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Legislative history, Congressional Record
full-text links, 18 U.S.C. § 2441, as amended.

U.S. War Crimes Act:
Legislative history, hearings, debates


by Charles Judson Harwood Jr.

____________________

latest

R. Jeffrey Smith, “War Crimes Act Changes Would Reduce Threat of Prosecution{pf} (Washington Post, August 9 2006).

Ari Shapiro, “White House Wants to Amend War Crimes Act” (NPR: National Public Radio, All Things Considered, August 9 2006), audio {4:04}.

Larry Cox (Executive Director), “Proposed War Crimes Act Amendments Are Administration's Latest Attempt to Protect Failed War on Terror Policy Architects” {copy} (Amnesty International USA, August 9 2006):

 

“ Since the September 11 attacks, the administration has attempted to immunize its people, from prosecution, for breaching the Geneva Conventions, and other laws through crafty legal interpretations.

Now that the Supreme Court has affirmed {1.4 mb pdf} the rule of law, and the applicability of common Article 3 of the Conventions, President Bush is looking to limit the War Crimes Act through legislation.

The administration should stop seeking escape valves, for those who have committed crimes, and instead use its energy to hold perpetrators accountable.”

Larry Cox (Amnesty International USA, August 9 2006).

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U.S. Code

“ 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; or {this paragraph replaced by the following paragraph, effective October 17 2006}

(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; or

* * *

(d) Common Article 3 Violations.—

(1) Prohibited conduct.—In subsection (c)(3), the term “grave breach of common Article 3” means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows:

* * * ”

War crimes, defined: 18 U.S.C. § 2441(c) (August 21 1996, November 26 1997), as amended by the Military Commissions Act of 2006 (below), Public Law 109-366, § 6 (“Implementation of Treaty Obligations”) (October 17 2006) {fdsys.id, 129kb.txt, purl, 126kb.pdf, purl}, 120 Stat. 2600-2637, at 2632-2635, to be codified at, 18 U.S.C. § 2441. Note: Violations of others of the laws of war are also “war crimes,” but not part of this prosecution regime, in the U.S. federal district courts. They can be prosecuted by the U.S. military, in their military courts. U.S. Attorneys never (federal prosecutors), and the U.S. military rarely, prosecute violent crimes, by the U.S. military, and so endorse violent crime, as a tool of U.S. warfare. This leaves U.S. opponents in continuous peril, against which peril they are entitled to inflict reprisals, as best they’re able.

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War Crimes Act of 1996

citations

War Crimes Act of 1996 (fdsys), “An Act to amend title 18, United States Code, to carry out the international obligations of the United States under the Geneva Conventions to provide criminal penalties for certain war crimes” (104 H.R. 3680), Public Law 104-192, 110 Stat. 2104 (August 21 1996) {fdsys.id, 3kb.txt, 235kb.pdf} {plaw, SuDoc: AE 2.110:104/192} {stat., SuDoc: AE 2.111:116/PT.4}, codified, as amended, at 18 U.S.C. § 2441.

link

House hearing, War Crimes Act of 1995 {243kb.txt, 4.34mb.pdf, source} “Hearing ... on H.R. 2587, War Crimes Act of 1995” (the original, predecessor bill, 104 H.R. 2587) (U.S. Congress 104-2, House Judiciary Committee, Subcommitee on Immigration and Claims, hearing, June 12 1996, 3:17-4:25pm, committee “Serial No. 81”) {SuDoc: Y 4.J 89/1:104/81, CIS: 96 H521-68, GPOcat, paper, microfiche, DL, LCCN: 97110474, OCLC: 35957791, WorldCat}, Lamar Smith (subcommittee chairman), Walter B. Jones Jr. (sponsor), witnesses (written statements): Michael Matheson (Principal Deputy Legal Advisor, U.S. Department of State), Monroe Leigh {634, archive} (Legal Adviser, Department of State, 1975-1977), Robinson O. Everett {635} (Professor, Duke University School of Law, formerly Senior Judge, U.S. Court of Appeals for the Armed Services, 1975-1977), John H. McNeill {636} (Senior Deputy General Counsel, International Affairs & Intelligence, Office of General Counsel, Department of Defense), Mark S. Zaid {83kb.pdf} (Law Office of Mark S. Zaid), Alfred P. Rubin (Fletcher School of Law and Diplomacy, Tufts University).

House report, War Crimes Act of 1996 {pf} {fdsys.id, 51kb.txt, 194kb.pdf}, “Report [to accompany H.R. 3680]” (U.S. Congress 104-2, H. Rept. 104-698, House Judiciary Committee, July 24 1996, 16 pages) {SuDoc: Y 1.1/8:104-698, Serial Set: 14376, CIS: 96 H523-28, GPOcat, paper, microfiche, DL, OCLC: 35598127, WorldCat}.

