United States of America
Practice Relating to Rule 158. Prosecution of War Crimes
The US Field Manual (1956) states:
At the request of a Party to the conflict, an enquiry shall be instituted, in a manner to be decided between the interested Parties, concerning any alleged violation of the [1949 Geneva] Convention[s] … Once the violation has been established, the Parties to the conflict shall put an end to it and shall repress it with the least possible delay.
The manual adds:
The High Contracting Parties [to the 1949 Geneva Conventions] 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 [1949 Geneva] Conventions …
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, … grave breaches and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party concerned, provided such High Contracting Party has made out a prima facie case …
[These] principles … are declaratory of the obligations of belligerents under customary international law to take measures for the punishment of war crimes committed by all persons, including members of a belligerent’s own armed forces …
Commanding officers of United States troops must insure that war crimes committed by members of their forces against enemy personnel are promptly and adequately punished.
The US Air Force Pamphlet (1976) states:
Domestic tribunals have the competence and, under the grave breaches articles of the Geneva Conventions, the strict obligation to punish certain violations … Ad hoc international tribunals, such as those established in Germany and Japan following World War II, did punish individuals for their personal actions violating the law of armed conflict. However, the importance of criminal responsibility … primarily relates to a state’s own efforts to enforce the law of armed conflict with respect to its own
[emphasis in original]
The Pamphlet further states:
There are express obligations to search for persons alleged to have committed grave breaches, to bring them to trial or extradite them, to take all measures necessary to suppress all acts contrary to the Conventions and to implement all obligations … The United States has for many years urged measures on the international scene to improve the implementation and better observance of the law of armed conflict …
Within the Geneva Conventions system, state responsibility to repress breaches is stressed, and no provision is made for international tribunals within the Conventions …
In the United States, jurisdiction is not limited to offenses against US nationals but extends to offenses against victims of other nationalities. Violations by adversary personnel, when appropriate, are tried as offenses against international law which forms part of the law of the United States. In occupied territories, trials are usually held under occupation law. Trials of such personnel have been held in regular military courts, military commissions, provost courts, military government courts, and other military tribunals of the United States, as well as in international tribunals.
The US Soldier’s Manual (1984) reminds soldiers that they “may be tried and convicted for crimes committed in combat even after they have left the service. Furthermore, criminal acts may make your mission harder and thereby endanger your life.”
The US Instructor’s Guide (1985) notes:
Nearly all nations have signed the Geneva Conventions and have agreed in doing so to search out, to bring to trial, and to punish all persons who commit a grave breach of the conventions. You may be tried and convicted even after leaving the service.
The US Naval Handbook (1995) provides: “In the event of a clearly established violation
of the law of armed conflict, the aggrieved nation may: … punish individual offenders either during the conflict or upon cessation of hostilities.”
(emphasis in original)
The Handbook further states:
Belligerents have the obligation under international law to punish their own nationals, whether members of the armed forces or civilians, who commit war crimes. International law also provides that belligerents have the right to punish enemy armed forces personnel and enemy civilians who fall under their control for such offenses.
The US Naval Handbook (2007) states:
Alleged violations of the law of armed conflict, whether committed by or against U.S., allied, or enemy personnel, are to be reported promptly through appropriate command channels. War crimes alleged to be committed by U.S. personnel or its allies, must be investigated thoroughly, and where appropriate, remedied by corrective action. War crimes committed by enemy personnel will be reviewed for appropriate responsive action.
The Handbook also states:
States are obligated under international law to punish their own nationals, whether members of the armed forces or civilians, who commit war crimes. International law also provides that States have the right to punish enemy armed forces personnel and enemy civilians who fall under their control for such offenses
The Geneva Conventions … place duties on States to search for persons alleged to have committed grave breaches, bring them to trial, and punish them if found guilty. This duty exists regardless of the nationality of the offender and includes the right to punish enemy armed forces personnel and enemy civilians. For violations of the Conventions that do not rise to the level of a grave breach, States are obligated to take measures necessary to suppress them.
The US Manual on Detainee Operations (2008) states:
All DOD [Department of Defense] personnel (military and civilian personnel) and contractor employees who obtain information about a “reportable incident” as set forth in DODD [Department Defense Directive] 2311.01E, will immediately report the incident through their chain of command or supervision. A “reportable incident” is “a possible, suspected, or alleged violation of the law of war, for which there is credible information, or conduct during military operations other than war that would constitute a violation of the law of war if it occurred during an armed conflict.” Reports also may be made through other channels, such as the military police (MP), a judge advocate, or an inspector general, who will then forward a report through the appropriate chain of command. Reportable incidents should be investigated, and where appropriate, remedied by disciplinary or administrative action. On-scene commanders will ensure that measures are taken to preserve evidence of alleged violations pending investigation by U.S., coalition, allied, or other appropriate authorities. (DODD 2311.01E, DOD Law of War Program
, May 9, 2006, paragraph 4.5.).
