[House Report 104-698]
[From the U.S. Government Publishing Office]
104th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 104-698
_______________________________________________________________________
WAR CRIMES ACT OF 1996
_______
July 24, 1996.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______________________________________________________________________
Mr. Smith of Texas, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 3680]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 3680) 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, having considered the same, report
favorably thereon without amendment and recommend that the bill
do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for Legislation.............................. 2
Hearings......................................................... 9
Committee Consideration.......................................... 9
Vote of the Committee............................................ 10
Committee Oversight Findings..................................... 10
Committee on Government Reform and Oversight Findings............ 10
New Budget Authority and Tax Expenditures........................ 10
Congressional Budget Office Cost Estimate........................ 10
Inflationary Impact Statement.................................... 12
Section-by-Section Analysis and Discussion....................... 12
Agency Views..................................................... 12
Changes in Existing Law Made by the Bill, as Reported............ 16
Purpose and Summary
H.R. 3680, as reported by the Committee, carries out the
international obligations of the United States under the Geneva
Conventions of 1949 to provide criminal penalties for certain
war crimes. The bill provides that whoever, whether inside or
outside the United States, commits a grave breach of the Geneva
Conventions (where the perpetrator or the victim is a member of
the armed forces of the United States or a national of the
United States) shall be fined or imprisoned for life or any
terms of years, or both, and if death results to the victim,
shall also be subject to the penalty of death.
Background and Need For Legislation
I. The geneva Conventions
Four Geneva Conventions for the Protection of Victims of
War, dated August 12, 1949, were ratified by the United States
on July 14, 1955:
Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field
(``Convention I'');
Convention for the Amelioration of the Condition of
Wounded, Sick and Shipwrecked Members of Armed Forces
at Sea (``Convention II'');
Convention Relative to the Treatment of Prisoners of
War (``Convention III''); and
Convention Relative to the Protection of Civilian
Persons in Time of War (``Convention IV'').
Deputy Under Secretary of State Robert Murphy testified in
1955 as to the purpose of the conventions:
The Geneva conventions are another long step forward
toward mitigating the severities of war on its helpless
victims. They reflect enlightened practices as carried
out by the United States and other civilized countries
and they represent largely what the United States would
do whether or not a party to the conventions. Our own
conduct has served to establish higher standards and we
can only benefit by having them incorporated in a
stronger body of conventional wartime law. * * *
We feel that ratification of the conventions now
before you would be fully in the interest of the United
States.1
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\1\ ``Geneva Conventions for the Protection of War Victims: Hearing
on Executives D, E, F and G Before the Senate Comm. on Foreign
Relations,'' 84th Cong., 1st Sess. 5 (1955).
Each of the four conventions denominates offenses known as
``grave breaches.'' Conventions I and II (protecting wounded
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and sick soldiers and sailors) state that:
Grave breaches * * * shall be those involving any of
the following acts, if committed against persons or
property protected by the Convention: wilful killing,
torture or inhuman treatment, including biological
experiments, wilfully 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.2
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\2\ Convention I, art. 50; Convention II, art. 51.
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Convention III (protecting prisoners of war) states that:
Grave breaches * * * shall be those involving any of
the following acts, if committed against persons or
property protected by the Convention: wilful killing,
torture or inhuman treatment, including biological
experiments, wilfully causing great suffering or
serious injury to body or health, compelling a prisoner
of war to serve in the forces of the hostile Power, or
wilfully depriving a prisoner of war of the rights of
fair and regular trial prescribed in this
Convention.3
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\3\ Convention III, art. 130.
Convention IV (protecting civilians in time of war) states
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that:
Grave breaches * * * shall be those involving any of
the following acts, if committed against persons or
property protected by the present Convention: wilful
killing, torture or inhuman treatment, including
biological experiments, wilfully causing great
suffering or serious injury to body or health, unlawful
deportation or transfer or unlawful confinement of a
protected person, compelling a protected person to
serve in the forces of a hostile Power, or wilfully
depriving a protected person of the rights of fair and
regular trial prescribed in the present Convention,
taking of hostages and extensive destruction and
appropriation of property, not justified by military
necessity and carried out unlawfully and
wantonly.4
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\4\ Convention IV, art. 147.
The four conventions require that signatory countries enact
appropriate implementing legislation criminalizing the
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commission of grave breaches:
The [signatory countries] 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 present
Convention[s] * * *.
Each [signatory country] shall be under the
obligation to search for persons alleged to have
committed, or to have ordered to be committed, such
grave breaches, and shall bring such persons,
regardless of their nationality, before its own courts.
