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War Crimes Act of 1996

War Crimes Act of 1996. Ha Vu Alexis Zeiden PUBP 710 March 3, 2008. Agenda. Overview of provisions Legislative history Cases Overview of problems Particular issue: Application to Al Qaeda Pros and cons Policy and Legislative Proposal Rationale and Feasibility.

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War Crimes Act of 1996

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  1. War Crimes Act of 1996 Ha Vu Alexis Zeiden PUBP 710 March 3, 2008

  2. Agenda • Overview of provisions • Legislative history • Cases • Overview of problems • Particular issue: Application to Al Qaeda • Pros and cons • Policy and Legislative Proposal • Rationale and Feasibility

  3. Overview of the War Crimes Act • Applies to anyone who commits a war crime: criminals or victims areU.S. citizens or Armed Forces • Penalty could be imprisonment or even death • Offenses can happen both inside or outside the U.S

  4. Overview of the War Crimes Act War Crimes Act Defined • Grave breach of the 1949 Geneva Conventions • Common Article 3 of the 1949 Geneva Conventions • Article 23, 25, 27, or 28 of the Annex to the Hague Convention IV • Provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended in 1996

  5. Common Article 3 ofthe 1949 Geneva Conventions • Cruel treatment and torture • Outrages upon personal dignity, in particular humiliating and degrading treatment • Prosecution without regularly constituted court • Specifically refers to armed conflict not of an ‘international character’

  6. The Legislative History • Purpose • To implement the 1949 Geneva Conventions’ penal requirements • Why did the US need domestic law after already having signed the treaty? Why until 1996? • Passage • Overwhelming majorities by the Congress and signed into law by President Clinton

  7. Leading CasesDecided Under the War Crimes Act • None! • No one has been proscuted under the War Crimes Act • However, Hamdan v. Rumsfeld heavily influenced the Act • Made Article 3 applicable to Al Qaeda

  8. Issue 1: Application of Law • Bush Administration argued that the Act was inapplicable to the conflict with Al Qaeda • Common Article 3 of the Geneva Convention

  9. Issue 2: Scope of the Law • No one has yet to prosecuted under the War Crimes Act • The Act was intended to protect individuals from a ‘grave breach’ of the Geneva Convention • What constitutes • “cruel treatment” • “torture” • “outrages upon personal dignity”

  10. Issue 3: Subsequent Legislation • Detainee Treatment Act of 2005 • Helps to define appropriate treatment of detainees • Provides formal standards for interrogation • Removes the federal courts jurisdiction over detainees wishing to challenge their imprisonment • Military Commissions Act of 2006 (MCA) • Passed in response to Hamdan v. Rumsfeld • Criminalizes specific violations under Common Article 3 • Applied retroactively

  11. How does the War Crimes Act fit into a Post 9/11 World? • The Supreme Court ruled against the Bush Administration to say that Al Qaeda is covered under Common Article 3 of the Geneva Convention • The MCA amends the War Crimes Act by defining which violations under Common Article 3 are covered

  12. In Support of Application of War Crimes Act to Al Qaeda • Supreme Courts decision in Hamdan • International Committee of the Red Cross • Seeks to identify issues in international humanitarian law (IHL) • Fully supports all decrees of the Geneva Convention • Amnesty International • US is engaging in ‘systematic violations of international law’ • Sharply against MCA

  13. In Opposition of Application of War Crimes Act to Al Qaeda • The Bush Administration has long stated that they do not believe that Common Article 3 of the Geneva Convention applies to Al Qaeda and Al Qaeda detainees because they are a non-state actor of an international nature.

  14. Competing Statutes • Geneva Conventions • International Treaty • Signed in 1949 • War Crime Act • United States Federal Law • Passed in 1996 • Military Commissions • United States Federal Law • Passed in 2006

  15. Competing Statutes • War Crimes Act complies with Article 3 of the Geneva Convention • MCA excludes “enemy combatant” of Article 3 (inconsistent with Geneva Convention and War Crimes Act)

  16. Does MCA Overrule War Crimes Act and Geneva Convention Articles? • Subsequent supreme law of the land can overwrite prior law when there is an inconsistence • However, this is not yet known • Court has authority to interpret • Scenario 1: The Court may rule like in Hamdan case Article 3 applies to everyone • Scenario 2: The Court may rule MCA is lawful and overwrites prior inconsistent law • Article 3 does not apply to “enemy combatant”

  17. Policy Proposal • The War Crimes Act of 1996 should be amended to • Further define when and how Article 3 of the Geneva Convention should be applied • Overwrite portions of the Military Commissions Act which violate customary international law

  18. Rationale for Drafting the War Crimes Act of 2008 • Abiding by US Treaty Obligations • International legal obligation • Customary international law • International principle of Reciprocity • Information Gathering • Avoid wrongful prosecution • Avoid receiving bad information • U.S. credibility • Unilateral vs. multilateral methods

  19. Feasibility to Create the War Crimes Act of 2008 • Judicial • Supreme Court’s decision in Hamdan v. Rumsfeld • Legislative • MCA just adopted by the US Congress, so it will not be easily overwritten • Passed very quickly, some may already be rethinking • Executive • A new administration could lead to new policy goals

  20. Sources • Amnesty International. 2005. “Military Commission Act, Turning Bad Policy into Bad Law,” • Council of Foreign Relations. 2005. Detainee Treatment Act of 2005, www.cfr.org/publication/9865/. • Garcia, Michael John. 2007. “The War Crimes Act: Current Issues,” CRS Report for Congress, July 2007. • Holtzman, Elizabeth. 2005. “Torture and Accountability,” The Nation, June 28, 2005 (July 18, 2005 issue). • International Committee of the Red Cross.2007. “International Humanitarian Law and The Challenges of Contemporary Armed Conflicts,” October 2007, www.icrc.org/Web/eng/siteeng0.nsf/htmlall/ihl-30-international-conference-101207/$File/30IC_8-4_IHLchallenges_Report&Annexes_ENG_FINAL.pdf.

  21. Sources • “Is George Bush Guilty of War Crimes...and Who Cares?” The Hufftington Post, August 7, 2006. • Mariner, Joanne. “Private Contractors Who Torture,” UN Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field • One Hundred Ninth Congress of the United States of America. 2006. Military Commissions Act of 2006, S.3930, January 3. • Smith, Jefferey. 2006. “War Crimes Act Changes Would Reduce Threat of Prosecution,” Washington Post, August 9, 2006, Page A01. • Supreme Court of the United States, Hamdan v. Rumsfeld, Secretary of Defense et al., Argued March 28, 2006--Decided June 29, 2006. No. 05-184. 2006. • Van Bergen, Jennifer. 2005. “The New CIA Gulag of Secret Foreign Prisoners,” Nov. 2005. • War Crimes Act of 1996. U.S. Code Collection, Title 18, Part I, Chapter 118, § 2441.

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