War Crimes Act of 1996
Encyclopedia
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.
ese soldiers who torture
d U.S. soldiers during the Vietnam War
. The Department of Defense
"fully support[ed] the purposes of the bill," 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 consent
in the Senate and by a voice vote
in the House, showing that it was entirely uncontroversial at the time.
Ten years later, the United States Supreme Court ruled in Hamdan v. Rumsfeld
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. 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" 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
.
. In a January 2002 memorandum to the president, then-White House Counsel
Alberto Gonzales
authored a controversial memo that explored whether Article III of the Geneva Convention applied to Al Qaeda and Taliban fighters captured in Afghanistan and held in detention facilities around the world, including Camp X-Ray
in 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.
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
, mutilation
or maiming, intentionally causing serious bodily harm, rape
, sexual assault
or abuse, and the taking of hostages
, thereby limiting the scope of the original law.
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
and signed into law by President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Bill Clinton
Bill Clinton
William Jefferson "Bill" Clinton is an American politician who served as the 42nd President of the United States from 1993 to 2001. Inaugurated at age 46, he was the third-youngest president. He took office at the end of the Cold War, and was the first president of the baby boomer generation...
.
The law defines a war crime
War crime
War crimes are serious violations of the laws applicable in armed conflict giving rise to individual criminal responsibility...
to include a "grave breach of the Geneva Conventions
Geneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
", 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
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
or a member of the U.S. armed forces
Military of the United States
The United States Armed Forces are the military forces of the United States. They consist of the Army, Navy, Marine Corps, Air Force, and Coast Guard.The United States has a strong tradition of civilian control of the military...
. 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.
Legislative history
The law criminalized breaches of the Geneva Conventions so that the United States could prosecute war criminals, specifically North VietnamNorth Vietnam
The Democratic Republic of Vietnam , was a communist state that ruled the northern half of Vietnam from 1954 until 1976 following the Geneva Conference and laid claim to all of Vietnam from 1945 to 1954 during the First Indochina War, during which they controlled pockets of territory throughout...
ese soldiers who torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
d U.S. soldiers during the Vietnam War
Vietnam War
The Vietnam War was a Cold War-era military conflict that occurred in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. This war followed the First Indochina War and was fought between North Vietnam, supported by its communist allies, and the government of...
. The Department of Defense
United States Department of Defense
The United States Department of Defense is the U.S...
"fully support[ed] the purposes of the bill," 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 consent
Unanimous consent
In parliamentary procedure, unanimous consent, also known as general consent, or in the case of the parliaments under the Westminster system, leave of the house, is a situation in which no one present objects to a proposal. The chair may state, for instance: "If there is no objection, the motion...
in the Senate and by a voice vote
Voice vote
A voice vote is a voting method used by deliberative assemblies in which a vote is taken on a topic or motion by responding verbally....
in the House, showing that it was entirely uncontroversial at the time.
Ten years later, the United States Supreme Court ruled in Hamdan v. Rumsfeld
Hamdan v. Rumsfeld
Hamdan v. Rumsfeld, 548 U.S. 557 , is a case in which the Supreme Court of the United States held that military commissions set up by the Bush administration to try detainees at Guantanamo Bay lack "the power to proceed because its structures and procedures violate both the Uniform Code of Military...
that Common Article 3 of the Geneva Conventions applied to the War on Terrorism
War on Terrorism
The War on Terror is a term commonly applied to an international military campaign led by the United States and the United Kingdom with the support of other North Atlantic Treaty Organisation as well as non-NATO countries...
, with the unstated implication that any interrogation techniques that violated Common Article 3 constituted War Crimes. 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" 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
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
.
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 ConventionsGeneva Conventions
The Geneva Conventions comprise four treaties, and three additional protocols, that establish the standards of international law for the humanitarian treatment of the victims of war...
. In a January 2002 memorandum to the president, then-White House Counsel
White House Counsel
The White House Counsel is a staff appointee of the President of the United States.-Role:The Counsel's role is to advise the President on all legal issues concerning the President and the White House...
Alberto Gonzales
Alberto Gonzales
Alberto R. Gonzales was the 80th Attorney General of the United States. Gonzales was appointed to the post in February 2005 by President George W. Bush. Gonzales was the first Hispanic Attorney General in U.S. history and the highest-ranking Hispanic government official ever...
authored a controversial memo that explored whether Article III of the Geneva Convention applied to Al Qaeda and Taliban fighters captured in Afghanistan and held in detention facilities around the world, including Camp X-Ray
Camp X-Ray
Camp X-Ray was a temporary detention facility at the Guantanamo Bay detention camp of Joint Task Force Guantanamo on the U.S. Naval Base in Guantánamo Bay, Cuba.The first twenty detainees arrived at Guantanamo on January 11, 2002....
in Guantanamo Bay, Cuba
Cuba
The Republic of Cuba is an island nation in the Caribbean. The nation of Cuba consists of the main island of Cuba, the Isla de la Juventud, and several archipelagos. Havana is the largest city in Cuba and the country's capital. Santiago de Cuba is the second largest city...