House adopted, debate and vote, “War Crimes Act of 1996” (104 H.R. 3680), 142 Congressional Record H8620-H8621 {pf} {fdsys.id, 10kb.txt, 29kb.pdf} (July 29 1996, daily edition 142:113, U.S. Congress 104-2) {SuDoc: X/A.104/2:142/113}, a declared two-thirds voice vote, no member requesting a recorded vote, video/text by speaker segment (C-Span Congressional Chronicle, House, July 29 1996, 14:44:06--14:47:27pm) (omits Walter Jones and the declared vote, as a menu item, hence a 5 minute undocumented segment, 14:47:28~14:52:16).

video

Senate adopted, debate and consent, “War Crimes Act of 1996” (104 H.R. 3680), 142 Congressional Record S9648-S9649 {pf} {fdsys.id, 10kb.txt, 102kb.pdf} (August 2 1996, daily edition 142:117, U.S. Congress 104-2) {SuDoc: X/A.104/2:142/117}, unanimous consent, not a vote, video/text by speaker segment (C-Span Congressional Chronicle, Senate, August 2 1996, 20:01:58 -- 20:04:26pm).

video

President signed, William J. Clinton (U.S. President, Jan. 20 1993-2001 Jan. 20), “Statement by the President” (White House, August 21 1996), retitled, “Statement on Signing the War Crimes Act of 1996” (104 H.R. 3680), 32:34 WCPD 1482 {fdsys.id, 4kb.txt, 10kb.pdf} {SuDoc: AE 2.109:32/34}, reprinted, 1996 PPPUS 1323-1324 (book 2) {4kb.txt, 89kb.pdf, ucsb} {SuDoc: AE 2.114:996/BK.2}.

“ Bill Clinton: Today I am pleased to sign into law H.R. 3680, the “War Crimes Act of 1996.” This bill, in furtherance of the Geneva Conventions of 1949, extends U.S. criminal jurisdiction over certain war crimes and provides the United States with clearer authority to prosecute violations of the laws of war. ... It applies to U.S. nationals or members of the Armed Forces who are perpetrators or victims of war crimes. ...

[H]owever, we can and should do even more to strengthen the law in this area. To that end, my Administration is committed to working with the Congress to expand the scope of this legislation.

This expansion should address: (1) war crimes committed by any person who comes within the jurisdiction of the United States courts, including crimes committed by non-U.S. persons against non-U.S. victims; (2) cases involving other serious war crimes not covered by H.R. 3680, such as those prohibited by The Hague Conventions of 1907; and (3) cases involving acts to be made criminal under the recently improved landmines protocol of the Convention on Conventional Weapons.”

 

____________________

Expanded War Crimes Act of 1997

Expanded War Crimes Act of 1997 (fdsys), “An Act to amend title 18, United States Code, relating to war crimes” (105 H.R. 1348), enacted as, § 583 (“War Crimes Prosecution,” 111 Stat. 2436) of the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998 (fdsys) (105 H.R. 2159), Public Law 105-118, 111 Stat. 2386-2439, at 2436 (November 26 1997) {fdsys.id, 173kb.txt, 372kb.pdf} {plaw, SuDoc: AE 2.110:105/118}, codified, as amended, at 18 U.S.C. § 2441 (“War crimes”).

House report, Expanded War Crimes Act of 1997 {pf} {fdsys.id, 36kb.txt, 148kb.pdf}, “Report together with dissenting views [to accompany H.R. 1348]” (U.S. Congress 105-1, H. Rept. 105-204, House Judiciary Committee, July 25 1997, 12 pages) {SuDoc: Y 1.1/8:105-204, Serial Set: 14448, CIS: 97 H523-30, GPOcat, paper, microfiche, DL, OCLC: 37610593, WorldCat} (“No hearings were held on H.R. 1348.”).

House debate, “Expanded War Crimes Act of 1997” (105 H.R. 1348), 143 Congressional Record H5865-H5868 {pf} {fdsys.id, 19kb.txt, 47kb.pdf} (July 28 1997, daily edition 143:108) {SuDoc: X/A.105/1:143/108}, video/text by speaker segment (C-Span Congressional Chronicle, House, July 28 1997, 17:08:48--17:30:04pm).

video

House adopted, roll call vote 340 (391-32-0-11) (U.S. Congress 105-1, July 29 1997, 4:53 p.m.), “Expanded War Crimes Act of 1997” (105 H.R. 1348), 143 Congressional Record H5984-H5985 {pf} {fdsys.id, 7kb.txt, 27kb.pdf} (July 29 1997, daily edition 143:109, U.S. Congress 105-1) {SuDoc: X/A.105/1:143/109} (vote: yes-no-abstain-novote) (abstain=voting “present,” novote=not present or not voting).

senate

Senate version, Senate amendment 105 S.Amdt.910 (“To establish prosecution procedures for war crimes”), “Amendments submitted, The Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998” (105 S. 955), 143 Cong. Rec. S7609-S7615 {fdsys.id, 66kb.txt, 148kb.pdf}, at S7614 {20kb.pdf}, explained, Senate debate, “Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998,” 143 Congressional Record S7544-S7593 {pf} {fdsys.id, 442kb.txt, 521kb.pdf}, at S7589 {17kb.pdf} (July 16 1997, daily edition 143:101, U.S. Congress 105-1) {SuDoc: X/A.105/1:143/101}, video/text by speaker segment (C-Span Congressional Chronicle, Senate, July 16 1997, 20:03:27 - 20:06:04pm), written statement of senator Patrick J. Leahy:

“ Mr. Leahy: Mr. President, I am very pleased that my amendment to strengthen our ability to prosecute war criminals in the United States has been accepted by the Republican side.

