The War Crimes Act: Current Issues
Released: 2009-01-22T00:00:00

The 1949 Geneva Conventions proscribe certain conduct by High Contracting Parties toward specified categories of vulnerable persons during armed conflict. High Contracting Parties are also required to provide effective penal sanctions against any person who commits (or orders the commission of) a "grave breach" of one of the Conventions, which is defined to include the wilful killing, torture or inhuman treatment, and the causing of great suffering or serious injury to the body or health of protected persons. Congress approved the War Crimes Act of 1996 ( P.L. 104-192 ) specifically to implement the Conventions' penal requirements.

The War Crimes Act (18 U.S.C. § 2441)

The War Crimes Act imposes criminal penalties against persons who commit certain offenses under the law of war, when those offenses are either committed by or against a U.S. national or member of the U.S. Armed Forces. The act applies regardless of whether the offense occurs inside or outside the United States. Offenders are subject to imprisonment for life or any term of years and may receive the death penalty if their offense results in death to the victim.

At the time of enactment, the War Crimes Act only covered grave breaches of the 1949 Geneva Conventions. During congressional deliberations, the Departments of State and Defense suggested the act be crafted to cover additional war crimes, but these recommendations were not immediately followed. However, Congress amended the War Crimes Act the following year to cover additional war crimes that had been suggested by the State and Defense Departments, including violations under Article 3 of any of the 1949 Geneva Conventions (Common Article 3). Common Article 3 is applicable to armed conflicts "not of an international character" (e.g., civil wars, rebellions, and other conflicts between State and non-State actors) and covers persons taking no active part in hostilities, including those who have laid down their arms or been incapacitated by capture or injury. Such persons are to be treated humanely and protected from certain treatment, including "violence to life and person," "cruel treatment and torture," and "outrages upon personal dignity, in particular, humiliating and degrading treatment."

Implications of Hamdan v. Rumsfeld

There has been controversy concerning whether activities by military and intelligence personnel relating to captured Al Qaeda suspects might give rise to prosecution under the War Crimes Act, particularly in light of the Supreme Court's ruling in the 2006 case of Hamdan v . Rumsfeld . The following sections provide relevant background and briefly discuss possible implications that the Court's ruling may have on issues relating to the War Crimes Act.

Application of Common Article 3 to Al Qaeda

At least since early 2002 and lasting until the Court's ruling in Hamdan , the Bush Administration had taken the position that the Geneva Conventions did not apply to members of Al Qaeda captured in the global "war on terror." Specifically, the Administration argued that the Conventions were applicable to international armed conflicts between High Contracting Parties and States that complied with Convention provisions, and therefore do not cover non-State actors such as Al Qaeda. The Administration further claimed that the conflict with Al Qaeda is international in scope, and Common Article 3 accordingly was inapplicable to the conflict because it only covers armed conflicts "not of an international nature."

The issue in Hamdan primarily concerned military tribunals convened by presidential order to try detainees for violations of the law of war. The Court held that such tribunals did not comply with the Uniform Code of Military Justice or the law of war, including the Geneva Conventions. However, the Court's interpretation of Common Article 3 had broader implications for U.S. policy towards captured Al Qaeda suspects. The Court rejected the Administration's interpretation of Common Article 3 as not covering Al Qaeda members, concluding that the provision affords "some minimal protection, falling short of full protection under the Conventions, to [any] individuals ... who are involved in a conflict in the territory of a signatory." In the aftermath of the Court's ruling, the Department of Defense issued new treatment guidelines concerning military detainees (including Al Qaeda members) that required, at a minimum, application of the standards articulated by Common Article 3. Subsequently, fourteen high-level Al Qaeda operatives who had been held abroad by the CIA and subjected to aggressive interrogation techniques were transferred to Department of Defense (DOD) custody in Guantanamo Bay, Cuba.

Scope of Prohibited Conduct Under the War Crimes Act Relating to Common Article 3 Violations

The United States has apparently never prosecuted a person under the War Crimes Act. Perhaps as a result, there is some question concerning the act's scope. In the aftermath of the Court's ruling in Hamdan , some suggested that the War Crimes Act be amended to specify whether certain forms of treatment or interrogation constitute a punishable offense. They argued that the scope of the War Crimes Act was ambiguous, particularly as it related to offenses concerning violations of Common Article 3. In a September 2006 address, President George W. Bush suggested that some provisions of Common Article 3 provided U.S. personnel with inadequate notice as to what interrogation methods could permissibly be used against detained Al Qaeda suspects, and requested legislation listing "specific, recognizable offenses that would be considered crimes under the War Crimes Act." On the other hand, some argued that amending the War Crimes Act to cover specific acts would overly restrict the act's scope, making certain unspecified conduct legally permissible even though it was as severe as conduct that was expressly prohibited.

