The Law of the Land (Still) Includes the War Crimes Act

The Bush Administration's Attempt to Nullify the War Crimes Act

The paper trail of internal memos which led the Bush Administration to declare that the War Crimes Act had no binding effect on the president because it would interfere with his Commander in Chief powers to determine "how best to deploy troops in the field" and that U.S. soldiers could not be tried for violations of the laws of war in Afghanistan because such international laws have "no binding legal effect on either the President or the military" is well documented. See, e.g., Memos Reveal War Crimes Warnings (Newsweek) and The Roots of Torture (Newsweek)

Congress Helps (Despite Stubborn Opposition from the Bush Administration)

Section 1004 of The Detainee Treatment Act of 2005 provides a defense in any civil action or criminal prosecution for detainee treatment when the US "officer or employee did not know that the practices were unlawful and a person of ordinary sense and understanding would not know that the practices were unlawful." The Act passed the House by a vote of 308-106, 2 present and the Senate by a vote of 93-0. Note how the Act allows ignorance of the law to be a defense and that it covers US military officers who are expected to know and adhere to military and international codes of conduct.

When the Supreme Court of the United States decided in Hamdan v. Rumsfeld that the Bush administration's policy of not honoring the Geneva Conventions was illegal, and that prisoners in the "War on Terror" were entitled to such protections, the Court opened the door for the criminal prosecution of political appointees, CIA officers and military personnel under the War Crimes Act. At issue is government authorized interrogations using methods that U.S. military lawyers testified at a July 13 hearing of the Senate Armed Services Committee were in violation of Common Article 3 of the Geneva Conventions (Treatment of Prisoners of War).

Concern over the applicability of the Act made the front page of the Washington Post immediately after the Hamdan decision was announced. R. Jeffrey Smith, Detainee Abuse Charges Feared: Shield Sought From '96 War Crimes Act, Washington Post, July 28, 2006 at Page A01. Now, the Bush Administration is reportedly circulating draft amendments to the Act that would significantly narrow the scope of potential criminal prosecutions to 10 specific categories of illegal acts against detainees during a war, including torture, murder, rape and hostage-taking.

This chain of events calls for publication of a compilation of all relevant legal materials so an interested public can be a well-informed public.

U.S. War Crimes Act, 8 U.S.C. §  2441 : Congressional Hearings, Debates

War Crimes Act

18 U.S.C. § 2441. War crimes ...

(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; ...

War Crimes Act of 1996, Pub. L. 104-192 {3 kb txt; 110 kb pdf} {SuDoc: AE 2.110:104/192}, 110 Stat. 2104 (August 21 1996), as amended, 18 U.S.C. § 2441.

Legislative History of the War Crimes Act of 1995, Publ L. 104-192:

House Hearing: War Crimes Act of 1995: Hearing ... on H.R. 2587 (U.S. Congress 104- 2, House Judiciary Committee, Subcommittee on Immigration and Claims, Hearing, June 12 1996, Serial No. 81, 4+88 pages) {SuDoc: Y 4.J 89/1:104/81, CIS: 96 H521-68, LCCN: 97110474, DL, LFDL, WorldCat}.

Written witness statements: Michael Matheson (Principal Deputy Legal Advisor, U.S. Department of State), Monroe Leigh (Legal Adviser, Department of State, 1975-1977), Robinson O. Everett (Professor, Duke University School of Law, formerly Senior Judge, U.S. Court of Appeals for the Armed Services, 1975-1977), John H. McNeill (Senior Deputy General Counsel, International Affairs & Intelligence, Office of General Counsel, Department of Defense), Mark S. Zaid (Law Office of Mark S. Zaid) {83 kb pdf}, Alfred P. Rubin (Fletcher School of Law and Diplomacy, Tufts University).

House report: War Crimes Act of 1996: Report (to accompany H.R. 3680) {51 kb txt; 194 kb pdf} (U.S. Congress 104-2, House Report No. 104-698, Judiciary Committee, July 24 1996, 16 pages) {SuDoc: Y 1.1/8:104-698, CIS: 96 H523-28, Serial Set: 14376, DL, LFDL, WorldCat}.

House adopted: “War Crimes Act of 1996” {11 kb txt}, 142 Congressional Record H8620-H8621 {29 kb pdf} (July 29 1996, daily edition 142:113, U.S. Congress 104 -2) {SuDoc: X/A.104/2:142/113}.

