Wednesday, April 15, 2009

Amending the Amendments: The War Crimes Act of 1996

The Obama administration is receiving no end of advice about how to undo the more problematic policies of the Bush Administration’s Global War on Terror. One item in need of attention is the War Crimes Act of 1996 (“WCA”), 18 U.S.C. § 2441, which was passed with overwhelming congressional support during the Clinton Administration. In subsequently enacting the Military Commission Act of 2006 (“MCA”) during the Bush Administration, however, Congress amended the WCA in significant yet subtle ways that brought the United States out of compliance with its treaty commitments under the 1949 Geneva Conventions and radically reduced the United States’ ability to prosecute war criminals. The Obama Administration should sponsor legislation that would undo many of the changes wrought by the MCA. In addition, the Obama Administration should more fully implement the principle of universal jurisdiction over war crimes as called for by the now universal Geneva Conventions.
The WCA originally read as follows:

(a) Offense. Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to the victim, shall also be subject to the penalty of death.

(b) Circumstances. The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).

(c) Definition. As used in this section the term “war crime” means any conduct—

(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, or any protocol to such convention to which the United States is a party;

(2) prohibited by Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;

(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or

(4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.

This original legislation was notable in several respects. Of most relevance here:
First: It incorporated by reference the ”grave breaches” penal regimes of the 1949 Geneva Conventions (see Articles 130 of GC III and 147 of GC IV). Grave breaches of the Conventions are those violations that give rise to individual criminal responsibility when committed against a protected person (i.e., a civilian or a prisoner of war) within the context of an international armed conflict. These include:
  • wilful killing,
  • torture or inhuman treatment, including biological experiments,
  • wilfully causing great suffering or serious injury to body or health,
  • unlawful deportation or transfer or unlawful confinement of a civilian,
  • compelling a protected person to serve in the forces of a hostile Power, or
  • wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention,
  • taking of civilian hostages and extensive destruction and appropriation of civilian property, not justified by military necessity and carried out unlawfully and wantonly.
Second: The WCA criminalized certain violations—including killing or wounding treacherously, employing weapons that cause unnecessary suffering, bombarding undefended towns, and pillage—of the Fourth Hague Convention of 1907, which applies to international armed conflicts and does not by its own terms contain a penal regime.
Third: It also criminalized violations of common Article 3 (“CA 3”), which is applicable in non-international armed conflicts. CA 3 provides a set of basic prohibitions for such conflicts:
(a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture;
(b) taking of hostages;
(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
Like the 1907 Hague Convention, common Article 3 does not contain a penal regime; however, the international tribunals have confirmed that violations of these provisions give rise to individual criminal responsibility as a matter of customary international law. These rulings were ratified by states in the form of Article 8 of the ICC Statute, which identifies these violations as within the subject matter jurisdiction of the ICC.
Fourth: While the WCA went farther than existing treaty obligations by penalizing violations of the 1907 Hague Convention and CA3, it did not fully implement the grave breaches regimes as set forth in Articles 129 of GC III and 146 of CH IV. Those provisions oblige all signatories to enact legislation enabling them to prosecute persons accused of committing grave breaches regardless of the perpetrator's nationality, the nationality of the victim, or the place of commission:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

By contrast, the WCA applies only to U.S. citizens as perpetrators or victims. To be sure, the Geneva Conventions also allow state parties to extradite offenders found in their midst:
It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case.