It may also, if it prefers * * * hand such persons over
for trial to another [signatory country], provided such
[country] has made out a prime facie case.5
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\5\ Convention I, art. 49; Convention II, art. 50; Convention III,
art. 129; Convention IV, art. 146.
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II. Current Prosecutability Under United States Law of Individuals for
``Grave Breaches'' of the Geneva Conventions and the Impact of H.R.
3680
A. Implementing legislation
Despite ratifying the Geneva conventions, the United States
has never enacted legislation specifically implementing their
penal provisions. This was felt to be unnecessary, that
existing United States law provided adequate means of
prosecution. The Senate Committee on Foreign Relations stated
that:
The committee is satisfied that the obligations
imposed upon the United States by the ``grave
breaches'' provisions are such as can be met by
existing legislation enacted by the Federal Government
within its constitutional powers. A review of that
legislation reveals that no further measures are needed
to provide effective penal sanctions or procedures * *
*.6
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\6\ ``Geneva Conventions for the Protection of War Victims: Report
of the Comm. on Foreign Relations,'' Senate Exec. Rep. No. 9, 84th
Cong., 1st Sess. 27 (1955).
A review of current federal and state law indicates that
while there are many instances in which individuals committing
grave breaches of the Geneva conventions may already be
prosecuted, prosecution would be impossible in many other
situations.
B. Federal and State criminal statutes
Most acts considered grave breaches of the Geneva
conventions--murder, hostage-taking, etc.--would be punishable
by federal or state criminal law if committed within the United
States. When crimes which fall under the definition of grave
breaches occur outside of the United States, federal criminal
law allows for prosecution in certain instances:
Use of Weapon of Mass Destruction: Federal law provides for
criminal penalties for the use or attempted use of a weapon of
mass destruction against a U.S. national while such national is
outside the United States, or against property outside of the
United States which is owned, leased, or used by the United
States.7
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\7\ See 18 U.S.C. sec. 2332a (1994).
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Terrorism: Federal law provides for criminal penalties for
the killing of, attempted killing of, or conspiracy to kill a
U.S. national while such national is outside the United States
and where the killing is intended to coerce, intimidate, or
retaliate against a government or a civilian population.8
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\8\ See 18 U.S.C. sec. 2332 (1994).
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Torture: Federal law provides for criminal penalties for
the torture of, or attempted torture of, an individual outside
of the United States if the alleged perpetrator is a U.S.
national or is present in the United States (irrespective of
the nationality of the victim or alleged offender).9
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\9\ See 18 U.S.C. sec. 2340A (1994).
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Genocide: Federal law provides for criminal penalties for
killings and certain other offenses committed outside the
United States with the specific intent to destroy a national,
ethnic, racial or religious group when the offender is a
national of the United States.10
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\10\ See 18 U.S.C. sec. 1091 (1994).
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Killing of Protected Persons: Federal law provides for
criminal penalties for the killing or attempted killing of
internationally protected persons (heads of state and certain
representatives or employees of governments when not in their
home country, as provided by treaty) if the alleged offender is
present in the United States, regardless of the place where the
offense was committed or the nationality of the victim or
offender.11
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\11\ See 18 U.S.C. sec. 1116 (1994).
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Hostage Taking: Federal law provides for criminal penalties
for the seizure or detention of (or attempt to seize or detain)
a person followed by the threat to kill, injure, or continue to
detain that person in order to compel a third person or a
government to do or abstain from doing any act as a condition
for release. This applies to acts occurring outside the U.S. if
the offender or the persons seized is a U.S. national, the
offender is found in the United States or the government sought
to be compelled is the United States Government.12
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\12\ See 18 U.S.C. sec. 1203 (1994).
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The conduct these statutes proscribe would in many
instances be considered grave breaches of the conventions if
they took place in the context of armed conflict. However, many
crimes which would be considered grave breaches are not
encompassed by these statutes. For instance, the simple killing
of a prisoner of war would not be covered by any of the
statutes. They thus incompletely implement the Geneva
conventions.
C. Courts-martial
The Uniform Code of Military Justice grants courts-martial
jurisdiction to try individuals for violations of the laws of
war.13 Since the Geneva conventions are considered parts
of the law of war, courts-martial would seem to be a powerful
mechanism for the punishment of war crimes. Their limitation,
however, is that they apply to very circumscribed groups of
people: generally, members of the United States armed forces,
persons serving with or accompanying armed forces in the field,
and enemy prisoners of war.14 The most famous example of a
court martial for war crimes is probably that of William
Calley, who was prosecuted by court-martial for his part in the
Mai Lai massacre during the Vietnam War.15 A member of the
U.S. armed forces who commits a war crime is only subject to
court-martial for so long as he or she remains in the military.
