|
Committee Reports for the 104th Congress | |
| Partial Report: House Report 104-698 | 1 of 1 | |
|
|
|
Previous Part of This Report
I. THE GENEVA CONVENTIONS
Four Geneva Conventions for the Protection of Victims of War, dated August 12, 1949, were ratified by the United States on July 14, 1955:
- Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (`Convention I');
- Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (`Convention II');
- Convention Relative to the Treatment of Prisoners of War (`Convention III'); and
- Convention Relative to the Protection of Civilian Persons in Time of War (`Convention IV').
Deputy Under Secretary of State Robert Murphy testified in 1955 as to the purpose of the conventions:
The Geneva conventions are another long step forward toward mitigating the severities of war on its helpless victims. They reflect enlightened practices as carried out by the United States and other civilized countries and they represent largely what the United States would do whether or not a party to the conventions. Our own conduct has served to establish higher standards and we can only benefit by having them incorporated in a stronger body of conventional wartime law. * * *
We feel that ratification of the conventions now before you would be fully in the interest of the United States.1
[Footnote]
[Footnote] 1`Geneva Conventions for the Protection of War Victims: Hearing on Executives D, E, F and G Before the Senate Comm. on Foreign Relations,' 84th Cong., 1st Sess. 5 (1955).
Each of the four conventions denominates offenses known as `grave breaches.' Conventions I and II (protecting wounded and sick soldiers and sailors) state that:
Grave breaches * * * shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.2
[Footnote]
[Footnote] 2Convention I, art. 50; Convention II, art. 51.
Convention III (protecting prisoners of war) states that:
Grave breaches * * * shall be those involving any of the following acts, if committed against persons or property protected by the Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, compelling a prisoner of war to serve in the forces of the hostile Power, or wilfully depriving a prisoner of war of the rights of fair and regular trial prescribed in this Convention.3
[Footnote]
[Footnote] 3Convention III, art. 130.
Convention IV (protecting civilians in time of war) states that:
Grave breaches * * * shall be those involving any of the following acts, if committed against persons or property protected by the present Convention: wilful killing, torture or inhuman treatment, including biological experiments, wilfully causing great suffering or serious injury to body or health, unlawful deportation or transfer or unlawful confinement of a protected person, compelling a protected person to serve in the forces of a hostile Power, or wilfully depriving a protected person of the rights of fair and regular trial prescribed in the present Convention, taking of hostages and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.4
[Footnote]
[Footnote] 4Convention IV, art. 147.
The four conventions require that signatory countries enact appropriate implementing legislation criminalizing the commission of grave breaches:
The [signatory countries] undertake to enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, any of the grave breaches of the present Convention[s] * * *.
Each [signatory country] shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers * * * hand such persons over for trial to another [signatory country], provided such [country] has made out a prime facie case.5
[Footnote]
[Footnote] 5Convention I, art. 49; Convention II, art. 50; Convention III, art. 129; Convention IV, art. 146.
II. CURRENT PROSECUTABILITY UNDER UNITED STATES LAW OF INDIVIDUALS FOR `GRAVE BREACHES' OF THE GENEVA CONVENTIONS AND THE IMPACT OF H.R. 3680
A. Implementing legislation
Despite ratifying the Geneva conventions, the United States has never enacted legislation specifically implementing their penal provisions. This was felt to be unnecessary, that existing United States law provided adequate means of prosecution. The Senate Committee on Foreign Relations stated that:
The committee is satisfied that the obligations imposed upon the United States by the `grave breaches' provisions are such as can be met by existing legislation enacted by the Federal Government within its constitutional powers. A review of that legislation reveals that no further measures are needed to provide effective penal sanctions or procedures * * *.6
[Footnote]
[Footnote] 6`Geneva Conventions for the Protection of War Victims: Report of the Comm. on Foreign Relations,' Senate Exec. Rep. No. 9, 84th Cong., 1st Sess. 27 (1955).
A review of current federal and state law indicates that while there are many instances in which individuals committing grave breaches of the Geneva conventions may already be prosecuted, prosecution would be impossible in many other situations.