This amendment, which builds on the War Crimes Act of 1996, closes some gaps in our Nation’s implementation of the Geneva and Hague Conventions.

The War Crimes Act of 1996 only permits prosecution for war crimes in the United States if the person accused of committing the crime, or the victim of a war crime, is a national of the United States or a member of the U.S. Armed Forces. While noble in its intent, that act does not permit the United States to prosecute non-U.S. nationals who come within our jurisdiction. It leaves the United States open as a potential safe-haven for war criminals seeking to escape prosecution.

Currently, we have no extradition treaties with 75 nations including Somalia, Cambodia, Afghanistan, Lebanon, and Iran. If a war criminal from any of these countries takes refuge in the United States, we cannot extradite him. The alternative—deportation—is a long and complex process which becomes even more difficult when the accused is to be deported to a specific country. Even if deportation is successful, a war criminal may be returned to a country in which the judicial system is nonfunctional—Cambodia, for example—thus escaping prosecution altogether.

My amendment allows us to prosecute war criminals located in the United States, regardless of their nationality. The amendment in no way obligates the United States to prosecute war crimes, nor does it permit the extradition of non-U.S. nationals of the United States for prosecution if the victims of the crime are not United States nationals. Any case undertaken by our Government requires written notification to the Congress by the Attorney General {not part of the final law}, who must take into consideration U.S. national interests and the necessity of U.S. prosecution, to assure a just resolution in each case. The United States will not be drawn into international conflicts where we have no significant national interest.

The amendment expands the scope and offers a more specific definition of what constitutes a war crime that the 1996 act. The 1996 act only refers to grave breaches of the 1949 Geneva Conventions which are defined as willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction of property, not justified by military necessity and carried out unlawfully or wantonly."

My proposed 1997 amendments also covers articles of the 1907 Hague Convention IV which clarify actions prohibited in war.

The inclusion of common article 3 of the Geneva Conventions is vital in that it expressly allows the United States to prosecute war crimes perpetrated in noninternational conflicts, such as Bosnia and Rwanda. In January 1997, there were a reported 35 such internal conflicts, from Algeria to Kasmir.

Finally, violations of the protocol on prohibitions or restrictions on the use of mines, booby-traps and other devices will constitute a war crime under this amendment, once the United States ratifies this important protocol.

The International Committee of the Red Cross, the American Red Cross, the State Department, the Department of Defense, and President Clinton all support the expansion of United States prosecutorial authority as it is contained in this amendment. With its adoption, we will be following in the footsteps of Great Britain, Canada, New Zealand, and Australia—each of which passed similar laws in the 1950's. It is time for us to join them.”

Conference agreement, Making Appropriations for Foreign Operations, Export Financing, and Related Programs for the Fiscal Year Ending September 30, 1998, and for Other Purposes {pf} {fdsys.id, 302kb.txt, 370kb.pdf}, “Conference report [to accompany H.R. 2159]” (U.S. Congress 105-1, H. Rept. 105-401, conference committee, November 12 1997, 101 pages) {SuDoc: Y 1.1/8:105-401, Serial Set: 14455, CIS: 97 H183-28, GPOcat, paper, microfiche, DL, OCLC: 38131320, WorldCat}.

Sec. 583. War crimes prosecution. The conference agreement includes language similar to that in the Senate amendment {105 S.Amdt.910} that amends the War Crimes Act of 1996. The language is identical to the language of H.R. 1348, which passed the House of Representatives on July 29, 1997. This provision defines war crimes for the purposes of the War Crimes Act. The House bill did not address this matter.” (Conference report, pages 94-95).

Conference agreement adopted (November 12-13 1997) (no mention of “Section 583. War crimes prosecution”), House debate, “Conference Report on H.R. 2159, Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998” (105 H.R. 2159), 143 Congressional Record H10667-H10676 {pf} {fdsys.id, 45kb.txt, 356kb.pdf} (November 12 1997, 22:15-23:00pm, daily edition 143:159, U.S. Congress 105-1) {SuDoc: X/A.105/1:143/159}, House adopted, roll call vote 631 (333/76/1/22) (November 13 1997, 12:17am, daily edition 143:160), “{same title},” 143 Cong. Rec. H10763-H10764 {pf} {fdsys.id, 7kb.txt, 28kb.pdf} (November 12/13 1997, 00:10-00:18am) (vote: yes/no/abstain/novote) (abstain=voting “present,” novote=not present or not voting), Senate debate, “Conference Report on H.R. 2159, Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998” (105 H.R. 2159), 143 Cong. Rec. S12527-S12530 {pf} {fdsys.id, 27kb.txt, 43kb.pdf} (November 13 1997, 22:15-23:00pm, daily edition 143:160, U.S. Congress 105-1) {SuDoc: X/A.105/1:143/160}, Senate adopted, without a vote, “Unanimous-Consent Agreement--H.R. 2159” (105 H.R. 2159), 143 Cong. Rec. S12520 {pf} {fdsys.id, 1kb.txt, 14kb.pdf} (November 13 1997).