Senate adopted: “War Crimes Act of 1996” {11 kb txt}, 142 Congressional Record S9648-S9649 {125 kb pdf} (August 2 1996, daily edition 142:117, U.S. Congress 104-2) {SuDoc: X/A.104/2:142/117, ISSN: 0363-7239, LCCN: 80646573, OCLC: 02437919, GPOCat, LL: paper, microfiche, DL, WorldCat}.

President signed: William J. Clinton (U.S. President, Jan. 20 1993-2001 Jan. 20), “Statement on Signing the War Crimes Act of 1996” (White House, August 21 1996), 32:34 Weekly Compilation of Presidential Documents, page 1482 {4 kb txt, 11 kb pdf} {SuDoc: AE 2.109:32/34, ISSN: 0511-4187, LCCN: 65009929, DL, LFDL, WorldCat}; Public Papers of the Presidents of the United States: William J. Clinton, 1996, pages 1323-1324 (book 2) {4 kb txt, 89 kb pdf} {SuDoc: AE 2.114:996/BK.2, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}.

Legislative History of the Expanded War Crimes Act of 1997, Pub. L. 105-118:

Expanded War Crimes Act of 1997, § 583 of Pub. L. 105-118 {158 kb txt; 240 kb pdf} {SuDoc: AE 2.110:105/118}, 111 Stat. 2386 (Nov. 26 1997), 18 U.S.C. § 2441.

House report: Expanded War Crimes Act of 1997: Report ... (to accompany H.R. 1348) {37 kb txt, 148 kb pdf} (U.S. Congress 105-1, House Report No. 105-204, Judiciary Committee, July 25 1997, 12 pages) {SuDoc: Y 1.1/8:105-204, Serial Set: 14448, CIS: 97 H523-30, DL, LFDL, WorldCat} (“No hearings were held on H.R. 1348.”).

House adopted: “Expanded War Crimes Act of 1997,” 143 Congressional Record H5865-H5868 {29 kb pdf} (debate) {20 kb txt} (July 28 1997, daily edition 143:108) {SuDoc: X/A.105/1:143/108}, H5984-H5985 {27 kb pdf} (vote) {9 kb txt} (July 29 1997, daily edition 143:109, U.S. Congress 105-1) {SuDoc: X/A.105/1:143/109, ISSN: 0363-7239, LCCN: 80646573, OCLC: 02437919, GPOCat, LL: paper, microfiche, DL, WorldCat}.

House roll call vote 105-1:340 (391/32/11) (July 29 1997, 4:53 p.m.).

House Conference Report: Making Appropriations for Foreign Operations ... and for Other Purposes: Conference report (to accompany H.R. 2159) {140 kb txt, 361 kb pdf} (U.S. Congress 105-1, House Report No. 105-401, Conference Committee, Nov. 12 1997, 101 pages) {SuDoc: Y 1.1/8:105-401, Serial Set: 14455, CIS: 97 H183-28, DL, LFDL, WorldCat}.

President signed: William J. Clinton (U.S. President, Jan. 20 1993-2001 Jan. 20), “Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998” (White House, Nov. 26 1997), 33:48 Weekly Compilation of Presidential Documents, page 1925 {4 kb txt, 11 kb pdf} {SuDoc: AE 2.109:33/48, ISSN: 0511-4187, LCCN: 65009929, DL, LFDL, WorldCat}; Public Papers of the Presidents of the United States: William J. Clinton, 1997, pages 1665-1666 (book 2) {5 kb txt, 28 kb pdf} {SuDoc: AE 2.114:997/BK.2, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}.

Ratification of the Hague Convention

Hague Conventions

{copy, copy, copy, Google}

• Hague-4 Land {copy, copy}: Convention respecting the Laws and Customs of War on Land (Annex: “Regulations concerning the Laws and Customs of War on Land”) (The Hague, Oct. 18 1907, Jan. 26 1910) {status}, U.S./U.K. ratified, Nov. 27 1909, 36 Stat. 2277.

Ratification of the Geneva Conventions

Geneva Conventions

{copy, copy} {status: 183 kb pdf}

• Geneva-1 Land {copy, copy}: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, August 12 1949, October 21 1950), 75 U.N.T.S. 31 (31 pages), U.S. ratified August 2 1955, effective February 2 1956, 213 U.N.T.S. 378 {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}.