B. Federal and State criminal statutes
Most acts considered grave breaches of the Geneva conventions--murder, hostage-taking, etc- would be punishable by federal or state criminal law if committed within the United States. When crimes which fall under the definition of grave breaches occur outside of the United States, federal criminal law allows for prosecution in certain instances:
Use of Weapon of Mass Destruction: Federal law provides for criminal penalties for the use or attempted use of a weapon of mass destruction against a U.S. national while such national is outside the United States, or against property outside of the United States which is owned, leased, or used by the United States.7
[Footnote]
[Footnote] 7See 18 U.S.C. sec. 2332a (1994).
Terrorism: Federal law provides for criminal penalties for the killing of, attempted killing of, or conspiracy to kill a U.S. national while such national is outside the United States and where the killing is intended to coerce, intimidate, or retaliate against a government or a civilian population.8
[Footnote]
[Footnote] 8See 18 U.S.C. sec. 2332 (1994).
Torture: Federal law provides for criminal penalties for the torture of, or attempted torture of, an individual outside of the United States if the alleged perpetrator is a U.S. national or is present in the United States (irrespective of the nationality of the victim or alleged offender).9
[Footnote]
[Footnote] 9See 18 U.S.C. sec. 2340A (1994).
Genocide: Federal law provides for criminal penalties for killings and certain other offenses committed outside the United States with the specific intent to destroy a national, ethnic, racial or religious group when the offender is a national of the United States.10
[Footnote]
[Footnote] 10See 18 U.S.C. sec. 1091 (1994).
Killing of Protected Persons: Federal law provides for criminal penalties for the killing or attempted killing of internationally protected persons (heads of state and certain representatives or employees of governments when not in their home country, as provided by treaty) if the alleged offender is present in the United States, regardless of the place where the offense was committed or the nationality of the victim or offender.11
[Footnote]
[Footnote] 11See 18 U.S.C. sec. 1116 (1994).
Hostage Taking: Federal law provides for criminal penalties for the seizure or detention of (or attempt to seize or detain) a person followed by the threat to kill, injure, or continue to detain that person in order to compel a third person or a government to do or abstain from doing any act as a condition for release. This applies to acts occurring outside the U.S. if the offender or the persons seized is a U.S. national, the offender is found in the United States or the government sought to be compelled is the United States Government.12
[Footnote]
[Footnote] 12See 18 U.S.C. sec. 1203 (1994).
The conduct these statutes proscribe would in many instances be considered grave breaches of the conventions if they took place in the context of armed conflict. However, many crimes which would be considered grave breaches are not encompassed by these statutes. For instance, the simple killing of a prisoner of war would not be covered by any of the statutes. They thus incompletely implement the Geneva conventions.
C. Courts-martial
The Uniform Code of Military Justice grants courts-martial jurisdiction to try individuals for violations of the laws of war.13
[Footnote] Since the Geneva conventions are considered parts of the law of war, courts-martial would seem to be a powerful mechanism for the punishment of war crimes. Their limitation, however, is that they apply to very circumscribed groups of people: generally, members of the United States armed forces, persons serving with or accompanying armed forces in the field, and enemy prisoners of war.14
[Footnote] The most famous example of a court martial for war crimes is probably that of William Calley, who was prosecuted by court-martial for his part in the Mai Lai massacre during the Vietnam War.15
[Footnote] A member of the U.S. armed forces who commits a war crime is only subject to court-martial for so long as he or she remains in the military.
[Footnote] 13See 10 U.S.C. sec. 818 (1994).
[Footnote] 14See 10 U.S.C. sec. 802 (1994).
[Footnote] 15See United States v. Calley, 46 C.M.R. 1131 (1973).
D. Military commissions
`Very little attention has been paid in recent years to the possibility of using American military tribunals to enforce the law of war.'16
[Footnote] In certain situations, military commissions could be used to provide a mechanism for the prosecution of war criminals.
[Footnote] 16Robinson Everett, `Possible Use of American Military Tribunals to Punish Offenses Against the Law of Nations,' 34 Va. J. Int'l L. 289, 293 (1994).
Military tribunals--or commissions--have been used widely by the United States from the Mexican-American War to the Civil War to World War II to prosecute war criminals and to provide a system of justice in lands occupied by our armed forces.17
[Footnote]
[Footnote] 17See Madsen v. Kinsella, 343 U.S. 341, 346 n. 8. (1952).
Military commissions have `no statutory existence, though [they are] recognized by statute law[:]'18
[Footnote]
[Footnote] 18Army Judge Advocate General Crowder in testimony before the Senate Subcommittee on Military Affairs (64th Cong., 1st Sess.), quoted in Madsen, 343 U.S. at 353. 10 U.S.C. sec. 821 preserves the jurisdiction of military commissions.