In a chapter on “Roles and Responsibilities”, the manual states:
7. Commander, Detainee Operations
The commander, detainee operations (CDO) is typically responsible for all detention facility and interrogation operations in the joint operations area (JOA) … The CDO will have the following responsibilities:
e. … [R]eport immediately all allegations of maltreatment and/or abuse of detainees through the designated command channels, and investigate allegations promptly and thoroughly.
8. Detention Facility Commander
The DFC is the commander responsible for the execution of all detention facility operations … A DFC’s responsibilities normally include the following:
e. Ensuring that all allegations of maltreatment of detainees are immediately reported through the appropriate command channels.
9. Joint Interrogation and Debriefing Center Commander
The JIDC commander and/or chief is the officer responsible to the CDO for all matters relating to interrogation, intelligence collection and reporting, and interaction with other agencies involved in the intelligence and/or evidence gathering process. The JIDC commander should be an intelligence officer and is normally responsible for the following:
h. Ensuring that all allegations of maltreatment of detainees are immediately reported through the appropriate command channels.
The manual quotes a statement by the US President to the UN on the International Day in Support of Victims of Torture, 26 June 2004: “Our Armed Forces are committed to complying with … [the 1949 Geneva Conventions] and to holding accountable those in our military who do not.”
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established provisions for the punishment of the perpetrators of a list of specific offences and also of “all other offences against the laws or customs of war”, to be pronounced by the military commissions.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established provisions for the punishment of the perpetrators of a list of “violations of the laws and customs of war” and other more specific acts committed “against any civilian population before or during the war”, to be pronounced by the military commissions.
The US War Crimes Act (1996) provides:
(a) Offence. – Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b), shall be [punishable].
(b) Circumstances. – The circumstances referred to in subsection (a) are that the person committing such war crime or the victim of such war crime is a member of the Armed Forces of the United States or a national of the United States (as defined in section 101 of the Immigration and Nationality Act).
(c) Definition. – As used in this section the term “war crime” means any conduct –
(1) defined as a grave breach in any of the international conventions signed at Geneva 12 August 1949, 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 Annex to the Hague Convention IV, Respecting the Laws and Customs of War on Land, signed 18 October 1907;
(3) which constitutes a violation of common Article 3 of the international conventions signed at Geneva, 12 August 1949, 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 Intelligence Reform and Terrorism Prevention Act (2004) states with regard to the treatment of aliens who commit acts of torture, extrajudicial killings or other atrocities abroad:
Sec. 5505. Establishment of the Office of Special Investigations.
(a) AMENDMENT OF THE IMMIGRATION AND NATIONALITY ACT. – Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
(h)(1) The Attorney General shall establish within the Criminal Division of the Department of Justice an Office of Special Investigations with the authority to detect and investigate, and, where appropriate, to take legal action to denaturalize any alien described in section 212(a)(3)(E) [relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings].
(2) The Attorney General shall consult with the Secretary of Homeland Security in making determinations concerning the criminal prosecution or extradition of aliens described in section 212(a)(3)(E).
(3) In determining the appropriate legal action to take against an alien described in section 212(a)(3)(E), consideration shall be given to –
(A) the availability of criminal prosecution under the laws of the United States for any conduct that may form the basis for removal and denaturalization; or
(B) the availability of extradition of the alien to a foreign jurisdiction that is prepared to undertake a prosecution for such conduct.
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
“Sec. 6. Implementation of Treaty Obligations
“(a) IMPLEMENTATION OF TREATY OBLIGATIONS.—
“(1) IN GENERAL.—The acts enumerated in subsection (d) of section 2441 of title 18, United States Code, as added by subsection (b) of this section, and in subsection (c) of this section, constitute violations of common Article 3 of the Geneva Conventions prohibited by United States law.
“(2) PROHIBITION ON GRAVE BREACHES.—The provisions of section 2441 of title 18, United States Code, as amended by this section, fully satisfy the obligation under Article 129 of the Third Geneva Convention for the United States to provide effective penal sanctions for grave breaches which are encompassed in common Article 3 in the context of an armed conflict not of an international character. No foreign or international source of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection (d) of such section 2441.
In February 2007, and consequent to the Military Commissions Act of 2006, the US President issued an Executive Order establishing new military commissions “to try alien unlawful enemy combatants for offenses triable by military commission”. The Executive Order stated:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Military Commissions Act of 2006 (Public Law 109366), the Authorization for Use of Military Force (Public Law 107-40), and section 948b(b) of title 10, United States Code, it is hereby ordered as follows:
Section 1. Establishment of Military Commissions. There are hereby established military commissions to try alien unlawful enemy combatants for offenses triable by military commission as provided in chapter 47A of title 10.