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\13\ See 10 U.S.C. sec. 818 (1994).
\14\ See 10 U.S.C. sec. 802 (1994).
\15\ See United States v. Calley, 46 C.M.R. 1131 (1973).
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D. Military commissions
``Very little attention has been paid in recent years to
the possibility of using American military tribunals to enforce
the law of war.'' 16 In certain situations, military
commissions could be used to provide a mechanism for the
prosecution of war criminals.
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\16\ Robinson Everett, ``Possible Use of American Military
Tribunals to Punish Offenses Against the Law of Nations,'' 34 Va. J.
Int'l L. 289, 293 (1994).
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Military tribunals--or commissions--have been used widely
by the United States from the Mexican-American War to the Civil
War to World War II to prosecute war criminals and to provide a
system of justice in lands occupied by our armed forces.17
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17 See Madsen v. Kinsella, 343 U.S. 341, 346 n. 8. (1952).
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Military commissions have ``no statutory existence, though
[they are] recognized by statute law[:]'' 18
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18 Army Judge Advocate General Crowder in testimony before the
Senate Subcommittee on Military Affairs (64th Cong., 1st Sess.), quoted
in Madsen, 343 U.S. at 353. 10 U.S.C. sec. 821 preserves the
jurisdiction of military commissions.
[Congress] has left it to the President, and the
military commanders representing him, to employ the
commission, as occasion may require, for the
investigation and punishment of violations of the laws
of war and other offences not cognizable by court-
martial.19
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\19\ ``William Winthrop, Military Law and Precedents'' 831 (1920)
(footnote omitted).
The jurisdiction of military commissions has traditionally
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been thought of as limited:
[T]he classes of persons who in our law may become
subject to the jurisdiction of military commissions are
the following: (1) Individuals of the enemy's army who
have been guilty of illegitimate warfare or other
offences in violation of the laws of war; (2)
Inhabitants of enemy's country occupied and held by the
right of conquest; (3) Inhabitants of places or
districts under martial law; (4) Officers and soldiers
of our own army, or persons serving with it in the
field, who, in time of war, become chargeable with
crimes or offences not cognizable, or triable, by the
criminal courts or under the Articles of war.20
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\20\ Id. at 838.
Military commissions were most recently used during and
immediately following World War II to prosecute German and
Japanese war criminals and to provide a legal system for
occupied areas.21 American military commissions have
generally prosecuted individuals whose acts were committed in
lands occupied by our military,22 and have always been
used in instances where the United States was involved in
hostilities.
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\21\ See, e.g., Madsen (trial of American citizen who killed her
husband in occupied Germany); In Re Yamashita, 327 U.S. 1 (1946) (trial
of Japanese General for war crimes committed while in command of an
army group in the Philippines); Ex Parte Quirin, 317 U.S. 1 (1942)
(trial of German saboteurs who landed on Long Island).
\22\ An exception was Ex Parte Quirin, where the military
commission could by presidential proclamation try ``all persons who are
subjects * * * of any nation at war with the United States * * * and
who during time of war enter or attempt to enter the United States * *
* through coastal or boundary defenses, and are charged with committing
or attempting or preparing to commit sabotage, espionage, hostile or
warlike acts, or violations of the law of war * * * '' Ex Parte Quirin,
317 U.S. at 22-23. The Supreme Court in this case found that a military
commission could constitutionally try as war criminals German saboteurs
who landed on Long Island.
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Many gaps in federal law relating to the prosecution of
individuals for grave breaches of the Geneva conventions could
in principle be plugged by the formation of military
commissions. However, the Supreme Court condemned their breadth
of jurisdiction to uncertainty in Ex Parte Quirin, where it
stated that ``[w]e have no occasion now to define with
meticulous care the ultimate boundaries of the jurisdiction of
military tribunals to try persons according to the law of
war.'' 23
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\23\ Id., 317 U.S. at 45-46.
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E. Implementation of the Geneva conventions in other countries
A number of countries which are signatories to the Geneva
conventions, such as the United Kingdom,24 have enacted
penal sanctions for the commission of grave breaches of the
Geneva conventions. Other signatory countries, such as
Germany,25 have enacted legislation criminalizing certain
conduct contrary to their international treaty obligations
(presumably including the Geneva conventions).