Although some types of conduct prohibited by Common Article 3 are easily recognizable (e.g., murder, mutilation, the taking of hostages), it might not always be consensus as to whether conduct constitutes impermissible "torture," "cruel treatment," or "outrages upon personal dignity, in particular humiliating and degrading treatment." In January 2009, President Barack Obama issued an Executive Order barring U.S. officials, employees, and agents, when conducting prospective interrogations, from relying on any interpretation of the law governing interrogation (including Common Article 3) that was issued by the Bush Administration following September 11, 2001, absent further guidance from the Attorney General. For discussion of U.S. and international jurisprudence and agency interpretations concerning the scope of these terms, particularly as they relate to interrogation techniques, see CRS Report RL32567, Lawfulness of Interrogation Techniques under the Geneva Conventions , by [author name scrubbed]; CRS Report RL33655, Interrogation of Detainees: Overview of the McCain Amendment , by [author name scrubbed]; and CRS Report RL32438, U.N. Convention Against Torture (CAT): Overview and Application to Interrogation Techniques , by [author name scrubbed].

Liability Under the War Crimes Act for U.S. Personnel on Account of Pre-Hamdan Activities

Prior to the Court's ruling in Hamdan , the Bush Administration did not apply Common Article 3 protections to captured Al Qaeda agents. In some cases, Al Qaeda operatives were subject to harsh treatment, especially in the context of interrogation, which did not appear to comply with Common Article 3 requirements. As a result, some have raised questions as to whether U.S. personnel might be criminally liable under the War Crimes Act for the pre- Hamdan treatment of some Al Qaeda detainees.

Although not immune from prosecution, U.S. personnel who could be charged with violating the War Crimes Act would have several possible defenses to criminal liability, so long as their activities were conducted with the authorization of the Administration and under the reasonable (though mistaken) belief that their actions were lawful. Section 1004(a) of the Detainee Treatment Act of 2005 (DTA, P.L. 109-148 ), enacted several months prior to the Hamdan decision, provides that

In any civil action or criminal prosecution against an officer, employee, member of the Armed Forces, or other agent of the United States Government who is a United States person, arising out of the officer, employee, member of the Armed Forces, or other agent's engaging in specific operational practices, that involve detention and interrogation of aliens who the President or his designees have determined are believed to be engaged in or associated with international terrorist activity that poses a serious, continuing threat to the United States ... and that were officially authorized and determined to be lawful at the time that they were conducted, it shall be a defense that ... [the] agent did not know that the practices were unlawful and a person of ordinary sense and understanding would not know the practices were unlawful. Good faith reliance on advice of counsel should be an important factor, among others, to consider in assessing whether a person of ordinary sense and understanding would have known the practices to be unlawful. Nothing in this section shall be construed to limit or extinguish any defense or protection otherwise available ... or to provide immunity from prosecution for any criminal offense by the proper authorities.

The statutory defense provided by the DTA appears to apply only to U.S. personnel who were "engaging in specific operational practices" that had been officially authorized. The defense would not apply to unauthorized conduct. The statute also does not appear applicable to higher-level U.S. officials who may have authorized, but did not directly engage in, specific operational practices involving detention or interrogation. As discussed later, the Military Commissions Act of 2006 (MCA, P.L. 109-366 ) subsequently made expressly clear that this defense extends to activities that occurred prior to enactment of the DTA and following September 11, 2001.

In addition to this statutory defense, a number of other legal defenses could be raised by U.S. personnel charged with War Crimes Act offenses based on conduct that had been authorized, assuming the defendants acted with government sanction and/or had been erroneously informed by responsible authorities that their conduct was legal. Although "mistake of law" defenses are generally rejected, such defenses have been recognized by courts in certain cases where defendants have acted with government sanction or after being erroneously informed by responsible authorities that their conduct was legal. These defenses can be divided into three overlapping categories: (1) defense of entrapment by estoppel , available when a defendant is informed by a government official that certain conduct is legal, and thereafter commits what would otherwise constitute a criminal offense in reasonable reliance of this representation; (2) defense of public authority , available when a defendant reasonably relies on the authority of a government official to authorize otherwise illegal conduct, and the official has actual authority to sanction the defendant to perform such conduct; and (3) defense of apparent public authority , which is recognized by some (but not all) federal circuits, and is similar to the defense of public authority, except that the official only needs to have apparent authority to sanction the defendant's conduct. Similar defenses may exist for military personnel in courts-martial proceedings. Additionally, prosecution of U.S. personnel may be precluded by the federal statute of limitations, which limits the period for prosecution under the War Crimes Act and most other federal offenses to five years from the date the offense occurs, except in the case of a capital offense (in which case there is no temporal bar to the prosecution of the offender).