President signed, William J. Clinton (U.S. President, Jan. 20 1993-2001 Jan. 20), “Statement by the President” (White House, November 26 1997), retitled, “Statement on Signing the Foreign Operations, Export Financing, and Related Programs Appropriations Act, 1998” (105 H.R. 2159), 33:48 WCPD 1925 {fdsys.id, 4kb.txt, 11kb.pdf} {SuDoc: AE 2.109:33/48}, reprinted, 1997 PPPUS 1665-1666 (book 2) {5kb.txt, 28kb.pdf, ucsb} {SuDoc: AE 2.114:997/BK.2} (no mention of the “Expanded War Crimes Act of 1997,” being “Section 583. War crimes prosecution” of this Act he signed).

 

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Military Commissions Act of 2006

Military Commissions Act of 2006, Public Law 109-366, § 6 (“Implementation of Treaty Obligations”) (October 17 2006) {129kb.txt, purl, 126kb.pdf, purl} {SuDoc: AE 2.110:109/366, GPOcat, paper, DL, OCLC: 77134899, WorldCat}, 120 Stat. 2600-2637, at 2632-2635 {SuDoc: AE 2.111:120, GPOcat, paper, DL, ISSN: 0083-3401, LCCN: 07035353, OCLC: 1768474, WorldCat} {volume 120 not yet published}, to be codified at, 18 U.S.C. § 2441.

Legislative history, Military Commissions Act of 2006 (Library of Congress, FRD: Federal Research Division, Military Legal Resources).

{To come, direct links to the Congressional Record, debates, statements, and to the committee hearings, reports}.

____________________

Hague Conventions

Hague-4 (land) {copy, copy, 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), U.S./U.K. ratified, Nov. 27 1909, 36 Stat. 2277, parties {copy} (Dutch Ministry of Foreign Affairs, Netherlands, depositary, 1907 Hague Peace Conventions).

 

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Geneva Conventions

unts

Geneva-1 (land, wounded, sick): Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Geneva, adopted August 12 1949, entered into force October 21 1950), 75 U.N.T.S. 31 (t.reg. 970) {v75, 6.57mb.pdf}, U.S. ratified August 2 1955, effective February 2 1956, 213 U.N.T.S. 378 (t.reg. A-970 U.S.) {v213, 5.85mb.pdf} (U.S. reservations/declarations), depositary gva1 webpage, depositary of the 1949 Geneva Conventions and Protocols (treaty last paragraph, the “done at” clause) (Switzerland, Swiss Federal Council, Federal Department of Foreign Affairs, Berne) (links to parties, reservations/declarations in French, pdf links to the treaty in English, French, and in French, German, Italian, both pdf and html copies, and depositary notifications post-1976).

Geneva-2 (sea, wounded, sick, shipwrecked): Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 75 U.N.T.S. 85 (t.reg. 971), U.S. ratified, 213 U.N.T.S. 382 (t.reg. A-971 U.S.), depositary gva2 webpage.

Geneva-3 (PoWs): Geneva Convention relative to the Treatment of Prisoners of War, 75 U.N.T.S. 135 (t.reg. 972), U.S. ratified, 213 U.N.T.S. 383 (t.reg. A-972 U.S.), volume 75 segments, G3 in English {1.18mb.pdf}, French {1.25mb.pdf}, depositary gva3 webpage.

Geneva-4 (civilians): Geneva Convention relative to the Protection of Civilian Persons in Time of War, 75 U.N.T.S. 287 (t.reg. 973), U.S. ratified, 213 U.N.T.S. 384 (t.reg. A-973 U.S.), volume 75 segments, G4 in English {1.06mb.pdf}, French {605kb.pdf}, depositary gva4 webpage.

U.S. ratification (August 2 1955, effective February 2 1956, 1949 Geneva Conventions):

President transmittted: Harry S. Truman (U.S. President, April 12 1945-1953 Jan. 20), “President’s message transmitting the four Geneva conventions” (White House, April 26 1951), printed in, the Senate treaty document (next item), pages A1-A2, not printed in, 1951 PPPUS {hst, ucsb, umich-pdf} {SuDoc: GS 4.113:951}.

Senate treaty document: Geneva Conventions for the Protection of War Victims {8.8mb.pdf/txt, source}, “Message from the President of the United States Transmitting Copies of the Geneva Conventions for the Protection of War Victims” (Senate “Executives D, E, F, and G”) (U.S. Congress 82-1, Senate Executive Document No. 82/1-D-G, April 26 1951, Senate Foreign Relations Committee, 3+255 pages) {SuDoc: Y 1.82/1:S.EX.D-G, Serial Set: omitted (“Senate executive documents and reports were not included in the Serial Set until 1980”), OCLC: 2627753, WorldCat}, facsimile, Senate Executive Documents and Reports: Covering Documents and Reports Not Printed in the U.S. Serial Set, 1817-1969 (CIS microfiche) {LCCN: 90956089, OCLC: 18187358, du, uc, WorldCat}.

