United States of America
Practice Relating to Rule 88. Non-Discrimination
The US Field Manual (1956) restates common Article 3 of the 1949 Geneva Conventions.
The manual provides that the wounded and sick in the hands of one party to the conflict shall be cared for “without any adverse distinction founded on sex, race, nationality, religion, political opinions, or any other similar criteria”.
The manual also states:
Without prejudice to the provisions relating to their state of health, age and sex, all protected persons shall be treated with the same consideration by the Party to the conflict in whose power they are, without any adverse distinction based, in particular, on race, religion or political opinion.
The US Air Force Pamphlet (1976) provides that the provisions of common Article 3 of the 1949 Geneva Conventions “insure humane treatment to civilians and others who are hors de combat
, without regard to race, colour, religion, sex, birth, or wealth”.
The Pamphlet also stipulates that under the 1949 Geneva Convention IV, “any distinction in treatment based upon race, religion or political opinion is specially forbidden”.
The Pamphlet quotes Article 1 of the 1945 UN Charter and adds that the set of documents elaborated by the UN and the Geneva Conventions safeguard such fundamental freedoms as “freedom from discrimination based on race, sex, language, or religion”.
The US Instructor’s Guide (1985) restates the provisions of common Article 3 of the 1949 Geneva Conventions.
Under the US War Crimes Act (1996), violations of common Article 3 of the 1949 Geneva Conventions are war crimes.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established military commissions which had jurisdiction over offences such as “persecution on political, racial, national or religious grounds”.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established military commissions which had jurisdiction over offences such as “persecution on political, racial, national or religious grounds”.
In July 2006, the US Deputy Secretary of Defense issued a memorandum to senior military and civilian personnel in the Department of Defense (DoD) on the subject of common Article 3 to the 1949 Geneva Conventions and its application to the treatment of detainees:
The Supreme Court Hamdan v. Rumsfeld, 548 US 557, 29 June 2006] has determined that Common Article 3 to the Geneva Conventions of 1949 applies as a matter of law to the conflict with Al Qaeda. The Court found that the military commissions as constituted by the Department of Defense are not consistent with Common Article 3.
It is my understanding that, aside from the military commission procedures, existing DoD orders, policies, directives, execute orders, and doctrine comply with the standards of Common Article 3 … In addition, you will recall the President’s prior directive [President George W. Bush, Memorandum, Humane Treatment of Al Qaeda and Taliban Detainees, 7 February 2002] that “the United States Armed Forces shall continue to treat detainees humanely,” humane treatment being the overarching requirement of Common Article 3.
You will ensure that all DoD personnel adhere to these standards. In this regard, I request that you promptly review all relevant directives, regulations, policies, practices and procedures under your purview to ensure that they comply with the standards of Common Article 3.
In 2004, in the Demjanjuk case, the US Court of Appeals for the Sixth Circuit affirmed a ruling by the district court which revoked the US citizenship of the appellant, due to his participation in Nazi-sponsored acts of persecution while serving during World War II as an armed guard at Trawniki Concentration Camp and other places of persecution. The Court stated:
[T]he district court found that the Government has proven by clear, convincing, and unequivocal evidence that [the] Defendant assisted in the persecution of civilian populations during World War II, based on evidence that the Trawniki service pass was an authentic German wartime document issued to [the] Defendant sufficiently identifying him and establishing his presence at the Nazi training camp between 1942 and 1944. Demjanjuk 7.a [United States v. Demjanjuk, No. 1:99CV1193, 2002 WL 544622 (N. D. Ohio Feb. 21, 2002)]. … Given the credibility determination made with respect to the identification elements of the Government’s case, this Court agrees with the Government that the district court’s factual findings were not clearly erroneous.
The district court correctly ruled that voluntariness is not an element of an assistance-in-persecution charge under the DPA [Displaced Persons Act of 1948]. The Supreme Court has previously ruled that “an individual’s service as a concentration camp armed guard – whether voluntary or not – made him ineligible for a visa.” Fedorenko, 449 U.S. at 512. [Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981)] Additionally, a defendant need not engage in “personal acts” of persecution in order to be held ineligible for a visa, because an individual’s service in a unit dedicated to exploiting and exterminating civilians on the basis of race or religion constitutes assistance in persecution within the meaning of the DPA. United States v. Dailide, 227 F.3d 385, 390-91 (6th Cir. 2000).