• Geneva-2 Sea {copy, copy}: Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Geneva, August 12 1949, October 21 1950), 75 U.N.T.S. 85 (29 pages), U.S. ratified August 2 1955, effective February 2 1956, 213 U.N.T.S. 382.

• Geneva-3 POWs {copy, copy}: Geneva Convention relative to the Treatment of Prisoners of War (Geneva, August 12 1949, October 21 1950), 75 U.N.T.S. 135 (80 pages), U.S. ratified August 2 1955, effective February 2 1956, 213 U.N.T.S. 383.

• Geneva-4 Civilians {copy, copy}: Geneva Convention relative to the Protection of Civilian Persons in Time of War (Geneva, August 12 1949, October 21 1950), 75 U.N.T.S. 287 (70 pages), U.S. ratified August 2 1955, effective February 2 1956, 213 U.N.T.S. 384.

President transmitted: Geneva Conventions for the Protection of War Victims: “Message from the President of the United States transmitting copies of the Geneva conventions for the protection of war victims” (U.S. Congress 82-1, Senate Executive Document No. 82/1-D-G (?), April 25 1951, Senate Foreign Relations Committee, 3+255 pages) {SuDoc: ???, Serial Set: omitted} {CIS microfiche: Senate Executive Documents and Reports: Covering Documents and Reports Not Printed in the U.S. Serial Set, 1817-1969, OCLC: 18187358, ditto, LCCN: 90956089, WorldCat}.

Senate hearing: Geneva Conventions for the Protection of War Victims: “Hearing ... on Executives D, E, F, and G, 82d Congress, 1st Session” (U.S. Congress 84-1, Senate Foreign Relations Committee, Hearing, June 3 1955, 3+68 pages) {SuDoc: Y 4.F 76/2:G 28/2, LCCN: 55061447} {CIS: (84) S1131-6 (Greenwood Press Group 3), source copy: Senate Library, Hearings, volume 1131 tab 6, 84th Congress, 1955-1956} {CIS U.S. Congressional Committee Hearings on Microfiche (1833-1969) (details), OCLC: 38608803, ditto, ditto, LCCN: 91955280, WorldCat (indexes)}.

Senate committee markup: Geneva Conventions for the Protection of War Victims (U.S. Congress 84-1, Senate Foreign Relations Committee, business meeting, executive session, June 9 1955, transcript) {CIS: (84) SFo-T.40} {CIS microfiche: Unpublished U.S. Senate Committee Hearings (1823-1976), OCLC: 34042124, ditto, LCCN: 88891043, WorldCat}:

“Thursday, June 9, 1955. ...

The Committee met, pursuant to notice, at 11:40 o'clock a.m. in the Foreign Relations Committee Room, U.S. Capitol Building, Senator Walter F. George (chairman) presiding.

Present: Senator George (chairman), Sparkman, Humphrey, Mansfield, Smith of New Jersey, and Aiken.

Also present: Dr. Wilcox, Mr. O'Day, Mr. Freeman, Mr. Marcy, and Mr. Holt, of the Committee Staff. ... {p.7}

Dr. Wilcox. Mr. Chairman, ... I should say that there were at the hearings several questions raised by Senator Hickenlooper and Senator Capehart or Mansfield particularly as to whether or not this convention would expand the penal authority of the Federal Government and whether the treaty power was expanded in any way to cover areas that perhaps could not be covered by the legislative power of the Federal Government alone, and the executive branch was asked to prepare a statement on that point, and we have here — it just came — a letter from Mr. Rankin, the Assistant Attorney General, which covers those questions.

I do not know whether the Committee would like to have that read into the record, but I think that this was intended to reply to the questions.

The Chairman. I think it should be put in the record.

Senator Sparkman. In the report.

Senator Humphrey. It ought to be in our testimony as if read.

Dr. Wilcox. One thing that is in the letter is a statement to the effect that a review of existing legislation reveals no need to enact further legislation to provide effective penal sanctions for those violations of the Geneva Conventions which are designated as grave breaches.

In other words, the department feels that existing legislation on the books will cover any case that might arise under the con- {p.8} vention.Office of Legal Counsel, U.S. Justice Department), letter dated June 7 1955 to Walter F. George (Chairman, Senate Foreign Relations Committee), printed in the Senate hearing (cited above) at pages 58-59.  –CJHjr

The Chairman. So far as we are concerned.

