The War Crimes Act of 1996 is a law that defines a war crime to include a " grave breach of the

Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conve ...

", specifically noting that "grave breach" should have the meaning defined in any convention (related to the

laws of war The law of war is the component of international law that regulates the conditions for initiating war (''jus ad bellum'') and the conduct of warring parties (''jus in bello''). Laws of war define sovereignty and nationhood, states and territor ...

) to which the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territori ...

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 Torture is the deliberate infliction of severe pain or suffering on a person for reasons such as punishment, extracting a confession, interrogational torture, interrogation for information, or intimidating third parties. definitions of tortur ...

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 United States Armed Forces are the military forces of the United States. The armed forces consists of six service branches: the Army, Marine Corps, Navy, Air Force, Space Force, and Coast Guard. The president of the United States is the ...

. The penalty may be life imprisonment or

death Death is the irreversible cessation of all biological functions that sustain an organism. For organisms with a brain, death can also be defined as the irreversible cessation of functioning of the whole brain, including brainstem, and brain ...

. The death penalty is only invoked if the conduct resulted in the death of one or more victims. The Act was passed with overwhelming majorities by the

United States Congress The United States Congress is the legislature of the federal government of the United States. It is bicameral, composed of a lower body, the House of Representatives, and an upper body, the Senate. It meets in the U.S. Capitol in Washing ...

and signed into law by

President President most commonly refers to: *President (corporate title) * President (education), a leader of a college or university * President (government title) President may also refer to: Automobiles * Nissan President, a 1966–2010 Japanese ...

Bill Clinton William Jefferson Clinton ( né Blythe III; born August 19, 1946) is an American politician who served as the 42nd president of the United States from 1993 to 2001. He previously served as governor of Arkansas from 1979 to 1981 and agai ...

Legislative history

The law criminalized breaches of the Geneva Conventions so that the United States could prosecute war criminals, specifically

North Vietnam North Vietnam, officially the Democratic Republic of Vietnam (DRV; vi, Việt Nam Dân chủ Cộng hòa), was a socialist state supported by the Soviet Union (USSR) and the People's Republic of China (PRC) in Southeast Asia that existed f ...

ese soldiers who imprisoned and tortured U.S. military personnel during the

Vietnam War The Vietnam War (also known by other names) was a conflict in Vietnam, Laos, and Cambodia from 1 November 1955 to the fall of Saigon on 30 April 1975. It was the second of the Indochina Wars and was officially fought between North Vietnam a ...

. The

Department of Defense Department of Defence or Department of Defense may refer to: Current departments of defence * Department of Defence (Australia) * Department of National Defence (Canada) * Department of Defence (Ireland) * Department of National Defense (Philipp ...

"fully support dthe 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. military personnel war crimes as well "because doing so set a high standard for others to follow." The bill passed by

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 (or leave of the senate), is a situation in which no member present objects to a prop ...

in the Senate and by a

voice vote In parliamentary procedure, a voice vote (from the Latin ''viva voce'', meaning "live voice") or acclamation is a voting method in deliberative assemblies (such as legislatures) in which a group vote is taken on a topic or motion by responding vo ...

in the House, showing that it was entirely uncontroversial at the time. Ten years later, the

United States Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...

ruled in ''

Hamdan v. Rumsfeld ''Hamdan v. Rumsfeld'', 548 U.S. 557 (2006), 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 violated both the Uniform Code of Mili ...

'' that

Common Article 3 of the Geneva Conventions upright=1.15, Original document in single pages, 1864 The Geneva Conventions are four treaties, and three additional protocols, that establish international legal standards for humanitarian treatment in war. The singular term ''Geneva Conven ...

applied to the

War on Terrorism The war on terror, officially the Global War on Terrorism (GWOT), is an ongoing international counterterrorism military campaign initiated by the United States following the September 11 attacks. The main targets of the campaign are militant ...

