text: War Crimes and Enforcement of the Law of Armed Conflict
  criminal enterprise or “JCE.” In other words, under JCE, every person of the joint enterprise may be held
  equally liable as a conspirator, even if his or her actions are distant from the actual execution of the crimes.
  It is not a violation itself, but rather a theory upon which an individual can be liable for violations committed
  by others.
  Planning, Instigating, and Ordering
  8-36. The ICTY provides that an accused can be liable under international law for planning, instigating, or
  ordering a violation of LOAC, even though the accused does not physically commit the violation (ICTY art.
  7(1)). Under U.S. law, an individual who planned, instigated, or ordered conduct that would constitute a war
  crime may be liable for that crime as a principal or aider and abettor (see paragraph 8-32).
  PROSECUTION OF WAR CRIMES
  8-37. Prosecution of war crimes requires individual States with competent authority, or international courts
  granted authority by competent States, to assert jurisdiction, provide a venue, and authorize punishment in
  order to try those who violate LOAC. This section examines jurisdiction and venue issues, penalties, and
  defenses from a U.S. perspective.
  JURISDICTION AND VENUE
  8-38. Acts that constitute war crimes are within the jurisdiction of general courts-martial (UCMJ art. 18; 10
  U.S.C. § 818), military commissions, provost courts, other U.S. military tribunals (UCMJ art. 21; 10 U.S.C.
  §821), and U.S. civilian courts.
  8-39. An act that constitutes a war crime under LOAC likely also constitutes a crime under U.S. law. Persons
  subject to the UCMJ are ordinarily charged with violations of a specific provision of the UCMJ rather than a
  violation of LOAC because charging offenses as specific UCMJ violations prevent adjudication of complex
  issues, such as proving a state of armed conflict existed. Charging an offense under the UCMJ carries a
  maximum punishment that is comparable to violations of federal law, and is a method with which military
  prosecutors are familiar (see RCM 307 Discussion). Before considering to pursue charges against DOD
  personnel under LOAC, consideration should be given to the availability of prosecution under specific
  provisions of the UCMJ.
  Universality of Jurisdiction
  8-40. In respect to grave breaches, the State’s obligation under the 1949 Geneva Conventions is to prosecute
  or, under certain circumstances, to transfer to another State for prosecution, alleged perpetrators regardless
  of their nationality (see, for example, GPW art. 129). Historically neutral or non-belligerent States have
  generally not exercised jurisdiction in relation to alleged war crimes, and such efforts in recent years have
  sometimes met strong objections and generally have not been successful without the consent of belligerent
  States. The jurisdiction of U.S. military tribunals in connection with war crimes is not limited to offenses
  committed against U.S. citizens, but extends to offenses committed against nationals of allies, co-belligerents,
  and stateless persons. Persons subject to the UCMJ who commit LOAC violations are usually prosecuted for
  offenses under the UCMJ via courts-martial, and the UCMJ explicitly “applies in all places” (10 U.S.C. §
  805). Violations of LOAC committed in the United States or committed by other U.S. persons usually
  constitute violations of federal criminal law and would ordinarily be prosecuted under such laws.
  Commanders of U.S. service members and civilians must ensure that members of their command who commit
  war crimes are promptly investigated and, when there is sufficient evidence, adequately punished (see
  paragraphs 8-13 to 8-18).
  Uniform Code of Military Justice
  8-41. Persons who are subject to the UCMJ include members of the Active and Reserve Components of the
  U.S. Armed Forces, POWs in the custody of the United States, and in time of declared war or contingency
  operations, persons serving with or accompanying the Armed Forces in the field (UCMJ art. 2; 10 U.S.C. §
  802). The UCMJ explicitly applies in all places and can be enforced against individuals subject to the UCMJ
  even if they have committed crimes outside the United States. Accordingly, the UCMJ provides great