. 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.
The adoption of the Military Commissions Act of 2006
Military Commissions Act of 2006
The United States Military Commissions Act of 2006, also known as HR-6166, was an Act of Congress signed by President George W. Bush on October 17, 2006. Drafted in the wake of the Supreme Court's decision on Hamdan v...
, defined in Section 6 of the act grave abuses of Common Article 3 to only include torture
Torture
Torture is the act of inflicting severe pain as a means of punishment, revenge, forcing information or a confession, or simply as an act of cruelty. Throughout history, torture has often been used as a method of political re-education, interrogation, punishment, and coercion...
, cruel or inhumane treatment, murder
Murder
Murder is the unlawful killing, with malice aforethought, of another human being, and generally this state of mind distinguishes murder from other forms of unlawful homicide...
, mutilation
Mutilation
Mutilation or maiming is an act of physical injury that degrades the appearance or function of any living body, usually without causing death.- Usage :...
or maiming, intentionally causing serious bodily harm, rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
, sexual assault
Sexual assault
Sexual assault is an assault of a sexual nature on another person, or any sexual act committed without consent. Although sexual assaults most frequently are by a man on a woman, it may involve any combination of two or more men, women and children....
or abuse, and the taking of hostages
Hostage
A hostage is a person or entity which is held by a captor. The original definition meant that this was handed over by one of two belligerent parties to the other or seized as security for the carrying out of an agreement, or as a preventive measure against certain acts of war...
, thereby limiting the scope of the original law.
See also
- Command responsibilityCommand responsibilityCommand responsibility, sometimes referred to as the Yamashita standard or the Medina standard, and also known as superior responsibility, is the doctrine of hierarchical accountability in cases of war crimes....
- Nuremberg TrialsNuremberg TrialsThe Nuremberg Trials were a series of military tribunals, held by the victorious Allied forces of World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany....
- War crimes committed by the United StatesWar crimes committed by the United StatesThe United States of America has been accused of committing war crimes at various points throughout its history. Most, but not all contemporary war crimes are defined by the International Criminal Court , the Geneva Conventions, and the associated laws of war under international law...
- Abu Ghraib torture and prisoner abuseAbu Ghraib torture and prisoner abuseBeginning in 2004, human rights violations in the form of physical, psychological, and sexual abuse, including torture, rape, sodomy, and homicide of prisoners held in the Abu Ghraib prison in Iraq came to public attention...
- Human rights in the United StatesHuman rights in the United StatesHuman rights in the United States are legally protected by the Constitution of the United States and amendments, conferred by treaty, and enacted legislatively through Congress, state legislatures, and plebiscites...
- The Prosecution of George W. Bush for MurderThe Prosecution of George W. Bush for MurderThe Prosecution of George W. Bush for Murder is a 2008 book by former prosecutor Vincent Bugliosi. It argues that George W. Bush took the United States into the invasion of Iraq under false pretenses and should be tried for murder for the deaths of American soldiers in Iraq...
- The International Criminal Court and the 2003 invasion of IraqThe International Criminal Court and the 2003 invasion of IraqThe Prosecutor of the International Criminal Court reported in February 2006 that he had received 240 communications in connection with the invasion of Iraq in March 2003 which alleged that various war crimes had been committed. The overwhelming majority of these communications came from...
- United States and the International Criminal CourtUnited States and the International Criminal CourtThe United States is not a member of the International Criminal Court . The ICC is a permanent international criminal court, founded in 2002 by the Rome Statute to "bring to justice the perpetrators of the worst crimes known to humankind - war crimes, crimes against humanity, and genocide",...
- Vietnam War Crimes Working Group FilesVietnam War Crimes Working Group FilesThe Vietnam War Crimes Working Group Files is a collection of documents compiled by Pentagon in the early 1970s during Army investigations into atrocities by U.S. forces during the Vietnam War. They detail 320 alleged incidents that were substantiated by United States Army investigators — not...
External links
- Federal Law 18 USC Sec. 2441 known as the "War Crimes Act"
- US Code, Part I, Title 18, Chapter 118, section 2441
- Human Rights First; Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality, August 2007