Senate committee hearing: Geneva Conventions for the Protection of War Victims, “Hearing before the Committee on Foreign Relations, United States Senate, Eighty-Fourth Congress, First Session, on Executives D, E, F, and G, 82d Congress, 1st session, the Geneva conventions for the protection of war victims, opened for signature at Geneva on August 12, 1949” (U.S. Congress 84-1, 5 Jan.-Aug. 2 1955, Senate Foreign Relations Committee, Hearing, June 3 1955, 3+68 pages) {SuDoc: Y 4.F 76/2:G 28/2, LCCN: 55061447, OCLC: 19436123, 62662416, 62496330, WorldCat, WorldCat}, facsimile, U.S. Congressional Committee Hearings on Microfiche (published hearings, 1833-1969) (details: udel, tsu, lexis) (Greenwood Press, acquired by CIS, acquired by LexisNexis, acquired by Reed Elsevier) {LCCN: 91955280, OCLC: 38608803, uc, cua, gu, tsu, WorldCat}, source duplicate original, U.S. Congress Senate Library, Hearings, volume 1131 tab 6 (84th Congress, 1955-1956) {Greenwood/CIS microfiche, (84) S1131-6, gu, nyu, Greenwood Press Group 3}.

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), facsimile, Unpublished U.S. Senate Committee Hearings (1823-1976) (CIS microfiche) {CIS (84) SFo-T.40} {LCCN: 88891043, OCLC: 34042124, wcl, uc, 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.

The Chairman. So far as we are concerned.

(The letter referred to is as follows:)

Committee insert

text

Department of Justice,
Washington 25, D.C., June 7, 1955.

Honorable Walter F. George,
United States Senate, Washington, D.C.

My Dear Senator George: During the hearing before the Senate Committee of Foreign Relations on June 3, 1955, on the Geneva conventions of 1949, several members of the committee raised questions which deserve more detailed answers.

Thus, Senator Hickenlooper inquired whether the articles of the convention, dealing with “grave breaches” would, upon ratification of the conventions by the United States, enlarge the legislative powers of Congress. The articles in question are articles 49 and 50 of the convention for the amelioration of the condition of the wounded and sick in armed forces in the field, articles 50 and 51 of the convention for the amelioration of the condition of the wounded, sick and shipwrecked members of armed forces at sea; articles 129 and 130 of the prisoner of war convention; and articles 146 and 147 of the civilian convention. These articles dealing with grave breaches are identical in the four conventions except the enumeration of the violations of a particular convention which constitute grave breaches varies somewhat with the subject matter of the conventions.

Article I, section 8, clause 10, of the Constitution expressly empowers Congress “to define and punish * * * offenses against the law of nations.” In United States v. Arjona (120 U.S. 479) the Supreme Court sustained the power of Congress, under article I, section 8, to enact a criminal statute prohibiting counterfeiting of foreign currency within the United States. More recently in Ex parte Quirin (317 U.S. 1) and In re Yamashita (327 U.S. 1 the Supreme Court held that Congress had power under article I, section 8, to provide for the trial and punishment of offenses against the law of war (as a part of the law of nations) as defined in the Hague Regulations or elsewhere in international law. It is significant that neither the Quirin nor Yamashita cases involved any treaty obligation of the United States to provide penal sanction for violation of the law of war.

Independently of the existence of offenses against the law of nations or of any treaties for the protection of war victims, Congress has broad authority under the Constitution to provide penal sanctions for the mistreatment of such persons. Under its war powers as set forth in the Constitution, Congress could regulate the treatment accorded by the United States to enemy sick and wounded, prisoners of war, civilian internees, and the inhabitants of territory occupied by our Armed Forces. It can enact the criminal sanction required to prevent interference with the discharge of these necessary war functions. Also, such legislative power may be found in more specific provisions of the Constitution. Thus, exercising its power under article I, section 8, clause 14, “to make rules for the government and regulation of the land and naval forces,” Congress could provide penal sanctions for the mistreatment of such persons by members of our Armed Forces. Consequently, the conventions would not create in the Congress a power to impose penal sanctions in this area which it would otherwise lack under the Constitution.

A review of existing legislation reveals no need to enact further legislation in order to provide effective penal sanctions for those violations of the Geneva conventions which are designated as grave breaches. Under the Uniform Code of Military Justice, military courts already have jurisdiction to try for violations of the laws of war members of our own Armed Forces, captured enemy military personnel, and the inhabitants of occupied territory. Moreover, since most of the acts designated as grave breaches would violate our Federal and State penal laws, they could be tried in our civil courts if committed within the United States.

In a related question. Senator Mansfield asked whether the articles dealing with grave breaches could result in imposing criminal liability upon persons without official status. Generally, the acts designated as grave breaches are to be treated as such only when they are in some way the result of action by civilian or military agents of a detaining or occupying power in violation of the conventions. Moreover, as a practical matter, only persons exercising governmental authority ordinarily would be in a position to commit grave breaches against protected persons, such as the serious mistreatment of prisoners of war, sick and wounded of the armed forces, civilian internees, or the inhabitants of occupied territory. We are reluctant to state that the mistreatment of a person protected by the conventions by a private person (e.g., the killing of a wounded airman) could never constitute a grave breach no matter what the intent and circumstances. However, it is entirely clear that these provisions of the conventions were not intended to convert into grave breaches every common crime in which the victim happens to be a person protected by the conventions.

