United States of America
Practice Relating to Rule 156. Definition of War Crimes
The US Field Manual (1956) provides: “The term ‘war crime’ is the technical expression for a violation of the law of war by any person or persons, military or civilian. Every violation of the law of war is a war crime.”
The manual then states: “Conspiracy, direct incitement, and attempts to commit, as well as complicity in the commission of, … war crimes are punishable.”
The manual further provides a list of “Grave Breaches of the Geneva Conventions of 1949 as War Crimes”
and a list of “Other Types of War Crimes” which it describes as being “representative of violations of the law of war (“war crimes)”.
The US Air Force Pamphlet (1976) emphasizes the importance of criminal intent as an element of any war crime.
The US Instructor’s Guide (1985) provides: “Under the Geneva Conventions the most serious offenses are called grave breaches of the law of war.”
The US Naval Handbook (1995) provides:
War crimes are defined as those acts which violate the law of armed conflict, that is, the rules established by customary and conventional international law regulating the conduct of warfare, and which have been generally recognized as war crimes. Acts constituting war crimes may be committed by the armed forces of a belligerent or by individuals belonging to the civilian population.
The Handbook then provides a list of acts which it characterizes as “representative war crimes”.
The US Naval Handbook (2007) states:
While there is not an exhaustive list of war crimes, they consist of serious and intentional violations of the law of armed conflict, which are generally recognized as war crimes and may be committed during periods of international or noninternational armed conflict. Acts constituting war crimes may be committed by combatants, noncombatants, or civilians. ….
Grave breaches of the Geneva Conventions are a special type of war crime. … The Geneva Conventions define grave breaches as:
acts committed against persons or property protected by the Conventions; willful killing, torture or inhumane treatment, including biological experiments, willfully 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.
The Handbook then provides a list of acts which, “if committed intentionally, are examples of war crimes that could be considered grave breaches”.
The US War Crimes Act (1996) provides:
As used in this section the term ‘‘war crime’’ means any conduct –
1) defined as a grave breach in any of the [1949 Geneva Conventions], 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 [1907 Hague Regulations];
3) which constitutes a violation of common Article 3 of the [1949 Geneva Conventions], or any protocol to such convention to which the United States is a party and which deals with non-international armed conflict; or
4) of a person who, in relation to an armed conflict and contrary to the provisions of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended at Geneva on 3 May 1996 (Protocol II as amended on 3 May 1996), when the United States is a party to such Protocol, willfully kills or causes serious injury to civilians.
The US War Crimes Act (1996), as amended by the Military Commissions Act (2006), which was passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, changed the definition of “war crime” in relation to common Article 3 of the 1949 Geneva Conventions as follows:
§ 2441. War crimes
(c) Definition – As used in this section the term “war crime” means any conduct —
(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.
In a number of post-Second World War decisions, US courts held that war crimes could be committed by civilians. The cases included prosecutions against the staff of a State sanatorium for the extermination of civilians deported from occupied territories; officials of companies which supplied the gas used for the extermination of concentration camp detainees; and high-ranking officials in private corporations for, inter alia, deportation of the civilian populations of occupied territories to slave labour and plunder of public and private property in occupied territories. For example, in the Flick case in 1947, the US Military Tribunal at Nuremberg stated:
Acts adjudged criminal when done by an officer of the government are criminal also when done by a private individual. The guilt differs only in magnitude, not in quality. The offender in either case is charged with personal wrong and punishment falls on the offender in propria persona
. The application of international law to individuals is not a novelty.
In its judgment in the Handel case in 1985, a US District Court held:
“War crimes” refers to criminal actions taken against the soldiers or civilians of another
country rather than against the defendant’s fellow citizens. This limitation on the meaning of “war crimes” is reflected in the [1945 IMT Charter (Nuremberg)] annexed to the Agreement for the Establishment of an International Military Tribunal.
