War Crimes Act of 1996

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The War Crimes Act of 1996 was passed with overwhelming majorities by the United States Congress and signed into law by President Bill Clinton.

The law defines a war crime to 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 States or a member of the U.S. armed forces. The penalty may be life imprisonment or death. The death penalty is only invoked if the conduct resulted in the death of one or more victims.

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[edit] Legislative History

The law criminalized breaches of the Geneva Conventions so that the United States could prosecute war criminals, specifically North Vietnamese soldiers that tortured U.S. soldiers during the Vietnam War. The Department of Defense "fully support[ed] the purposes of the bill,"[1] 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."[1] The bill passed by unanimous consent in the Senate and by a voice vote in the House,[1] showing that it was entirely uncontroversial at the time.

Ten years later, the United States Supreme Court ruled in Hamdan v. Rumsfeld ( 000 U.S. 05-184 ) that Common Article 3 of the Third Geneva Convention applied to the War on Terrorism, with the unstated implication that any interrogation techniques that violated Common Article 3 constituted War Crimes.[2] 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"[3] 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.

[edit] Potential application

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 Gonzales noted the possibility of prosecution under the War Crimes Act for mistreatment of detainees. He mentioned that no one could reliably predict whether the Act could be used as a basis for prosecuting U.S. officials because of the vague language of the statute, and the lack of a statute of limitations in cases where such mistreatment results in death. He therefore recommended that Bush find that the Geneva Conventions do not apply to al-Qaida and the Taliban.[4] However, the U.S. Supreme Court (in Hamdan v. Rumsfeld) decided that the Geneva Conventions do apply to al-Qaida and Taliban detainees. As a result, to eliminate the possibility of U.S. criminal liability for high-level administration officials, the Bush administration has sought to pass legislation that would provide immunity from prosecution.[5]

The adoption of the Military Commissions Act of 2006, by rewriting the War Crimes Act, appears to immunize the Bush administration and others against possible legal challenges regarding war crimes,[6] and by abolishing habeas corpus it effectively makes it impossible for detainees to challenge crimes committed against them.[7] Any investigation into possible wrongdoing in the War on Terror seems unlikely within United states and therefore the Center for Constitutional Rights and the International Federation for Human Rights have started legal proceedings in Germany, invoking universal jurisdiction.[8]

[edit] See also

[edit] References

  1. ^ a b c Smith, R. Jeffrey. "Detainee Abuse Charges Feared", Washington Post, 2006-07-28, p. A1. Retrieved on October 4, 2006.
  2. ^ Brooks, Rosa (2006-06-30). Did Bush Commit War Crimes?. Los Angeles Times. Retrieved on October 4, 2006. “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.”
  3. ^ Diplomatic Conference for the Establishment of International Conventions for the Protection of Victims of War (1949-08-12). Geneva Convention relative to the Treatment of Prisoners of War. United Nations Office of the High Commissioner for Human Rights. Retrieved on October 4, 2006.
  4. ^ War Crimes warnings
  5. ^ Holtzman, Elizabeth (2006-09-23). Bush seeks retroactive immunity for violating War Crimes Act. Chicago Sun-Times. Sun-Times News Group. Archived from the original on 2006-09-25. Retrieved on October 4, 2006.
  6. ^
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[edit] External links

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