During the hearing before the committee on June 3, there may have been a misunderstanding as to whether, upon ratification of the conventions, it will be necessary for the United States to enact any legislation to implement and comply with the conventions. Actually, the United States will be required to enact only relatively minor legislation clearly within the power of Congress. The problem of continued use of the Red Cross emblem by commercial users in this country has already been presented to the committee. In addition it should be noted that title 18 United States Code 706 presently limits the use of the Red Cross emblem to the American National Red Cross and to the medical services of the Armed Forces (in addition to the pre-1905 commercial users). However, the Geneva conventions of 1949 for the first time authorized the use of the protective Red Cross emblem by the International Committee of the Red Cross, civilian hospitals and their personnel, and convoys of vehicles, hospital trains, and aircraft conveying wounded and sick civilians. It would seem to be appropriate to amend section 706 to permit such additional uses of the emblem, and the agencies concerned will recommend to the Congress legislation to this effect.

Article 53 of the convention for the protection of the sick and wounded also prohibits private or commercial use of the emblems of a red crescent on a white background and a red lion and sun on a white background, which are used, respectively, by Turkey and certain other Moslem countries and by Iran, in place of the Red Cross emblem. However, this prohibition of article 53 is by its express terms “without any effect upon any rights acquired through prior use.” Since we have no legislation restricting the use of these emblems, the United States will be obligated to enact legislation (as by amending 18 U.S.C. 706) prohibiting the private and commercial uses of such emblems, excepting the rights acquired by prior use.

Similarly, article 23 of the Prisoner of War Convention provides that only prisoner of war camps shall be marked "PW" or "PG" (prisonniers de guerre), while article 82 of the Civilian Convention provides that no place other than internment camps shall be marked "IC" {sic: article 83}. It would seem that the United States should provide penal sanctions for misleading use of these designations.

Depending upon whether civilian internees in a future conflict work for public or private employers, and depending upon the type of work they perform, it might be necessary to implement article 95 of the Civilian Convention with legislation providing workmen’s compensation protection where it would not be available under existing Federal and State legislation. However, consideration of such legislation might be deferred until such time as the problem may be presented in more specific form.

Article 74 of the Prisoners of War Convention and article 110 of the Civilian Convention provide that all relief shipments for prisoners of war and civilian internees shall be exempt from import, customs and other duties. Although title 19 United States Code 1318 provides that during a war or national emergency the President may authorize the Secretary of the Treasury to permit the duty-free importation of food, clothing, and other supplies for use in emergency relief work, it was apparently considered necessary in World War II to enact specific legislation (act of June 27, 1942, 56 Stat. 461, 462) to implement article 38 of the 1929 Prisoner of War Convention by providing for the exemption from all duties and customs charges of articles addressed to prisoners of war and civilian internees in the United States. Accordingly, it may be appropriate to revive this statute to comply with the Geneva conventions of 1949.

I may say that the Departments of State and Defense concur in the views stated above. Please advise me if I can be of further assistance to the committee.

Sincerely yours,

J. Lee Rankin,
Assistant Attorney General,
Office of Legal Counsel
.

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) (boldface added), printed, in the 1955 Senate hearing (cited above), pages 58-59, reprinted, in the 1996 House hearing, War Crimes Act of 1995 (cited above), pages 26-27 {243kb.txt, 4.34mb.pdf, source}.

  CJHjr

Senate committee report: Geneva Conventions for the Protection of War Victims {1.8mb.pdf/txt, source}, “Report of the Committee on Foreign Relations on Executives D, E, F, and G, Eighty-Second Congress, First Session” (Senate “Executive Report No. 9”) (U.S. Congress 84-1, Senate Executive Report No. 84-9, Senate Foreign Relations Committee, June 27 1955, 3+32 pages) {SuDoc: Y 1.84/1:RP.9, Serial Set: omitted (“Senate executive documents and reports were not included in the Serial Set until 1980”), LCCN: 55061980, OCLC: 10636151, 21661608, WorldCat, WorldCat}, facsimile, Senate Executive Documents and Reports: Covering Documents and Reports Not Printed in the U.S. Serial Set, 1817-1969 (CIS microfiche) {LCCN: 90956089, OCLC: 18187358, du, uc, WorldCat}, reprinted, 101 Congressional Record 9958-9973, at 9962-9972 (cited next).

Senate floor 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}.

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

President ratified: Dwight D. 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, OCLC: 65826, colu, WorldCat}.

“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.”

Depositary receipt: The Swiss Federal Council (depositary of the Geneva Conventions) certified, they received the U.S. instruments of ratification on August 2 1955, effective February 2 1956. G1: 213 U.N.T.S. 378, G2: 213 U.N.T.S. 382, G3: 213 U.N.T.S. 383, G4: 213 U.N.T.S. 384 (“Certified statement was registered by Switzerland on 15 August 1955”), treaty action, U.S. ratification (t.reg.action A-970, A-971, A-972, A-973) {v213, 5.85mb.pdf}.

Ratification.

Instrument deposited with the Swiss Federal Council on :

2 August 1955

United States of America

(To take effect on 2 February 1956.)

