washington University) discusses a presentation by two retired military leaders. In their presentation, they discussed, among other things, the complications of uncovering and prosecuting military crimes in times of war and active combat.

There is no easy answer

Retired General John “Mick” Nicholson, who was a Commander in Afghanistan, discussed a tragic incident in which American pilots and gunners accidentally bombed a hospital when intending to target the enemy. “There was no criminal intent involved,” said Nicholson, “so there were no criminal charges. There were reprimands, but no one was going to jail.”

This quote goes to the importance of intent in war crime charges.

The legislation defining war crimes – 18 U.S. Code § 2441 does include the idea of intent. Section d.1.D., which discusses the war crime of murder, specifically states:

The act of a person who intentionally kills, or conspires or attempts to kill, or kills whether intentionally or unintentionally in the course of committing any other offense under this subsection, one or more persons taking no active part in the hostilities, including those placed out of combat by sickness, wounds, detention, or any other cause.

This section specifically includes “unintentionally” as part of the definition of the war crime of murder. This means that, technically at least, a military combatant could be charged with murder even if the killing was an accident.

However, as Nicholson explained, the lack of intentionality, combined with the chaotic situation of a given battle, can result in leniency. These are complicated issues, requiring the help of an experienced attorney.

Protecting yourself against criminal penalties

Whether you are under investigation for a war crime or facing a court martial, make sure you do everything possible to defend yourself and your future. The most important thing you can do is work with an experienced attorney who has successfully defended clients against charges of this kind.