[emphasis in original]
However, the Court also stated: “By contrast, crimes against humanity include ‘murder, extermination, enslavement, deportation, and other inhumane acts committed against any
(emphasis in original)
The Hamdan case in 2006 involved a Yemeni national in custody at the US internment facility in Guantanamo Bay, Cuba, who petitioned for writs of habeas corpus and mandamus to challenge the Executive’s intended means of prosecuting a charge of conspiracy to commit offences triable by a military commission. In a majority opinion, the US Supreme Court found that the military commissions convened to try Hamdan violated in structure and procedure both the Uniform Code of Military Justice (UCMJ) and the 1949 Geneva Conventions. With regard to whether the crime of “conspiracy” is a recognized violation of the laws of war, Justice Stevens, joined by Justices Souter, Ginsberg and Breyer, held:
[N]one of the major treaties governing the law of war identifies conspiracy as a violation thereof. And the only “conspiracy” crimes that have been recognized by international war crimes tribunals (whose jurisdiction often extends beyond war crimes proper to crimes against humanity and crimes against the peace) are conspiracy to commit genocide and common plan to wage aggressive war, which is a crime against the peace and requires for its commission actual participation in a “concrete plan to wage war.” 1 Trial of the Major War Criminals Before the International Military Tribunal: Nuremberg, 14 November 1945-1 October 1946, p 225 (1947). The International Military Tribunal at Nuremberg, over the prosecution’s objections, pointedly refused to recognize as a violation of the law of war conspiracy to commit war crimes, see, e.g.
, 22 id.
, at 469, and convicted only Hitler’s most senior associates of conspiracy to wage aggressive war, see S. Pomorski, Conspiracy and Criminal Organization, in the Nuremberg Trial and International Law 213, 233–235 (G. Ginsburgs & V. Kudriavtsev eds. 1990). As one prominent figure from the Nuremberg trials has explained, members of the Tribunal objected to recognition of conspiracy as a violation of the law of war on the ground that “[t]he Anglo-American concept of conspiracy was not part of European legal systems and arguably not an element of the internationally recognized laws of war.” T. Taylor, Anatomy of the Nuremberg Trials: A Personal Memoir 36 (1992); see also id.
, at 550 (observing that Francis Biddle, who as Attorney General prosecuted the defendants in Quirin
, thought the French judge had made a “‘persuasive argument that conspiracy in the truest sense is not known to international law’”).
In 1991, in a diplomatic note to Iraq, the US reminded Iraq: “Under International Law, violations of the Geneva Conventions, the Geneva [Gas] Protocol of 1925, or related International Laws of armed conflict are war crimes.”
In 1993, during a debate in the UN Security Council following the adoption of the 1993 ICTY Statute, the United States stated:
It is understood that the “laws and customs of war” referred to in Article 3 [of the 1993 ICTY Statute which aims at the prosecution of “violations of the laws and customs of war”] include all obligations under humanitarian law agreements in force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 Geneva Conventions, and the 1977 Additional Protocols to these Conventions.
According to the Report on US Practice, the United States considers any violation of the law of war a war crime, provided the accused had the requisite criminal intent at the time of his or her participation in the violation. The report adds that conspiracy to violate the laws of war, inciting violations and aiding and abetting violations of the laws of war are also punishable as war crimes.
In March 2003, the US Deputy Assistant Attorney General, Office of Legal Counsel, Department of Justice, wrote a memorandum to the General Counsel of the Department of Defense, which provided a legal analysis governing the military interrogation of alien “unlawful combatants” held outside the United States. The memorandum stated in part:
Section 2441 of Title 18 [US Code Section 2441 - War Crimes] criminalizes the commission of war crimes by U.S. nationals and members of the U.S. Armed Forces. It criminalizes such conduct whether it occurs inside or outside the United States, including conduct within the special maritime and territorial jurisdiction. See id. §2441(a). Subsection (c) of section 2441 defines “war crimes” as (1) grave breaches of any of the Geneva Conventions; (2) conduct prohibited by certain provisions of the Hague Convention IV, Hague Convention IV Respecting the Laws and Customs of War on Land, Oct.18, 1907, Stat. 2277; or (3) conduct that constitutes a violation of common Article 3 of the Geneva Conventions. We have previously concluded that this statute does not apply to conduct toward the members of al Qaeda and the Taliban. See Treaties and Laws Memorandum at 8–9. We reached this conclusion because we found al Qaeda to be a non governmental terrorist organization whose members are not legally entitled to the protections of GPW [1949 Geneva Convention III]. Since its members cannot be considered to be POWs [prisoners of war] under the Convention, conduct toward members of al Qaeda could not constitute a grave breach of the Geneva Conventions. See 18 U.S.C. § 2441(c)(I). We further found that common Article 3 of the Geneva Conventions covers either traditional wars between state parties to the convention or non-international civil wars, but not an international conflict with a non-governmental terrorist organization. As a result, conduct toward members of al Qaeda could not constitute a violation of common Article 3, see Treaties and Law Memorandum at 9, and thus could not violate Section 2441 (c)(3).