(The letter referred to is as follows:)

Committee insert”

J. Lee Rankin (Assistant Attorney General, Office of Legal Counsel, U.S. Justice Department), letter dated June 7 1955 to Walter F. George (Chairman, Senate Foreign Relations Committee), printed in the Senate hearing (cited above) at pages 58-59.  –CJHjr

Senate report: Geneva Conventions for the Protection of War Victims: “Report ... on Executives D, E, F, and G, 82d Congress, 1st Session” (U.S. Congress 84-1, Senate Executive Report No. 84-9, Foreign Relations Committee, 1955, 3+32 pages) {SuDoc: Y 1.84/1:RP.9, Serial Set: omitted, LCCN: 55061980} {CIS microfiche: Senate Executive Documents and Reports: Covering Documents and Reports Not Printed in the U.S. Serial Set, 1817-1969, OCLC: 18187358, ditto, LCCN: 90956089, WorldCat}, reprinted in 101 Congressional Record 9958-9973, at 9962 -9972 (cited next).

Senate debate: “Geneva Conventions for the Protection of War Victims,” 101 Congressional Record 9958-9973 (July 6 1955, permanent edition, U.S. Congress 84-1) {SuDoc: X.84/1:101/PT.8, ISSN: 0363-7239, LCCN: 80646573, DL, LFDL, WorldCat}.

Senate consent: Senate roll call vote: 77/0/19, the unanimous consent of all Senators present. 101 Congressional Record 9958-9973, at 9972-9973 (cited above).

Ratification:

“With the advice and consent of the United States Senate, on July 14, 1955 I ratified, on behalf of the Government of the United States, the Geneva Conventions of 1949 for the protection of war victims. Instruments of ratification have been transmitted to the American Embassy at Bern for deposit with the Swiss Federal Council.”

Dwight David Eisenhower (U.S. President, 20 Jan. 1953-1961 Jan. 20), letter dated August 1 1955 to E. Roland Harriman (Chairman, American National Red Cross), The Papers of Dwight David Eisenhower, volume 16, document 1536 (Johns Hopkins University Press, July 1996, editors: Louis Galambos, Daun Van Ee) {ISBN: 0801847524, LCCN: 65027672, WorldCat}.

The Swiss Federal Council (depositary of the Geneva Conventions) said, they received the U.S. instruments of ratification on August 2 1955, effective February 2 1956. 213 U.N.T.S. 378.

Protocols to the Geneva Conventions

{copy, copy} {status: 183 kb pdf}

• Geneva Protocol-1 Targeting+ {copy, copy}: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (Geneva, June 8 1977, December 7 1978), 1125 U.N.T.S. 31 (151 pages) {U.N. Doc.: ST/LEG(05)/U5, ISSN: 0379-8267, LCCN: 48022417, WorldCat}.

• Geneva Protocol-2 Civil War {copy, copy}: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II) (Geneva, June 8 1977, December 7 1978), 1125 U.N.T.S. 609 (42 pages).

President transmitted: Ronald Reagan (U.S. President, Jan. 20 1981-1989 Jan. 20), “Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions” {copy} (White House, January 29 1987). Public Papers of the Presidents of the United States: Ronald Reagan, 1987 (book 1) {SuDoc: AE 2.114:987/BK.1, ISSN: 0079-7626, LCCN: 58061050, DL, LFDL, WorldCat}.

Senate treaty document: Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts: Message from the President ... (U.S. Congress 100-1, Senate Treaty Document No. 100-2, January 29 1987, Senate Foreign Relations Committee, 10+15 pages) {SuDoc: Y 1.1/4:100-2, Serial Set: 13729, DL} {CIS: 87 S385-2} {CIS Microfiche Library, OCLC: 11730653, ditto, ditto, LCCN: 90655075, WorldCat}, reprinted 26 I.L.M. 561 (March 1987) {ISSN: 0020-7829, LCCN: 67005225, WorldCat} {Lexis: 26 I.L.M. 561}. U.S. Senate Treaty No. 100-2.

Editor's Note: Charles Judson Harwood Jr. published the above unbelievably well hyper-linked compilation on January 30 2005 and has updated it as needed. He writes: "This document is not copyrighted and may be freely copied." For my part, I have modify the HTML code to make it TypePad friendly, redesigned certain features of the display and contributed the introductory paragraphs and sidebar.

Today's blog includes a post which identifies several recent and forthcoming works on war crimes. I also recommend The Crimes of War Project website. [JH]