With the following reservations: 2  {source, source}

* * *

________

 2  By a note of 22 September 1955, the Permanent Observer of Switzerland transmitted to the Secretariat of the United Nations a copy of the note addressed by the Embassy of the United States of America in Bern to the Political Department of the Swiss Confederation, the text of which reads as follows :

American Embassy, Bern

No. 119 ...

The Embassy is instructed to point out that only two reservations were made by the United States : the first relates to the use of the Red Cross emblem in so far as the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field is concerned, and the second, made at the time of signature, relates to the right to impose the death penalty, in so far as the Convention Relative to the Protection of Civilian Persons in Time of War is concerned. ...

Bern, September 2, 1955”

 

U.K., Geneva Conventions

Ratified (September 23 1957, effective March 23 1958), 278 U.N.T.S. 259-262 (U.K. ratification of G1, G2, G3, G4), 266-268 (U.K. declaration), “Geneva Convention ... Signed at Geneva, on 12 August 1949{v278, 5.2mb.pdf}, t.reg. 970 (G1, land, wounded and sick), 971 (G2, sea, wounded, sick, shipwrecked), 972 (G3, PoWs), 973 (G4, civilians), treaty action, U.K. ratification, t.reg.action A-970, A-971, A-972, A-973 (ICRC list of ratifications).

Enacted into U.K. domestic law, Geneva Conventions Act 1957 (1957 c.52, July 31 1957) (U.K. Public General Acts, 1957 Chapter 52), as amended {search} (U.K. SLD: Statute Law Database, National Archives, OPSI: Office of Public Sector Information, Controller of HMSO, Statutory Publications Office), as originally enacted (1957) {3.19mb.pdf} (OPSI, “Legislation in its Original Format”).

 

____________________

Protocols to the Geneva Conventions

links

Geneva Conventions, Additional Protocol-1 (targeting+): Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) (Geneva, adopted June 8 1977, entered into force December 7 1978), 1125 U.N.T.S. 3 (t.reg. 17512), volume 1125 {11mb.pdf} and in segments, Protocol I in English {2mb.pdf}, French {2.07mb.pdf}, and the 4 other official languages, Arabic, Chinese, Russian, Spanish {7.47mb.pdf}, depositary gvapr1 webpage, with pdf links to Protocol I in all 6 official languages and, in French, German, Italian, both pdf and html copies.

Geneva Conventions, Additional Protocol-2 (civil war): 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, adopted June 8 1977, entered into force December 7 1978), 1125 U.N.T.S. 609 (t.reg. 17513), volume 1125 segments, Protocol II in English {599kb.pdf}, French {605kb.pdf}, and the 4 other official languages, Arabic, Chinese, Russian, Spanish {799kb.pdf}, depositary gvapr2 webpage.

U.S. ratification (none) (Geneva Protocols):

President transmittted (Protocol-2 only): Ronald Reagan (U.S. President, Jan. 20 1981-1989 Jan. 20), “Message to the Senate Transmitting a Protocol to the 1949 Geneva Conventions{ucsb} (White House, January 29 1987), 1987 PPPUS 88-89 (book 1) {SuDoc: AE 2.114:987/BK.1}.

U.S. Senate treaty document: Protocol II Additional to the 1949 Geneva Conventions, and Relating to the Protection of Victims of Noninternational Armed Conflicts {1mb.pdf/txt, source}, “Message from the President of the United States transmitting the Protocol II additional to the Geneva Conventions of August 12, 1949, and relating to the protection of victims of noninternational armed conflicts, concluded at Geneva on June 10, 1977,” regarding U.S. Senate Treaty No. 100-2 (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, CIS: 87 S385-2, GPOcat, paper, microfiche, DL, OCLC: 15338249, WorldCat}, CIS Microfiche Library {LCCN: 90655075, OCLC: 11730653, howard, du, WorldCat}, reprinted, 26 I.L.M. 561 (International Legal Materials, March 1987) {LCCN: 67005225, OCLC: 1753623, ISSN: 0020-7829, WorldCat} {Lexis, 26 I.L.M. 561}.

Senate treaty action: None.

 

gcapuk

U.K., Protocols I and II

Ratified (January 28 1998, effective July 28 1998), 2020 U.N.T.S. 73-81 (t.reg. 17512, t.reg.action A-17512) {v2020, 3.36mb.pdf}, notified, Swiss Federal Council (depositary of the 1949 Geneva Conventions and Protocols), notification “Gen 1/98,” quoting the 16 U.K. declarations and reservations (Swiss Federal Department of Foreign Affairs, Berne, May 28 1998) {475kb.pdf, depnot}.

Enacted into U.K. domestic law, Protocols I and II (1977), Geneva Conventions (Amendment) Act 1995 {pf, 1.01mb.pdf, source} (1995 c.27, July 19 1995) (U.K. Public General Acts, 1995 Chapter 27) (U.K. SLD: Statute Law Database, National Archives, OPSI: Office of Public Sector Information, Controller of HMSO, Statutory Publications Office).

Activated, ordered into force, Protocols I and II, The Geneva Conventions (Amendment) Act 1995 (Commencement) Order 1998 {source} (U.K. S.I. 1998/1505 (C.30), June 24 1998, effective July 20 1998) (“coming into force”), not amended (S.I.=Statutory Instrument).

