- War Crimes Act of 1996
The War Crimes Act of 1996 was passed with overwhelming majorities by the
United States Congressand signed into law by President Bill Clinton.
The law defines a
war crimeto include a "grave breach of the Geneva Conventions", specifically noting that "grave breach" should have the meaning defined in any convention (related to the laws of war) to which the U.S. is a party. The definition of "grave breach" in some of the Geneva Conventions have text that extend additional protections, but all the Conventions share the following text in common: "... committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health."
The law applies if either the victim or the perpetrator is a national of the
United Statesor a member of the U.S. armed forces. The penalty may be life imprisonment or death. The death penaltyis only invoked if the conduct resulted in the death of one or more victims.
The law criminalized breaches of the Geneva Conventions so that the United States could prosecute war criminals, specifically
North Vietnamese soldiers who tortured U.S. soldiers during the Vietnam War. The Department of Defense "fully support [ed] the purposes of the bill,"cite news | first = R. Jeffrey | last = Smith | authorlink = R. Jeffrey Smith | title = Detainee Abuse Charges Feared | url = http://www.washingtonpost.com/wp-dyn/content/article/2006/07/27/AR2006072701908_pf.html | work = Washington Post| page = A1 | date = 2006-07-28 | accessdate = 2006-10-04] recommending that it be expanded to include a longer list of war crimes. Because the United States generally followed the Conventions, the military recommended making breaches by U.S. soldiers war crimes as well "because doing so set a high standard for others to follow." The bill passed by unanimous consentin the Senate and by a voice votein the House, showing that it was entirely uncontroversial at the time.
Ten years later, the
United States Supreme Courtruled in " Hamdan v. Rumsfeld" ( Findlaw_us|000|05-184 ) that Common Article 3 of the Geneva Conventions applied to the War on Terrorism, with the unstated implication that any interrogation techniques that violated Common Article 3 constituted War Crimes. [cite web | url = http://www.commondreams.org/views06/0630-27.htm | title = Did Bush Commit War Crimes? | accessdate = 2006-10-04 | last = Brooks | first = Rosa | authorlink = Rosa Brooks | date = 2006-06-30 | work = Los Angeles Times| quote = In other words, with the Hamdan decision, U.S. officials found to be responsible for subjecting war on terror detainees to torture, cruel treatment or other 'outrages upon personal dignity' could face prison or even the death penalty.] The possibility that American officials and soldiers could be prosecuted for war crimes for committing the "outrages upon personal dignity, in particular humiliating and degrading treatment" [cite web | url = http://www.unhchr.ch/html/menu3/b/91.htm | title = Geneva Convention relative to the Treatment of Prisoners of War | accessdate = 2006-10-04 | author = Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War | date = 1949-08-12 | publisher = United NationsOffice of the High Commissioner for Human Rights | page = I, a. 3, 1(c)] prohibited by the Conventions led to a series of proposals to make such actions legal in certain circumstances, which resulted in the Military Commissions Act of 2006.
White House officials were concerned that they and other U.S. officials could be prosecuted under the War Crimes Act for the U.S. treatment of detainees after 9/11 for violations of the
Geneva Conventions. In a January 2002 memorandum to the president, then- White House Counsel Alberto Gonzalesauthored a controversial memo in January 2002 that explored whether Article III of the Geneva Conventionapplied to Al Qaeda and Taliban fighters captured in Afghanistan and held in detention facilities around the world, including Camp X-Rayin Guantanamo Bay, Cuba. The memo made several arguments both for and against providing Article III protection to Al Qaeda and Taliban fighters. He concluded that Article III was outdated and ill-suited for dealing with captured Al Qaeda and Taliban fighters. He described as "quaint" the provisions that require providing captured Al Qaeda and Taliban fighters "commissary privileges, scrip, athletic uniforms, and scientific instruments". He also argued that existing military regulations and instructions from the President were more than adequate to ensure that the principles of the Geneva Convention would be applied. He also argued that undefined language in the Geneva Convention, such as "outrages upon personal dignity" and "inhuman treatment", could make officials and military leaders subject to the War Crimes Act of 1996 if mistreatment was discovered. [Gonzales, Alberto. [http://msnbc.msn.com/id/4999148/site/newsweek/ Decision Re Application of the Geneva Convention on Prisoners of War to the Conflict with Al Qaeda and the Taliban] , Memorandum for the President, January 25, 2002. (PDF file provided by MSNBC/Newsweek)]
The adoption of the
Military Commissions Act of 2006, defined in Section 6 of the act grave abuses of Common Article 3 to only include torture, cruel or inhumane treatment, murder, mutilationor maiming, intentionally causing serious bodily harm, rape, sexual assaultor abuse, and the taking of hostages, thereby limiting the scope of the original law.
* [http://thomas.loc.gov/cgi-bin/query/z?c104:H.R.3680: Federal Law 18 USC Sec. 2441] known as the "War Crimes Act"
* [http://assembler.law.cornell.edu/uscode/18/2441.html US Code, Part I, Title 18, Chapter 118, section 2441]
* [http://www.justforeignpolicy.org/involved/warcrimes091906.html JustForeignPolicy.org petition] posted in September 2006 asking visitors to help protect the War Crimes Act from repeal
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