Furthermore, the district court did not clearly err in concluding that [the] Defendant misrepresented and concealed his wartime residence and activities, which included his service at Trawniki, Sobibor, Majdenek, with the Guard Forces of the SS and Police Leader in Lublin District, and with the SS Death’s Head Battalion at Flossenburg Concentration Camp. This information was material because its disclosure would have precluded Defendant from being placed in the “of concern,” category under the DPA, thus affecting the disposition of his visa application as a “displaced person.” See Fedorenko
, 449 U.S. at 514–15. If [the] Defendant had disclosed the information regarding his service in the Austrian and German armies during his application process, the immigration officials would have naturally been influenced in their decision, because service in such armies leaves applicants ineligible under the DPA. Therefore, upon signing his Application for Immigration Visa, Defendant knowingly misrepresented material facts, leaving his entry to the United States unlawful and naturalization illegally procured.
In 2006, in the Kumpf case, the US Court of Appeals for the Seventh Circuit affirmed a ruling by the lower court which revoked the US citizenship of the appellant, due to his participation in Nazi-sponsored acts of persecution while serving during World War II as an armed SS guard at Sachsenhausen Concentration Camp and other places of persecution. The Court stated,
The Refugee Relief Act of 1953 provides that a person who “personally advocated or assisted” in persecution is ineligible for a visa. Pub.L. No. 83-203 § 14(a), 67 Stat. 400 (1953). The Refugee Relief Act added the word “personally.” The prior governing act, the Displaced Persons Act of 1948, which was amended in 1950, considered any person who “advocated or assisted” in persecution to be ineligible for a visa, regardless of whether he “personally” did so. Pub.L. No. 81-555 § 13, 64 Stat. 219 (1950). The amendment thus narrowed the class of potential immigrants who could be excluded based on their assistance in persecution. …
Under the narrower language of the Refugee Relief Act, Kumpf argues that his service in the Waffen SS does not constitute personal assistance in persecution, and therefore does not disqualify him from obtaining a visa. The Supreme Court described conduct that would satisfy the broader “assisting in persecution” under the Displaced Persons Act by stating:
an individual who did no more than cut the hair of female inmates before they were executed cannot be found to have assisted in the persecution of civilians. On the other hand, there can be no question that a guard who was issued a uniform and armed with a rifle and a pistol, who was paid a stipend and was regularly allowed to leave the concentration camp to visit a nearby village, and who admitted to shooting at escaping inmates on orders from the commandant of the camp, fits within the statutory language about persons who assisted in the persecution of civilians. Other cases may present more difficult line-drawing problems but we need decide only this case.
Fedorenko, 449 U.S. at 512 n. 34 … [Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981)] Thus, an armed guard who took direct action against prisoners unquestionably assisted in persecution. It is undisputed that persecution occurred at the locations where Kumpf served. The issue in this case, however, is whether Kumpf’s particular actions as a guard constituted “personal” assistance in the persecution under the Refugee Relief Act.
Kumpf emphasizes in his brief that he “never personally harmed any individual” and never “aimed or discharged his weapon at anyone.” He argues that his limited conduct cannot constitute personal assistance in persecution. This lack of affirmative acts, however, does not undermine the fact that he fulfilled his role as a guard. The Refugee Relief Act’s parameters are not limited to personally harming or personally shooting individuals; the language instead addresses personal assistance. Kumpf’s personal presence functioned to discourage escape attempts and maintain order over the prisoners. His participation was not through monetary contributions, mere membership, or other indirect actions. Rather, he presided over and witnessed the torture and murder of helpless people. Because no one tried to escape during his watch, he claims he did not have to shoot anyone. Nevertheless, his personal presence as an armed guard clearly assisted in the persecution of the prisoners. As the Eighth Circuit explained, “[t]he pertinent question is [ ] whether Friedrich ‘personally assisted’ on persecution, not whether he engaged in direct persecution.” Friedrich, 402 F.3d at 845. [United States v. Friedrich, 402 F.3d 842, (8th Cir.2005)] The Eighth Circuit concluded that “[b]y guarding the perimeter of the [ ] concentration camps to ensure that prisoners did not escape from these unspeakable conditions, Friedrich personally assisted in the persecution that occurred in those camps.” Id. at 846. We agree with this reasoning. While the precise parameters of personal assistance under the Refugee Relief Act have not been delineated by the courts, Kumpf’s own actions clearly constitute personal assistance in persecution. His claim of no affirmative or direct acts of harm does not alter this conclusion.
