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| Long title | An Act To amend title 18, United States Code, to carry out the international obligations of the United States under the Geneva Conventions to provide criminal penalties for certain war crimes |
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| Enacted by | the104th United States Congress |
| Citations | |
| Public law | Pub. L. 104–192 (text)(PDF) |
| Statutes at Large | 110 Stat. 2104 |
| Codification | |
| Titles amended | 18 |
| U.S.C. sections created | 18 U.S.C. § 2441 renumbered from §2401 through theEconomic Espionage Act of 1996 §605(p)(1) |
| Legislative history | |
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| Major amendments | |
| Military Commissions Act of 2006 | |
TheWar Crimes Act of 1996 is a United States federal statute that defines awar crime to include a "grave breach of theGeneva Conventions", specifically noting that "grave breach" should have the meaning defined in any convention (related to thelaws of war) to which theUnited States is a party. The definition of "grave breach" in some of the Geneva Conventions have text that extend additional protections, but all the Conventions share the following text in common: "... committed against persons or property protected by the Convention: willful killing,torture orinhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health."
The law applies if either the victim or the perpetrator is a national of the United States or a member of theU.S. Armed Forces. The penalty may belife imprisonment ordeath. The death penalty is only invoked if the conduct resulted in the death of one or more victims.
The Act was passed with overwhelming majorities by theUnited States Congress and signed into law byPresidentBill Clinton.
The law criminalized breaches of the Geneva Conventions so that the United States could prosecute war criminals, specificallyNorth Vietnamese soldiers whoimprisoned and tortured U.S. military personnel during theVietnam War. TheDepartment of Defense "fully support[ed] the purposes of the bill,"[1] recommending that it be expanded to include a longer list of war crimes. Because the United States generally followed the Conventions, the military recommended making breaches by U.S. military personnel war crimes as well "because doing so set a high standard for others to follow."[1] The bill passed byunanimous consent in the Senate and by avoice vote in the House,[1] showing that it was entirely uncontroversial at the time.
Ten years later, theUnited States Supreme Court ruled inHamdan v. Rumsfeld[2] thatCommon Article 3 of the Geneva Conventions applied to thewar on terrorism, with the unstated implication that anyinterrogation technique that violated Common Article 3 constituted war crimes.[3] The possibility that American officials and military personnel could be prosecuted for war crimes for committing the "outrages upon personal dignity, in particular humiliating and degrading treatment"[4] prohibited by the Conventions led to a series of proposals to make such actions legal in certain circumstances, which resulted in theMilitary Commissions Act of 2006.
White House officials were concerned that they and other U.S. officials could be prosecuted under the War Crimes Act of 1996 for the U.S. treatment of detainees after theSeptember 11 attacks for violations of the Geneva Conventions. In a January 2002 memorandum to the president, then-White House CounselAlberto Gonzales authored a controversial memo that explored whether Common Article 3 of the Geneva Conventions applied toAl Qaeda andTalibancombatants captured during thewar in Afghanistan and held in detention facilities around the world, includingCamp X-Ray inGuantanamo Bay,Cuba. The memo made several arguments both for and against providing Common Article 3's protections to Al Qaeda and Taliban combatants. He concluded that Common Article 3 was outdated and ill-suited for dealing with captured Al Qaeda and Taliban combatants. He described as "quaint" the provisions that require providing captured Al Qaeda and Taliban combatants "commissary privileges, scrip, athletic uniforms, and scientific instruments". He also argued that existing military regulations and instructions from the President were more than adequate to ensure that the principles of the Geneva Conventions would be applied. He also argued that undefined language in the Geneva Conventions, such as "outrages upon personal dignity" and "inhuman treatment", could make officials and military leaders subject to the War Crimes Act of 1996 if mistreatment was discovered.[5]
The adoption of theMilitary Commissions Act of 2006 marked grave abuses of Common Article 3 to only include torture, cruel or inhumane treatment,murder,mutilation ormaiming, intentionally causing serious bodily harm,rape,sexual assault or abuse, and thetaking of hostages, thereby limiting the scope of the original law.
On December 6th, 2023, the first charges under this law were unsealed by theDepartment of Justice in a press conference byAttorney GeneralMerrick Garland. The charges are against four Russian soldiers. The charges are based around a case as a result of theRusso-Ukrainian War, in which an American citizen living in Ukraine was detained by Russian soldiers for a period of 10 days in April 2022, during which he was allegedly tortured.[6][7] However, the American government has no means to arrest the people charged.
In other words, with the Hamdan decision, U.S. officials found to be responsible for subjecting war on terror detainees to torture, cruel treatment or other 'outrages upon personal dignity' could face prison or even the death penalty.