Amendments Made by the Military Commissions Act

In response to the Court's ruling in Hamdan , Congress passed the Military Commissions Act of 2006 ( P.L. 109-366 ), which was enacted into law on October 17, 2006. Among other things, the MCA made several amendments to the War Crimes Act, so as to retroactively limit its scope.

The MCA amended the War Crimes Act provisions concerning Common Article 3 so that only specified violations would be punishable (as opposed to any Common Article 3 violation, as was previously the case), including committing, or attempting or conspiring to commit

torture (defined in a manner similar to that used by the Federal Torture Statute, 18 U.S.C. §§ 2340-2340A); cruel treatment; the performing of biological experiments; murder; mutilation or maiming; intentionally causing serious bodily injury; rape; sexual assault or abuse; and the taking of hostages.

Prior to the enactment of the MCA, there was some debate concerning the scope of cruel treatment that should be subject to criminal penalty under the War Crimes Act. The MCA defined "cruel treatment" prohibited by the War Crimes Act in a similar manner to the definition of "torture" contained in the Federal Torture Statute. However, whereas a person is criminally liable for torture only if he specifically intends to cause severe mental or physical pain and suffering, pursuant to the amendments made the MCA, a person is criminally liable for inflictions of cruel treatment if he generally intended to cause serious mental or physical pain and suffering to a person protected under Common Article 3.

The MCA further defined "serious mental pain and suffering" and "serious physical pain and suffering" rising to the level of cruel treatment punishable under the War Crimes Act. "Serious mental pain and suffering" is defined by reference to the Federal Torture Statute's definition of "severe mental pain and suffering" rising to the level of torture. Serious mental pain and suffering constituting cruel treatment refers to pain and suffering arising from

the intentional infliction or threatened infliction of severe physical pain or suffering; the administration, application, or threatened administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality; the threat of imminent death; or the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality.

The type of mental pain and suffering constituting cruel treatment generally differs from the type rising to the level of torture, in that it only needs to be of a serious and non-transitory nature which need not be prolonged , as opposed to being of a severe and prolonged nature. However, the War Crimes Act, as amended, provides that with respect to conduct occurring before enactment of the MCA, such pain and suffering must be of a prolonged nature.

As amended by the MCA, the War Crimes Act defines "serious physical pain or suffering" constituting cruel treatment as actual bodily injury involving

a substantial risk of death; extreme physical pain; a burn or physical disfigurement of a serious nature (other than cuts, abrasions, or bruises); or significant loss or impairment of the function of a bodily member, organ, or mental faculty.

Under U.S. jurisprudence, most or all of these activities are likely considered to be of such severity as to constitute torture, at least in certain contexts, and could give rise to criminal prosecution if the offender specifically intended to cause such injury. However, such persons may now also be prosecuted under the War Crimes Act for such conduct (presuming it was directed against persons protected under Common Article 3), when they caused such injury through reckless or criminally negligent action.

The amendments made by the MCA to the War Crimes Act applied retroactively, possibly precluding prosecution of personnel for some (but not all) conduct falling under the more general scope of the earlier version of the War Crimes Act. The MCA also provided that the statutory defense contained in DTA § 1004 covers any criminal prosecution under the War Crimes Act against U.S. personnel relating to the sanctioned treatment of detainees, if such conduct occurred between September 11, 2001, and December 30, 2005 (i.e., the date the DTA was enacted). It also amended the DTA to require the federal government to provide or employ counsel and pay fees related to any prosecution or civil action against U.S. personnel for authorized detention or interrogation activities. The MCA also specified that certain provisions of the War Crimes Act, as amended, are inapplicable with respect to collateral damage or a lawful attack. In addition, the provision of the War Crimes Act, as amended, relating to hostage taking does not apply to prisoner exchange during wartime. The MCA also prohibited U.S. courts from using foreign or international sources to serve as the basis for interpreting the provisions of the War Crimes Act, as amended, defining "grave breaches" of Common Article 3.

Additionally, the MCA prevents persons from invoking the Geneva Conventions as a source of rights in certain judicial proceedings. The Conventions are prohibited from being invoked in habeas corpus or civil proceedings to which the United States or a current or former agent of the United States is a party.

Post-MCA Developments Regarding the Treatment of Detainees

The MCA authorizes the President, acting pursuant to an Executive Order published in the Federal Register, to promulgate higher standards and administrative regulations for Geneva Conventions violations, so long as these rules do not authorize conduct subject to criminal penalty under the War Crimes Act.