Kumpf next argues that his service in the Waffen SS was involuntary. He submits that the involuntariness of his service should be considered in determining his eligibility for a visa under the Refugee Relief Act. Even assuming that Kumpf served involuntarily, the Refugee Relief Act does not require a person to assist voluntarily in persecution. In the context of the Displaced Persons Act, courts have held that the voluntariness of the service is irrelevant. Fedorenko, 449 U.S. at 513, 101 S.Ct. 737 (“an individual’s service as a concentration camp armed guard –whether voluntary or involuntary – made him ineligible for a visa.”); Wittje, 422 F.3d at 489 [United States v. Wittje, 422 F.3d 479, (7th Cir.2005)] (“there is no voluntariness requirement in the plain language” of the Displaced Persons Act). Similarly, the plain language of the Refugee Relief Act lacks a voluntariness requirement.
Kumpf’s actions as an armed guard at Nazi concentration camps constitute personal assistance in persecution under the Refugee Relief Act. Because of this service, Kumpf was ineligible for a visa, making his entry into this country improper and his citizenship illegally procured. Denaturalization is therefore warranted. … Accordingly, we AFFIRM the judgment of the district court.
In 2008, in the Geiser case, the US Court of Appeals for the Third Circuit affirmed a ruling by the lower court which revoked the US citizenship of the appellant, due to his participation in Nazi-sponsored acts of persecution while serving during World War II as an armed SS guard at Sachsenhausen Concentration Camp and other places of persecution. The Court stated,
On April 9, 2004, the United States filed a complaint to revoke Geiser’s citizenship … The complaint alleged that Geiser’s service as an SS concentration camp guard rendered him ineligible for a visa under the RRA [Refugee Relief Act of 1953], which provides: “No visa shall be issued under this Act to any person who personally advocated or assisted in the persecution of any person or group of persons because of race, religion, or national origin.” RRA § 14(a). …
[T]he precise question at issue … [is] whether serving as a concentration camp guard constitutes “personally advocat[ing] or assist[ing] in … persecution.”
Geiser argues that RRA § 14(a) is silent as to the meaning of the term “persecution,” and that the definition of “persecution” is therefore ambiguous. …
In a case involving the denaturalization of a former Nazi, we defined “persecution” … United States v. Koreh, 59 F.3d 431, 440 (3d Cir. 1995). We said that persecution is “the infliction of sufferings, harm, or death on those who differ … in a way regarded as offensive or meriting extirpation[;] a campaign having for its object the subjugation or extirpation of the adherents of a religion.” Id. …
Under … [this] definition, the experiences of prisoners at Nazi concentration camps fit squarely within the plain meaning of “persecution.” Thus, the meaning of “persecution” is not ambiguous, even though the statute does not define the term. Indeed, Geiser concedes that Sachscnhauscn and Buchenwald [concentration camps] were “places of persecution.” This admission forecloses his argument that “persecution” is an ambiguous term in the context of this case, because even if it is, he agrees that the concentration camps where he was a guard were places of persecution.
[T]he Supreme Court and this Court have both acknowledged that the term “persecution” has gray boundaries where ambiguity may legitimately be found. Id.; Chen [Chen v. Ashcroft, 381 F.3d 221 (3d Cir. 2004)], at 232. However, these cases also recognize that certain conduct (guarding a concentration camp or forcing a woman to undergo an abortion) falls squarely within the definition of “persecution.” Geiser’s case presents an example of such conduct. It cannot be rationally argued that prisoners at Sachscnhauscn and Buchenwald were not persecuted within the plain meaning of that term. Therefore, the text of the RRA is not ambiguous due to the use of the term “persecution.”
