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

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.

“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).

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

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,

“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.”

“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”