War Crimes Act of 1996

1. War Crimes Act of 1996 Ha Vu Alexis Zeiden PUBP 710 March 3, 2008

2. Agenda • Overview of provisions • Legislative history • Cases • Overview of problems • Particular issue: Application to Al Qaeda • Pros and cons • Policy and Legislative Proposal • Rationale and Feasibility

3. Overview of the War Crimes Act • Applies to anyone who commits a war crime: criminals or victims areU.S. citizens or Armed Forces • Penalty could be imprisonment or even death • Offenses can happen both inside or outside the U.S

4. Overview of the War Crimes Act War Crimes Act Defined • Grave breach of the 1949 Geneva Conventions • Common Article 3 of the 1949 Geneva Conventions • Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV • Provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended in 1996

5. Common Article 3 ofthe 1949 Geneva Conventions • Cruel treatment and torture • Outrages upon personal dignity, in particular humiliating and degrading treatment • Prosecution without regularly constituted court • Specifically refers to armed conflict not of an ‘international character’

6. The Legislative History • Purpose • To implement the 1949 Geneva Conventions’ penal requirements • Why did the US need domestic law after already having signed the treaty? Why until 1996? • Passage • Overwhelming majorities by the Congress and signed into law by President Clinton

7. Leading CasesDecided Under the War Crimes Act • None! • No one has been proscuted under the War Crimes Act • However, Hamdan v. Rumsfeld heavily influenced the Act • Made Article 3 applicable to Al Qaeda

8. Issue 1: Application of Law • Bush Administration argued that the Act was inapplicable to the conflict with Al Qaeda • Common Article 3 of the Geneva Convention

9. Issue 2: Scope of the Law • No one has yet to prosecuted under the War Crimes Act • The Act was intended to protect individuals from a ‘grave breach’ of the Geneva Convention • What constitutes • “cruel treatment” • “torture” • “outrages upon personal dignity”

10. Issue 3: Subsequent Legislation • Detainee Treatment Act of 2005 • Helps to define appropriate treatment of detainees • Provides formal standards for interrogation • Removes the federal courts jurisdiction over detainees wishing to challenge their imprisonment • Military Commissions Act of 2006 (MCA) • Passed in response to Hamdan v. Rumsfeld • Criminalizes specific violations under Common Article 3 • Applied retroactively

11. How does the War Crimes Act fit into a Post 9/11 World? • The Supreme Court ruled against the Bush Administration to say that Al Qaeda is covered under Common Article 3 of the Geneva Convention • The MCA amends the War Crimes Act by defining which violations under Common Article 3 are covered

12. In Support of Application of War Crimes Act to Al Qaeda • Supreme Courts decision in Hamdan • International Committee of the Red Cross • Seeks to identify issues in international humanitarian law (IHL) • Fully supports all decrees of the Geneva Convention • Amnesty International • US is engaging in ‘systematic violations of international law’ • Sharply against MCA

13. In Opposition of Application of War Crimes Act to Al Qaeda • The Bush Administration has long stated that they do not believe that Common Article 3 of the Geneva Convention applies to Al Qaeda and Al Qaeda detainees because they are a non-state actor of an international nature.

14. Competing Statutes • Geneva Conventions • International Treaty • Signed in 1949 • War Crime Act • United States Federal Law • Passed in 1996 • Military Commissions • United States Federal Law • Passed in 2006

15. Competing Statutes • War Crimes Act complies with Article 3 of the Geneva Convention • MCA excludes “enemy combatant” of Article 3 (inconsistent with Geneva Convention and War Crimes Act)

16. Does MCA Overrule War Crimes Act and Geneva Convention Articles? • Subsequent supreme law of the land can overwrite prior law when there is an inconsistence • However, this is not yet known • Court has authority to interpret • Scenario 1: The Court may rule like in Hamdan case Article 3 applies to everyone • Scenario 2: The Court may rule MCA is lawful and overwrites prior inconsistent law • Article 3 does not apply to “enemy combatant”

17. Policy Proposal • The War Crimes Act of 1996 should be amended to • Further define when and how Article 3 of the Geneva Convention should be applied • Overwrite portions of the Military Commissions Act which violate customary international law

18. Rationale for Drafting the War Crimes Act of 2008 • Abiding by US Treaty Obligations • International legal obligation • Customary international law • International principle of Reciprocity • Information Gathering • Avoid wrongful prosecution • Avoid receiving bad information • U.S. credibility • Unilateral vs. multilateral methods

19. Feasibility to Create the War Crimes Act of 2008 • Judicial • Supreme Court’s decision in Hamdan v. Rumsfeld • Legislative • MCA just adopted by the US Congress, so it will not be easily overwritten • Passed very quickly, some may already be rethinking • Executive • A new administration could lead to new policy goals

20. Sources • Amnesty International. 2005. “Military Commission Act, Turning Bad Policy into Bad Law,” • Council of Foreign Relations. 2005. Detainee Treatment Act of 2005, www.cfr.org/publication/9865/. • Garcia, Michael John. 2007. “The War Crimes Act: Current Issues,” CRS Report for Congress, July 2007. • Holtzman, Elizabeth. 2005. “Torture and Accountability,” The Nation, June 28, 2005 (July 18, 2005 issue). • International Committee of the Red Cross.2007. “International Humanitarian Law and The Challenges of Contemporary Armed Conflicts,” October 2007, www.icrc.org/Web/eng/siteeng0.nsf/htmlall/ihl-30-international-conference-101207/$File/30IC_8-4_IHLchallenges_Report&Annexes_ENG_FINAL.pdf.

21. Sources • “Is George Bush Guilty of War Crimes...and Who Cares?” The Hufftington Post, August 7, 2006. • Mariner, Joanne. “Private Contractors Who Torture,” UN Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field • One Hundred Ninth Congress of the United States of America. 2006. Military Commissions Act of 2006, S.3930, January 3. • Smith, Jefferey. 2006. “War Crimes Act Changes Would Reduce Threat of Prosecution,” Washington Post, August 9, 2006, Page A01. • Supreme Court of the United States, Hamdan v. Rumsfeld, Secretary of Defense et al., Argued March 28, 2006--Decided June 29, 2006. No. 05-184. 2006. • Van Bergen, Jennifer. 2005. “The New CIA Gulag of Secret Foreign Prisoners,” Nov. 2005. • War Crimes Act of 1996. U.S. Code Collection, Title 18, Part I, Chapter 118, § 2441.