On July 20, 2007, President Bush signed an Executive Order interpreting Common Article 3, as applied to the detention and interrogation of certain alien detainees by the CIA, when those aliens (1) are determined to be members or supporters of Al Qaeda, the Taliban, or associated organizations; and (2) likely possess information that could assist in detecting or deterring a terrorist attack against the United States and its allies, or could provide help in locating senior leadership within Al Qaeda or the Taliban. The Executive Order does not specifically authorize the use of any particular interrogation techniques with respect to detainees, but instead bars any CIA detention and interrogation program from employing certain practices. Specifically, the Order prohibits the use of

torture, as defined under the Federal Torture Statute (18 U.S.C. § 2340); cruel, inhuman, and degrading treatment, as defined under the McCain Amendment and the MCA; any activities subject to criminal penalties under the War Crimes Act (e.g., murder, rape, mutilation); other acts of violence serious enough to be considered comparable to the kind expressly prohibited under the War Crimes Act; willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or acts intended to denigrate the religion, religious practices, or religious objects of the individual.

Although some types of conduct that were barred by the Order are easily recognizable (e.g., murder, rape, the performance of sexual acts), it is not readily apparent as to what interrogation techniques fell under the Order's prohibition against acts deemed to be "cruel, inhuman, or degrading" or "beyond the bounds of human decency." Certain interrogation techniques that have been the subject of controversy and are expressly prohibited from being used by the military under the most recent version of the Army Field Manual—waterboarding, hooding, sleep deprivation, or forced standing for prolonged periods, for example—were not specifically addressed by the Order. In a public address on September 7, 2007, CIA Director Michael Hayden stated that "no one ever claimed that the Army Field Manual exhausted all the lawful tools that America could have to protect itself," and suggested that additional interrogation techniques could be employed by the CIA that were barred from use by DOD personnel under the Army Field Manual.

On January 22, 2009, President Barack Obama issued a new Executive Order rescinding President Bush's order of July 20, 2007, and instituting new requirements for interrogation by the CIA and other agencies. The new Order generally bars anyone in U.S. custody or control while in an armed conflict from being subjected to any interrogation technique or treatment other than that authorized under the Army Field Manual. The Field Manual specifically authorizes 19 interrogation techniques, some of which require higher-level authorization to be performed – i.e., "Mutt and Jeff," a "good cop, bad cop" interrogation tactic where a detainee is made to identify with the friendlier interrogator; "false flag," where a detainee is made to believe he is being held by another country known to subject prisoners to harsh interrogation; and separation, an interrogation tactic by which detainees are separated so that they cannot coordinate their stories, which is barred from use against "lawful" prisoners of war. The Order does not preclude federal law enforcement agencies from continuing to "use authorized, non-coercive techniques of interrogation that are designed to elicit voluntary statements and do not involve the use of force, threats, or promises."

The Executive Order also provides that when conducting prospective interrogations, U.S. government officials, employees, and agents may not rely on any interpretation of the law governing interrogations (including applicable criminal laws and Common Article 3) issued by the Department of Justice between September 11, 2001 and January 20, 2009 (i.e., the final day of the Bush Administration), absent further guidance from the Attorney General. It further establishes a Special Interagency Task Force on Interrogation and Transfer Policies, chaired by the Attorney General, which is required:

to study and evaluate whether the interrogation practices and techniques in [the] Army Field Manual ... when employed by departments or agencies outside the military, provide an appropriate means of acquiring the intelligence necessary to protect the Nation, and, if warranted, to recommend any additional or different guidance for other departments or agencies....

The Task Force is required to issue a report to the President of its recommendations within 180 days of the Order's issuance, unless the Attorney General determines that an extension is necessary.

Recent Legislative Activity

In the 110 th Congress, legislative proposals were introduced to modify the scope of the War Crimes Act. The proposals would have amended the War Crimes Act to criminalize treatment of protected persons which violated the DTA's prohibition on "cruel, inhuman, and degrading treatment" of persons in U.S. custody, or which denied such persons the right to be tried for war crimes before a regularly constituted court. The proposals would also have amended the War Crimes Act to make it an offense for any person not subject to the Uniform Code of Military Justice (UCMJ) to commit any offense of Common Article 3, if such an offense is listed under the UCMJ as punishable by death or at least one year's confinement. The bills would also have amended the MCA by requiring the President to notify Geneva Convention parties that the United States expects U.S. persons detained in a conflict not of an international character to be treated in a manner consistent with U.S. interpretation and application of Common Article 3. It is possible the additional proposals to modify the War Crimes Act will be introduced in the 111 th Congress.