text: War Crimes and Enforcement of the Law of Armed Conflict
  Tribunal. This tribunal conducted the landmark Trial of Major War Criminals, with 21 Axis defendants, in
  Nuremberg, Germany, from November 1945 to October 1946. Another post-war tribunal was established in
  Tokyo to try war criminals in the Pacific Theater of World War II. The jurisprudence of the ICTY, established
  by the UN Security Council in 1993, also provides numerous examples of war crimes prosecutions.
  International Criminal Court and the Rome Statute
  8-58. In 1998, 120 Nations at a Diplomatic Conference in Rome voted to approve the final text of the Rome
  Statute, adopting a treaty that establishes an International Criminal Court (ICC). The Rome Statute entered
  into force on July 1, 2002. Although the United States did not vote in favor of the treaty and has indicated
  that it does not intend to become a party to the Rome Statute, the U.S. delegation contributed significantly to
  its development, including the drafting of the elements of crimes and the inclusion of fundamental due
  process protections.
  8-59. Unlike tribunals that were established for specific conflicts, the ICC, which is located in The Hague,
  is intended to apply to situations after the establishment of the ICC. The Rome Statute provides that the ICC
  “shall have the power to exercise its jurisdiction over persons for the most serious crimes of international
  concern” and “shall be complementary to national criminal jurisdictions” (Rome Statute art. 1). The latter
  principle that the ICC’s jurisdiction is “complementary” means that the ICC should not investigate or
  prosecute allegations when a State is or has already genuinely done so. The Rome Statute provides that the
  ICC has jurisdiction with respect to:
  * The crime of genocide,
  * Crimes against humanity,
  * War crimes, and
  * The crime of aggression.
  8-60. The Rome Statute generally only confers jurisdiction on the ICC when the accused is a national of a
  Rome Statute Party; when the conduct occurs on the territory of a Rome Statute Party; or when the conduct
  occurs in a situation that has been referred to the ICC by the UN Security Council. The ICC will not prosecute
  an individual when a State has exercised or is in the process of exercising jurisdiction over the matter, unless
  that State is unwilling or unable to genuinely investigate or prosecute the case (Rome Statute art. 17). While
  the ICC purports to exercise jurisdiction over non-State Parties to the Rome Statute, the United States has a
  longstanding and continuing objection to any assertion of jurisdiction by the ICC with respect to nationals of
  States not Party to the Rome Statute in the absence of consent from such States or a referral by the Security
  Council (see DOD Law of War Manual, 18.20.3.1). Further, the U.S. Government has negotiated SOFAs and
  other agreements with many countries, which under a provision of the Rome Statute (art. 98) clarify that U.S.
  personnel may not be turned over to the ICC by those countries absent U.S. consent. Moreover, in
  multinational operations or peace operations U.S. personnel may be asked to cooperate with ICC prosecutors
  who are investigating allegations of genocide, crimes against humanity, or war crimes. Any requests for
  cooperation by the ICC should be forwarded to DOD because such requests implicate U.S. policy toward the
  ICC and U.S. law, including the American Service Members’ Protection Act, imposes certain restrictions on
  any support to the ICC.
  Forum Considerations Connected to the Status of the Accused
  8-61. Ordinarily, U.S. service members should be tried by courts-martial under appropriate provisions of the
  UCMJ or, if separated from the military, in Federal court pursuant to MEJA (see paragraphs 8-37 and 8-50).
  8-62. Civilians who commit war crimes while serving with or accompanying U.S. forces outside the United
  States face prosecution in Federal court under the War Crimes Act or other Federal law. Additionally,
  civilians serving with or accompanying the Armed Forces in the field are subject to trial by court-martial for
  violations of the UCMJ as long as the DOJ does not assert jurisdiction to prosecute in Federal court. The
  United States may prosecute enemy POWs or retained personnel captured in an international armed conflict
  who commit war crimes (either pre-capture or while detained) in courts-martial or other proceedings,
  provided the requirements of the GPW are met (see DOD Law of War Manual, 9.28; see paragraph 8-54).