Certified, text of the 16 U.K. reservations and declarations, The Geneva Conventions Act (First Protocol) Order 1998 {source} (U.K. S.I. 1998/1754, July 21 1998, effective July 28 1998), not amended.

Extended, to Diego Garcia (BIOT: “British Indian Ocean Territory”), and other “British overseas territories,” Protocols I and II, The Geneva Conventions (Amendment) Act (Overseas Territories) Order 2002 {30kb.pdf, source} (U.K. S.I. 2002/1076, April 17 2002, effective May 1 2002, deposited July 2 2002), not amended.

 

Citations

Pub. L. Public and Private Laws {purl, purl} (online and “slip laws,” printed individually, as they are adopted) (Office of the Federal Register, National Archives and Records Administration, U.S. Government Printing Office) {SuDoc: AE 2.110:, GPOcat, OCLC: 44759033, uc, WorldCat}.

Stat. United States Statutes at Large {purl} (annual compilation, chronologically, of all laws and resolutions, adopted that session of Congress) (Office of the Federal Register, National Archives and Records Administration, U.S. Government Printing Office) {SuDoc: AE 2.111:, GPOcat, paper, DL, ISSN: 0083-3401, LCCN: 07035353, OCLC: 1768474, uc, WorldCat}.

U.S.C.United States Code {purl} (the laws in force, arranged by subject) (U.S. Congress, House, Office of the Law Revision Counsel, U.S. Government Printing Office) {SuDoc: Y 1.2/5:, LCCN: 2001387925 (2000 edition), GPOcat, paper, DL, OCLC: 2368380, WorldCat}. Current version: House, Cornell.

WCPD Weekly Compilation of Presidential Documents (1965-2009) {purl} (Office of the Federal Register, National Archives and Records Administration, U.S. Government Printing Office, 1965-2009) {SuDoc: AE 2.109: (1986-), GS 4.114: (1965-1985), GPOcat, GPOcat, paper, paper, DL, ISSN: 0511-4187, LCCN: 65009929, OCLC: 1769543, WorldCat}.

PPPUS Public Papers of the Presidents of the United States {ucsb.html, umich.pdf, purl, nara, purl} (Office of the Federal Register, National Archives and Records Administration, U.S. Government Printing Office) {SuDoc: AE 2.114: (1984-), GS 4.113: (1929-1933, 1945-1983), GPOcat, GPOcat, paper, paper, DL, ISSN: 0079-7626, LCCN: 58061050, OCLC: 1198154, UC, WorldCat}.

Public Papers of the Presidents of the United States, George W. Bush {gpo, ucsb-html} (January 20 2001-2009 January 20) {OCLC: 52344983, WorldCat}.

Public Papers of the Presidents of the United States, William J. Clinton {gpo, ucsb-html, umich-pdf} (January 20 1993-2001 January 20) {OCLC: 31268646, WorldCat}.

Public Papers of the Presidents of the United States, George Bush {gpo, ucsb-html, umich-pdf} (January 20 1989-1993 January 20) {OCLC: 2235199, WorldCat}.

Public Papers of the Presidents of the United States, Ronald Reagan {ucsb-html, umich-pdf} (January 20 1981-1989 January 20) {OCLC: 22427819, WorldCat}.

Public Papers of the Presidents of the United States, Jimmy Carter {ucsb-html, umich-pdf} (January 20 1977-1981 January 20) {OCLC: 32945033, WorldCat}.

Public Papers of the Presidents of the United States, Dwight D. Eisenhower {ucsb-html, umich-pdf} (January 20 1953-1961 January 20) {OCLC: 878529, WorldCat}.

Public Papers of the Presidents of the United States, Harry S. Truman {ucsb-html, umich-pdf} (April 12 1945-1953 January 20) {OCLC: 32945045, WorldCat}.

Cong. Rec. Congressional Record {purl} (daily edition) (annual pagination in 4 sections: S:Senate, H:House, E:Extension of Remarks, D:Daily Digest) (U.S. Government Printing Office) {SuDoc: X/A, GPOcat, paper, microfiche, ISSN: 0363-7239, LCCN: 80646573, OCLC: 02437919, WorldCat}.

Cong. Rec. Congressional Record (permanent edition) (annual pagination as a single whole, hence, different page numbers from the daily edition) (U.S. Government Printing Office) {SuDoc: X., GPOcat, paper, microfiche, DL, ISSN: 0883-1947, LCCN: 12036438, OCLC: 05058415, WorldCat}.

Serial Set United States Congressional Serial Set {purl} (volume list: Congresses 15-91 (1817-1970), 85-108+ (1957-2004+) (volumes for each session, compiled several years later, containing a duplicate original of all Congressional committee reports, and House and Senate documents, but not committee hearings or serial prints, except when rarely exhibited to a report) {SuDoc: Y 1.1/2:Serial, GPOcat, DL, LCCN: 92643101, OCLC: 5866454, 8396583, WorldCat} (selected online volumes, Congresses 23-64, 1833-1917), previously, American State Papers (1789-1838).

 

This document is not copyrighted and may be freely copied.

CJHjr

Charles Judson Harwood Jr.

Posted January 30 2005. Updated June 5 2009.

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