Sec. 2. Definitions. As used in this order:
(a) “unlawful enemy combatant” has the meaning provided for that term in section 948a(1) of title 10; and
(b) “alien” means a person who is not a citizen of the United States.
Sec. 3. Supersedure. This order supersedes any provision of the President’s Military Order of November 13, 2001 (66 Fed. Reg. 57,833), that relates to trial by military commission, specifically including:
(a) section 4 of the Military Order; and
(b) any requirement in section 2 of the Military Order, as it relates to trial by military commission, for a determination of:
(i) reason to believe specified matters; or
(ii) the interest of the United States.
Sec. 4. General Provisions.
(a) This order shall be implemented in accordance with applicable law and subject to the availability of appropriations.
(b) The heads of executive departments and agencies shall provide such information and assistance to the Secretary of Defense as may be necessary to implement this order and chapter 47A of title 10.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, entities, officers, employees, or agents, or any other person.
In the Quirin case
in 1942, the US Supreme Court held: “From the very beginning of its history this Court has applied the law of war, including that part of the law of nations which prescribes for the conduct of war, the status, rights and duties of enemy nations as well as enemy individuals.” It then went on to give a list of cases in which individual offenders had been charged with offences against the law of nations.
In the Altstötter case
(The Justice Trial)
in 1947, the US Military Tribunal at Nuremberg rejected arguments by the defendants that international law was concerned with the actions of sovereign States and did not provide punishment for individuals, holding that it had long been established that international law imposed duties and liabilities upon individuals as well as upon States.
In the Flick case
in 1947, the US Military Tribunal at Nuremberg noted: “It can no longer be successfully maintained that international law is concerned only with the actions of sovereign states and provides no punishment for individuals.” The Tribunal also rejected the argument that the fact that the defendants were private individuals rather than public officials representing the State meant that they could not be criminally responsible for a violation of international law. Instead, it held: “International law … binds every citizen just as does ordinary municipal law … The application of international law to individuals is no novelty.”
In the Karadžić case
in 1995, a US Court of Appeals considered a civil action brought by Bosnian victims of atrocities against Radovan Karadžić under, inter alia
, the US Alien Tort Claims Act which gives the US courts jurisdiction over claims by aliens for torts committed in violation of the law of nations or treaties to which the United States is party. The Court emphasized that individuals could be held responsible, both criminally, and, as in this case, civilly, for violations of international law and noted: “The liability of private individuals for committing war crimes has been recognized since World War I and was confirmed at Nuremberg after World War II, and remains today an important aspect of international law.”
At the CDDH, the United States stated with respect to a proposal to characterize the use of certain prohibited weapons as a grave breach under Article 85 of the 1977 Additional Protocol I: “Grave breaches were meant to be the most serious type of crime; Parties have an obligation to punish or extradite those guilty of them.”
The 1979 version of the US Department of Defense Directive on the Law of War Program stated:
It is the policy of the Department of Defense to ensure that:
2. A program, designed to prevent violations of the law of war, is implemented by the U.S. Armed Forces.
3. Alleged violations of the law of war, whether committed by or against U.S. or enemy personnel, are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.
The Directive also stated: “The Armed Forces of the U.S. shall institute and implement programs to prevent violations of the law of war.”
In 1987, the deputy legal adviser of the US Department of State, referring to Articles 80–85 of the 1977 Additional Protocol I, affirmed: “We support the principle that all necessary measures for the implementation of the rules of humanitarian law be taken without delay.” Referring to Articles 85–89 of the 1977 Additional Protocol I, he added:
We support the principle that the appropriate authorities take all reasonable measures to prevent acts contrary to the applicable rules of humanitarian law, take all appropriate steps to bring to justice any persons who have wilfully committed such acts.
In 1991, in a diplomatic note to Iraq, the United States stated:
The Government of the United States reminds the Government of Iraq that under International Law, violations of the Geneva Conventions, the Geneva [Gas] Protocol of 1925, or related International Laws of armed conflict are war crimes, and individuals guilty of such violations may be subject to prosecution at any time … This includes members of the Iraqi armed forces and civilian government officials.
In another such diplomatic note, the United States reiterated: “Iraqi individuals who are guilty of … war crimes … are … subject to prosecution at any time.”
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
[Department of Defense Directive on the Law of War Program No. 5100.77] is the foundation for the US military law of war program. It contains four policies:
• A program, designed to prevent violations of the law of war … [will be] implemented by the US Armed Forces.
• Alleged violations of the law of war, whether committed by or against US or enemy personnel … [will be] promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.
The report also stated:
Each service has issued directives to implement [Department of Defense Directive on the Law of War Program No. 5100.77] with respect to the reporting and investigation of suspected violations of the law of war committed by or against its personnel.