We also concluded that the President had reasonable grounds to find that the Taliban had failed to meet the requirements for POW status under GPW. See Memorandum for Alberto R. Gonzales, Counsel to the President, from Jay S. Bybee, Assistant Attorney General, Re: Status of Taliban Forces Under Article 4 of the Third Geneva Convention of 1949 at 3 (Feb. 7, 2002). On February 7, 2002, the President determined that these treaties did not protect either the Taliban or al Qaeda …
Thus, section 2441 is inapplicable to conduct toward members of the Taliban or al Qaeda. We further note that the Treaties and Law Memorandum is the Justice Department’s binding interpretation of the War Crimes Act, and it will preclude any prosecution under it for conduct toward members of the Taliban and al Qaeda. See Letter for William H. Taft, Legal Adviser, Department of State, from John C. Yoo, Deputy Assistant Attorney General, and Robert J. Delahunty, Special Counsel, Office of Legal Counsel (Jan. 14, 2002).
The Rome Statute makes torture a crime subject to the ICC’s jurisdiction in only two contexts. Under article 7 of the Rome Statute, torture may fall under the ICC’s jurisdiction as a crime against humanity if it is committed as “part of a widespread and systematic attack directed against any civilian population.” Here, however, the interrogation of al Qaeda or Taliban operatives is part of an international armed conflict against a terrorist organization; not an attack on a civilian population. Indeed, our conflict with al Qaeda does not directly involve any distinct civilian population. Rather, al Qaeda solely constitutes a group of illegal belligerents who are dispersed around the world into cells, rather than being associated with the civilian population of a nation-state. Under article 8 of the Rome Statute, torture can fall within the ICC’s jurisdiction as a war crime. To constitute a war crime, torture must be committed against “persons or property protected under the provisions of the relevant Geneva Conventions,” Rome Statute, art. 8. As we have explained, neither members of the al Qaeda terrorist network nor Taliban soldiers are entitled to the legal status of prisoners of war under the GPW. See Treaties and Laws Memorandum
at 8 (Jan. 22, 2Q02); see also United States v. Lindh,
212 F.2d 541, 556-57 (E.D. Va. 2002). Interrogation of al Qaeda or Taliban members therefore cannot constitute a war crime because article 8 of the Rome Statute applies only to those protected by the Geneva Conventions.
In September 2006, the US President spoke before an invited audience at the White House to announce the creation of new military commissions to try suspected terrorists, during which he also announced the transfer of 14 detainees from the Central Intelligence Agency (CIA) detention program (thus publicly revealing that such a program existed) into military custody:
Some may ask: Why are you acknowledging this [CIA] program now? There are two reasons why I’m making these limited disclosures today. First, we have largely completed our questioning of the men – and to start the process for bringing them to trial, we must bring them into the open. Second, the Supreme Court’s recent decision Hamdan v. Rumsfeld, 548 US 557 (2006)] has impaired our ability to prosecute terrorists through military commissions, and has put in question the future of the CIA program. In its ruling on military commissions, the Court determined that a provision of the Geneva Conventions known as “Common Article Three” applies to our war with al Qaeda. This article includes provisions that prohibit “outrages upon personal dignity” and “humiliating and degrading treatment.” The problem is that these and other provisions of Common Article Three are vague and undefined, and each could be interpreted in different ways by American or foreign judges. And some believe our military and intelligence personnel involved in capturing and questioning terrorists could now be at risk of prosecution under the War Crimes Act – simply for doing their jobs in a thorough and professional way.
This is unacceptable. Our military and intelligence personnel go face to face with the world’s most dangerous men every day. They have risked their lives to capture some of the most brutal terrorists on Earth. And they have worked day and night to find out what the terrorists know so we can stop new attacks. America owes our brave men and women some things in return. We owe them their thanks for saving lives and keeping America safe. And we owe them clear rules, so they can continue to do their jobs and protect our people.
So today, I’m asking Congress to pass legislation that will clarify the rules for our personnel fighting the war on terror. First, I’m asking Congress to list the specific, recognizable offenses that would be considered crimes under the War Crimes Act – so our personnel can know clearly what is prohibited in the handling of terrorist enemies. Second, I’m asking that Congress make explicit that by following the standards of the Detainee Treatment Act our personnel are fulfilling America’s obligations under Common Article Three of the Geneva Conventions. Third, I’m asking that Congress make it clear that captured terrorists cannot use the Geneva Conventions as a basis to sue our personnel in courts – in U.S. courts. The men and women who protect us should not have to fear lawsuits filed by terrorists because they’re doing their jobs.