Geiser’s conduct as an SS guard fits the plain meaning of “personally advocated or assisted in ... persecution.” Geiser stood watch at the perimeter of the concentration camps with instructions to fire his rifle if a prisoner tried to escape. Thus, his personal actions assisted in keeping the prisoners confined in the camps where they were persecuted. In addition, he marched prisoners to and from their work sites, and these personal actions assisted in coercing the prisoners into performing forced labor.
We conclude, as have other Courts of Appeals, that according to the plain meaning of the RRA, concentration camp guards “personally advocated or assisted in ... persecution.” RRA § 14(a).
We [therefore] conclude that … [a]s an armed concentration camp guard in World War II, Geiser “personally advocated or assisted in the persecution of [a] ... group of persons because of race, religion, or national origin.” RRA § 14(a). Therefore, we will affirm the District Court’s order granting the Government’s motion for summary judgment and revoking Geiser’s citizenship.
In 1987, the Deputy Legal Adviser of the US Department of State affirmed:
We support in particular the fundamental guarantees contained in article 75 [of the 1977 Additional Protocol I], such as the principle that all persons who are in the power of a party to a conflict and who do not benefit from more favourable treatment under the Conventions be treated humanely in all circumstances and enjoy, at a minimum, the protections specified in the Conventions without any adverse distinction based upon race, sex, language, religion or belief, political or other opinion, national or social origin, or any similar criteria.
According to the Report on US Practice, “Articles 4, 5 and 6 [of the 1977 Additional Protocol II] reflect general US policy on treatment of persons in the power of an adverse party in armed conflicts governed by common Article 3 [of the 1949 Geneva Conventions]”.
The US Field Manual (1956) restates Article 13 of the 1949 Geneva Convention IV.
The US Air Force Pamphlet (1976) refers to Article 27 of the 1949 Geneva Convention IV and states: “Any distinction in treatment based upon race, religion or political opinion is specifically forbidden.”
The US Field Manual (1956) provides that sick and wounded captives shall be provided with the same medical care as friendly sick and wounded. It also restates Article 12 of the 1949 Geneva Convention II.
The US Air Force Pamphlet (1976) states:
One of the important principles relating to wounded and sick requires medical care and humane treatment to friend and foe without distinction founded on sex, race, nationality, religion, political opinions or similar criteria.
The US Naval Handbook (1995) provides: “Wounded and sick personnel falling into enemy hands must be … cared for without adverse distinction.”
The US Naval Handbook (2007) states: “Wounded and sick personnel falling into enemy hands must be … cared for without adverse distinction along with the enemy’s own casualties.”
The US Field Manual (1956) provides: “All POWs [prisoners of war] shall be treated alike without any adverse distinction based on race, nationality, religious belief or political opinions, or any other distinction founded on similar criteria.”
The US Air Force Pamphlet (1976) prohibits any adverse distinction with regard to prisoners of war.
The US Naval Handbook (1995) provides: “When prisoners of war are given medical treatment, no distinction among them will be based on any grounds other than medical ones.”
The US Naval Handbook (2007) states: “Humane treatment is … [to] be afforded to all detained persons without adverse distinction based on race, color, religion or faith, sex, birth or wealth, or any other similar criteria”.
The Handbook also states: “When prisoners of war are given medical treatment, no distinction among them will be based on any grounds other than medical ones.”
The US Manual on Detainee Operations (2008) states:
DODD 2310.01E [Department of Defense Directive, The Department of Defense Detainee Program requires that all DOD [Department of Defense] personnel and contractors will apply, without regard to a detainee’s legal status, at a minimum, the standards articulated in Common Article 3 to the Geneva Conventions of 1949 …
Article 3 Common to the Geneva Conventions of 1949
In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities … shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.