, with the unstated implication that any interrogation technique that violated Common Article 3 constituted war crimes. The possibility that American officials and military personnel 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 The 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. The Act's stated purpose was "to authorize trial by military commission for violations of the law of ...

Potential application

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officials were concerned that they and other U.S. officials could be prosecuted under the War Crimes Act of 1996 for the U.S. treatment of detainees after the

September 11 attacks The September 11 attacks, commonly known as 9/11, were four coordinated suicide terrorist attacks carried out by al-Qaeda against the United States on Tuesday, September 11, 2001. That morning, nineteen terrorists hijacked four commer ...

for violations of the Geneva Conventions. In a January 2002 memorandum to the president, then-

White House Counsel The White House counsel is a senior staff appointee of the president of the United States whose role is to advise the president on all legal issues concerning the president and their administration. The White House counsel also oversees the Of ...

Alberto Gonzales authored a controversial memo that explored whether Common Article 3 of the Geneva Conventions applied to Al Qaeda and

Taliban The Taliban (; ps, طالبان, ṭālibān, lit=students or 'seekers'), which also refers to itself by its state name, the Islamic Emirate of Afghanistan, is a Deobandi Islamic fundamentalist, militant Islamist, jihadist, and Pasht ...

combatants Combatant is the legal status of an individual who has the right to engage in hostilities during an armed conflict. The legal definition of "combatant" is found at article 43(2) of Additional Protocol I (AP1) to the Geneva Conventions of 1949. ...

captured during the

war in Afghanistan War in Afghanistan, Afghan war, or Afghan civil war may refer to: *Conquest of Afghanistan by Alexander the Great (330 BC – 327 BC) * Muslim conquests of Afghanistan (637–709) *Conquest of Afghanistan by the Mongol Empire (13th century), see al ...

and held in detention facilities around the world, including Camp X-Ray in Guantanamo Bay,

Cuba Cuba ( , ), officially the Republic of Cuba ( es, República de Cuba, links=no ), is an island country comprising the island of Cuba, as well as Isla de la Juventud and several minor archipelagos. Cuba is located where the northern Caribbea ...

. The memo made several arguments both for and against providing Common Article 3's protections to Al Qaeda and Taliban combatants. He concluded that Common Article 3 was outdated and ill-suited for dealing with captured Al Qaeda and Taliban combatants. He described as "quaint" the provisions that require providing captured Al Qaeda and Taliban combatants "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 Conventions would be applied. He also argued that undefined language in the Geneva Conventions, 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
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

marked grave abuses of Common Article 3 to only include torture, cruel or inhumane treatment, murder,

mutilation Mutilation or maiming (from the Latin: ''mutilus'') refers to Bodily harm, severe damage to the body that has a ruinous effect on an individual's quality of life. It can also refer to alterations that render something inferior, ugly, dysfunction ...

maiming Mutilation or maiming (from the Latin: ''mutilus'') refers to severe damage to the body that has a ruinous effect on an individual's quality of life. It can also refer to alterations that render something inferior, ugly, dysfunctional, or imper ...

, intentionally causing serious bodily harm,

rape Rape is a type of sexual assault usually involving sexual intercourse or other forms of sexual penetration carried out against a person without their consent. The act may be carried out by physical force, coercion, abuse of authority, or ...

, sexual assault or abuse, and the taking of hostages, thereby limiting the scope of the original law.

References

External links

Federal Law 18 USC Sec. 2441
known as the "War Crimes Act"

* Human Rights First
Leave No Marks: Enhanced Interrogation Techniques and the Risk of Criminality
{{Webarchive, url=https://web.archive.org/web/20160328011851/http://www.humanrightsfirst.org/wp-content/uploads/pdf/07801-etn-leave-no-marks.pdf , date=March 28, 2016 , August 2007 Acts of the 104th United States Congress United States federal defense and national security legislation Law of war War crimes Anti-torture laws National laws incorporating the Geneva Conventions

Legislative history

Potential application

See also

References

External links