Read together, however, these provisions suggest that state parties must have the ability to prosecute pursuant to universal jurisdiction in the event that there is no extradition option.
Fifth: The WCA contained placeholders at (c)(1) and (c)(3) for the Protocols to the Geneva Conventions: Protocol I—which elaborates upon the category of international armed conflicts and the rules governing the means and methods of warfare, relaxes some of the requirements for privileged combatant status, and contains an expanded list of grave breaches, and Protocol II—which develops and supplements CA3 in non-international armed conflicts, but does not contain a penal regime. To date, the U.S. has ratified neither of these protocols.
So, in some respects, the original WCA was consistent with U.S. treaty obligations; in other ways, it went farther than those obligations; and—with respect to the bases for exercising jurisdiction—in still other ways it did not fully implement those obligations.
Congress drafted the MCA in the wake of the Supreme Court’s decision in Hamdan v. Rumsfeld, which held that common Article 3 at a minimum applied to the “Global War on Terrorism” being waged against the Taliban and Al Qaeda. The MCA left intact sub-sections (1), (2), and (4) penalizing the grave breaches of the Conventions, and certain provisions of the Hague and Mines Conventions. It significantly altered, however, the ability of the United States to prosecute violations of CA3—the only provision applicable during non-international armed conflicts, such as the Supreme Court determined existed in our conflict against the Taliban and Al Qaeda.
First: The MCA bifurcated CA3's prohibitions into two-tiers and rendered only a subset prosecutable under the WCA:
(3) which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character…
The concept of “grave breaches” of CA3 has no currency in international humanitarian law or the treaty; all violations of CA3 are equally prohibited.
Second: In designating only certain violations of CA3 as “grave breaches” in sub-section (d), the MCA eliminated the ability of the United States to prosecute two violations of CA3:

(c) outrages upon personal dignity, in particular humiliating and degrading treatment;
(d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the
judicial guarantees which are recognized as indispensable by civilized peoples.

Thus, conduct that does not rise to the level of cruel treatment or torture but is nonetheless degrading, humiliating, or an outrage upon dignity no longer constitutes a war crime, even though such conduct is equally prohibited by CA3. Likewise, violations of core due process rights are no longer criminal.
The following violation of CA3 remained prosecutable under the WCA: torture, cruel or inhuman treatment, performing biological experiments, murder, mutilation, maiming, intentionally causing serious bodily injury, and hostage taking. In addition, and on a positive note, the new legislation specifically identifies rape and other forms of sexual assault or abuse as “grave breaches” of CA3 so that they can be prosecuted directly rather than under the rubrics of torture, cruel treatment, or degrading treatment.
Third: Besides the specific intent elements applicable to the intent to inflict the pain or suffering and the intent to obtain a confession or information, the MCA defined the conduct that constitutes “cruel treatment” virtually identically to that which constitutes “torture,” thus shortening the spectrum of mistreatment that may be prosecuted in U.S. courts even further.

(A) Torture. The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimidation, coercion, or any reason based on discrimination of any kind.

(B) Cruel or inhuman treatment. The act of a person who commits, or conspires or attempts to commit, an act intended to inflict severe or serious physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions), including serious physical abuse, upon another within his custody or control.

Sub-section (B) does add the modifier "or severe," perhaps suggesting that conduct that does not rise to the level of torture might be prosecutable as cruel treatment. The term “severe mental pain or suffering,” however, is later defined at sub-sections (2)(A) and (2)(E) with reference to 18 U.S.C. § 2340, the U.S. torture statute, confirming that only psychological abuse that rises to the level of torture constitutes a war crime when committed in a non-international armed conflict. Likewise, "serious physical pain or suffering" is defined at sub-section (2)(D) with reference to conduct that would normally be considered to rise to the level of torture:

(i) a substantial risk of death;
(ii) extreme physical pain;
(iii) a burn or physical disfigurement of a serious nature (other than cuts, abrasions,
or bruises); or
(iv) significant loss or impairment of the function of a bodily member, organ, or mental faculty...
Both torture and cruel treatment require that the victim be in the perpetrator's custody at the time of the abuse, thus seeming to eliminate the possibility of prosecuting someone for rendering, or conspiring to render, an individual somewhere else where the person will be tortured.
Fifth: The MCA removed the placeholder reference to Protocol II in (c) and also added language that crimes under that provision could only be prosecuted if they were committed not only "in the context of" a non-international armed conflict, but also "in association with" such a conflict. This language—which seems to come from the ICC's Elements of Crimes—presumably tightens the nexus that must be shown between the acts in question and the prevailing armed conflict.
In considering amendments to the WCA, the Obama Administration should focus on the following, at a minimum:
  1. Render all violations of CA3 equally prosecutable;
  2. Include clarificatory language that rape and other acts of sexual assault or violence can constitute torture or cruel treatment and thus may be prosecutable under the provision incorporating CA3 into the WCA;
  3. Re-define “cruel treatment” so that it reaches more conduct that does not rise to the level of torture to lengthen the spectrum of prosecutable conduct as appropriate.
  4. Ensure that all definitions of constitutive war crimes are consistent with international criminal law definitions.

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