The manual also states:
The detaining power is … prohibited from imposing any adverse distinctions within the detainee population based on religion. In this regard, it should be noted that in some situations, segregating the detainee population based on religious affiliation may be beneficial and therefore not prohibited, particularly when conflict has been based in part on religious affiliation.
In 2007, in the Khulumani case before the US Court of Appeals for the Second Circuit, in which various plaintiff representatives of apartheid victims appealed the decision of a lower court that had dismissed claims under the Alien Tort Claims Act (ATCA) and Torture Victim Protection Act (TVPA) made against various defendant corporations concerning alleged violations of international law, the Court of Appeals affirmed the lower court’s dismissal of the TVPA claims, but vacated portions of the lower court’s judgment dismissing the plaintiffs’ ATCA claims.
In a separate opinion, Judge Korman stated:
[T]he tenuous interest of the United States in the issues raised by these cases is also reflected in the fact that, under customary international law, we could not exercise subject matter jurisdiction over a cause of action against the primary tortfeasor – the officials of the Union of South Africa –or the foreign corporate defendants. This is so, because apartheid, however abhorrent it may have been, has not been regarded as an offense subject to the exercise of universal jurisdiction. This concept, as its name implies, “recognize[s] that international law permits any state to apply its laws to punish certain offenses although the state has no links of territory with the offense, or of nationality with the offender (or even the victim).” Restatement (Third) of Foreign Relations Law ß 404 cmt. a (1987); see also Matter of Extradition of Demjanjuk, 612 F. Supp. 544, 555–58 (N.D. Ohio 1985). Universal jurisdiction is dependent not only on “substantive agreement as to certain universally condemned behavior,” which transforms the behavior into a violation of customary international law, but also “procedural agreement that universal jurisdiction exists to prosecute a subset of that behavior.” Sosa, 542 U.S. at 762 (Breyer, J., concurring in part and concurring in the judgment).
There is no agreement with respect to the latter issue. Although the Restatement (Third) of Foreign Relations Law
cites racial discrimination, “when practiced systematically as a matter of state policy, e.g., apartheid,” as a violation of customary international law, id. ß 702 cmt. i
(emphasis deleted), it omits apartheid from the list of offenses subject to universal jurisdiction. Instead, the Restatement states that universal jurisdiction exists only for “certain offenses recognized by the community of nations as of universal concern, such as piracy, slave trade, attacks on or hijacking of aircraft, genocide, war crimes, and perhaps certain acts of terrorism.” Id. ß 404
. Indeed, while the Reporters of the Restatement observed that the International Convention on the Suppression and Punishment of the Crime of Apartheid, adopted
Nov. 30, 1973, 1015 U.N.T.S. 243 (the “Apartheid Convention”), provided for universal jurisdiction, they stated that it did so only “[a]mong [the] parties to the Convention.” Restatement (Third) of Foreign Relations Law ß 702
reporters’ note 7. See also
Antonio Cassese, Crimes Against Humanity
1 The Rome Statute of the International Criminal Court: A Commentary
353, 376 (Antonio Cassese et al., eds., 2002) (observing that the Rome Statute, enacted in 1998, is broader than customary international law and “expands general international law” insofar as it, inter alia
, “broadens the classes of conduct amounting to crimes against humanity” to include “the crime of apartheid”). Likewise, the European Commission, the executive body of the European Union, has stated explicitly that, while “apartheid is widely condemned by states … at least at present, it does not give rise to universal jurisdiction because, among other reasons, the [Apartheid Convention] … has not been widely ratified.” Br. for the European Commission as Amicus Curiae Supporting Neither Party, Sosa v. Alvarez-Machain, 542 U.S. 692, 124 S. Ct. 2739, 159 L. Ed. 2d 718
(No. 03-339), 2004 WL 177036, at 16 n.35. Another reason is that jurisdiction is limited to certain universally condemned crimes which “by their nature occur either outside of a State or where there is no State capable of punishing, or competent to punish, the crime (as in a time of war).” United States v. Yousef, 327 F.3d 56, 105 (2d Cir. 2003)