[Congress] has left it to the President, and the military commanders representing him, to employ the commission, as occasion may require, for the investigation and punishment of violations of the laws of war and other offences not cognizable by court-martial.19
[Footnote]
[Footnote] 19`William Winthrop, Military Law and Precedents' 831 (1920) (footnote omitted).
The jurisdiction of military commissions has traditionally been thought of as limited:
[T]he classes of persons who in our law may become subject to the jurisdiction of military commissions are the following: (1) Individuals of the enemy's army who have been guilty of illegitimate warfare or other offences in violation of the laws of war; (2) Inhabitants of enemy's country occupied and held by the right of conquest; (3) Inhabitants of places or districts under martial law; (4) Officers and soldiers of our own army, or persons serving with it in the field, who, in time of war, become chargeable with crimes or offences not cognizable, or triable, by the criminal courts or under the Articles of war.20
[Footnote]
[Footnote] 20Id. at 838.
Military commissions were most recently used during and immediately following World War II to prosecute German and Japanese war criminals and to provide a legal system for occupied areas.21
[Footnote] American military commissions have generally prosecuted individuals whose acts were committed in lands occupied by our military,22
[Footnote] and have always been used in instances where the United States was involved in hostilities.
[Footnote] 21See, e.g., Madsen (trial of American citizen who killed her husband in occupied Germany); In Re Yamashita, 327 U.S. 1 (1946) (trial of Japanese General for war crimes committed while in command of an army group in the Philippines); Ex Parte Quirin, 317 U.S. 1 (1942) (trial of German saboteurs who landed on Long Island).
[Footnote] 22An exception was Ex Parte Quirin, where the military commission could by presidential proclamation try `all persons who are subjects * * * of any nation at war with the United States * * * and who during time of war enter or attempt to enter the United States * * * through coastal or boundary defenses, and are charged with committing or attempting or preparing to commit sabotage, espionage, hostile or warlike acts, or violations of the law of war * * * ' Ex Parte Quirin, 317 U.S. at 22-23. The Supreme Court in this case found that a military commission could constitutionally try as war criminals German saboteurs who landed on Long Island.
Many gaps in federal law relating to the prosecution of individuals for grave breaches of the Geneva conventions could in principle be plugged by the formation of military commissions. However, the Supreme Court condemned their breadth of jurisdiction to uncertainty in Ex Parte Quirin, where it stated that `[w]e have no occasion now to define with meticulous care the ultimate boundaries of the jurisdiction of military tribunals to try persons according to the law of war.'23
[Footnote]
[Footnote] 23Id., 317 U.S. at 45-46.
E. Implementation of the Geneva conventions in other countries
A number of countries which are signatories to the Geneva conventions, such as the United Kingdom,24
[Footnote] have enacted penal sanctions for the commission of grave breaches of the Geneva conventions. Other signatory countries, such as Germany,25
[Footnote] have enacted legislation criminalizing certain conduct contrary to their international treaty obligations (presumably including the Geneva conventions).
[Footnote] 245 and 6 Eliz. 2, ch. 52.
[Footnote] 25StGB, sec. 6, No. 9.
F. Need for H.R. 3680
There are major gaps in the prosecutability of individuals under federal criminal law for war crimes committed against Americans. For example, what of American civilians subjected to grave breaches of Convention IV--perhaps murder--in an armed conflict overseas? What of American prisoners of war subjected to grave breaches of Convention III--perhaps, again, murder? Military commissions might be able to fill these gaps, at least when the United States is involved in hostilities. However, the extent to which commissions can be employed is unclear. Making grave breaches of the Geneva conventions violations of federal criminal law when the victims are American, as H.R. 3680 does, would ensure that perpetrators of many types of major war crimes against Americans would be prosecutable by the United States.
H.R. 3680 would also fill another gap in current law. The ability to court martial members of our armed forces who commit war crimes ends when they leave military service. H.R. 3680 would allow for prosecution even after discharge. This may not only be in the interests of the victims, but also of the accused. The Americans prosecuted would have available all the procedural protections of the American justice system. These might be lacking if the United States extradited the individuals to their victims' home countries for prosecution.
|
|
|
|
| 1 of 1 |