The 1998 version of the US Department of Defense (DoD) Directive on the Law of War Program, reissuing the one of 1979, provides:
It is the DoD policy to ensure that:
4.2 An effective program to prevent violations of the law of war is implemented by the DoD Components.
4.3 All reportable incidents committed by or against U.S. or enemy persons are promptly reported, thoroughly investigated, and, where appropriate, remedied by corrective action.
The Directive further stated: “The Heads of the DoD Components shall … institute and implement effective programs to prevent violations of the law of war.”
The Report on US Practice states:
It is the opinio juris
of the US that all nations are obligated to punish members of their armed forces guilty of serious violations of the laws of war. As to other persons suspected of war crimes, there is a general obligation to try them or to cooperate with another state willing to try them in accordance with international fair trial standards.
The report also states that it is the opinio juris
of the United States that “there is a general obligation to try [persons suspected of war crimes other than members of its own armed forces] or to cooperate with another state willing to try them in accordance with international fair trial standards”.
In 2003, the Permanent Representatives of the United States and the United Kingdom to the United Nations wrote in a letter to the President of the UN Security Council:
The United States, the United Kingdom and Coalition partners, working through the Coalition Provisional Authority, shall inter alia, provide for security in and for the provisional administration of Iraq, including by … promoting accountability for crimes and atrocities committed by the previous Iraqi regime.
In 2005, in its second periodic report to the Committee against Torture, the United States stated:
107. In response to these allegations of [Abu Ghraib prison] abuse, the U.S. Government has acted swiftly to investigate and take action to address the abuses. The United States is investigating allegations of abuse thoroughly and making structural, personnel, and policy changes necessary to reduce the risk of further such incidents. All credible allegations of inappropriate conduct by U.S. personnel are thoroughly investigated. A rapid response to allegations of abuse, accompanied by accountability, sends an unequivocal signal to all U.S. military personnel and the international community that mistreatment of detainees will not be tolerated under any circumstances. To the extent allegations of misconduct have been levied against private contractors, the U.S. Department of Justice [DOJ] has conducted or initiated investigations. For example, following the reports at Abu Ghraib, the Department of Justice received referrals from Military Investigators regarding contract employees and their potential involvement in the abuses. DOJ subsequently opened an investigation.
108. At the direction of the President, the Secretary of Defense, and the military chain of command, nine different senior-level investigative bodies convened to review military policy from top-to-bottom in order to understand the facts in these cases and identify any systemic factors that may have been relevant. The assignment of these entities was to identify and investigate the circumstances of all alleged instances of abuse, review command structure and policy, and recommend personnel and policy changes to improve accountability and reduce the possibility of future abuse.
116. The Department of Defense takes all allegations of abuse seriously and investigates them. Those people who are found to have committed unlawful acts are held accountable and disciplined as the circumstances warrant. Investigations are thorough and have high priority.
In February 2008, in a statement to Central Intelligence Agency (CIA) employees, the Director of the CIA stated:
The Department of Defense announced today that war crimes charges related to the attacks of September 11, 2001 have been sworn against six detainees at Guantánamo. Five of those men … were previously held within CIA’s high-value terrorist interrogation program. Our government believes that these six individuals, among others, played important roles in planning and promoting the murder of thousands of innocent people. Now that formal charges have been sworn, the Convening Authority of the Office of Military Commissions of the Department of Defense will determine if sufficient probable cause exists to refer the case for trial by military commission.
In June 2010, the co-heads of delegation for an interagency group from the U.S. Government attending the Review Conference for the International Criminal Court at Kampala, Uganda, provided a teleconference briefing for US-based journalists. In his introduction, the US Ambassador-at-Large for War Crimes Issues stated that “our presentation at all of those sessions [introductory meetings and at an intervention during the previous day of the conference] emphasized the strong support of the United States Government for accountability for … war crimes”.
In November 2010, in responding to the recommendations made by the Working Group of the UN Human Rights Council’s Universal Periodic Review of US human rights records, the US Department of State’s legal adviser stated:
Most of these recommendations referred to our country’s continuing armed conflicts in Afghanistan, Iraq, and against Al Qaeda and associated forces. … Allegations of past abuse of detainees by U.S. forces in Afghanistan, Iraq and Guantánamo have been investigated and appropriate corrective action taken.
In the Demjanjuk case
in 1985, proceedings before the US Court of Appeals led to the revocation of the citizenship of the accused who was subsequently extradited to stand trial in Israel on accusations of having committed war crimes during the Second World War.
The Report on US Practice states:
Over the last 20 years, the US Department of Justice has engaged in extensive investigations and litigation to denaturalize and expel war criminals from the Second World War era. It has also sought to exclude such persons from entry into the United States.
The report concludes: “This reflects a broader opinio juris
that no nation should provide sanctuary to persons guilty of war crimes.”