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\24\ 5 and 6 Eliz. 2, ch. 52.
\25\ StGB, sec. 6, No. 9.
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F. Need for H.R. 3680
There are major gaps in the prosecutability of individuals
under federal criminal law for war crimes committed against
Americans. For example, what of American civilians subjected to
grave breaches of Convention IV--perhaps murder--in an armed
conflict overseas? What of American prisoners of war subjected
to grave breaches of Convention III--perhaps, again, murder?
Military commissions might be able to fill these gaps, at least
when the United States is involved in hostilities. However, the
extent to which commissions can be employed is unclear. Making
grave breaches of the Geneva conventions violations of federal
criminal law when the victims are American, as H.R. 3680 does,
would ensure that perpetrators of many types of major war
crimes against Americans would be prosecutable by the United
States.
H.R. 3680 would also fill another gap in current law. The
ability to court martial members of our armed forces who commit
war crimes ends when they leave military service. H.R. 3680
would allow for prosecution even after discharge. This may not
only be in the interests of the victims, but also of the
accused. The Americans prosecuted would have available all the
procedural protections of the American justice system. These
might be lacking if the United States extradited the
individuals to their victims' home countries for prosecution.
III. constitutional considerations
The constitutional authority to enact federal criminal laws
relating to the commission of war crimes is undoubtedly the
same as the authority to create military commissions to
prosecute perpetrators of these crimes. The Supreme Court
affirmed such authority in In Re Yamashita:
In Ex parte Quirin * * * we had occasion to consider
at length the sources and nature of the authority to
create military commissions for the trial of enemy
combatants for offenses against the law of war. We
there pointed out that Congress, in the exercise of the
power conferred upon it by Article I, sec. 8, cl. 10 of
the Constitution to ``define and punish * * * Offences
against the Law of Nations * * *,'' of which the law of
war is a part, had by the Articles of War * * *
recognized the ``military commission'' appointed by
military command, as it had previously existed in
United States Army practice, as an appropriate tribunal
for the trial and punishment of offenses against the
law of war.26
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\26\ 327 U.S. at 7.
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IV. administration requests that the scope of H.R. 3680 be broadened
A. Universal jurisdiction
H.R. 3680 is operative where the victim or the perpetrator
of a grave breach of the Geneva conventions is a member of the
armed forces of the United States or a national of the United
States.
The State Department and Defense Department have
recommended that H.R. 3680 be amended to provide for universal
jurisdiction--which would allow for criminal proceedings to be
brought against a war criminal for crimes taking place outside
of the United States where neither the victim nor perpetrator
are American, as long as the perpetrator is present in the
United States.27
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\27\ See letter from Barbara Larkin, Acting Assistant Secretary for
Legislative Affairs, U.S. Department of State, to U.S. Representative
Lamar Smith (May 17, 1996) and letter from Judith Miller, U.S.
Department of Defense, to U.S. Representative Bill McCollum (May 22,
1996).
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The Committee decided that the expansion of H.R. 3680 to
include universal jurisdiction would be an unwise at present.
Domestic prosecution based on universal jurisdiction could draw
the United States into conflicts in which this country has no
place and where our national interests are slight. In addition,
problems involving witnesses and evidence would likely be
daunting. This does not mean that war criminals should go
unpunished. There are ample alternative venues available which
are more appropriate. Prosecutions can be handled by the
nations involved or by international tribunal.28 If a war
criminal is discovered in the United States, the federal
government can extradite the individual upon request in order
to facilitate prosecution overseas. The Committee is not
presently aware that these alternative venues are inadequate to
meet the task.
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\28\ For instance, a tribunal has been set up by the Security
Council of the United Nations to try individuals for war crimes
committed during the civil war in the former Yugoslavia. See Margaret
Mikyung Lee, Raphael Perl and Steven Woehrel, ``CRS Report for
Congress--Bosnia War Crimes: The International Criminal Tribunal for
the Former Yugoslavia and U.S. Policy'' (1996).
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Finally, even if enacted, universal jurisdiction will in
all likelihood be purely symbolic. The Committee has been
informed that there has never been a single case of a signatory
country to the Geneva conventions exercising its own criminal
jurisdiction over an alleged war criminal on the basis of
universal jurisdiction.29
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\29\ See statement submitted to the Immigration and Claims
Subcommittee of the Judiciary Committee in connection with the
Subcommittee's June 12, 1996, hearing on H.R. 2587 by Alfred P. Rubin,
Distinguished Professor of International Law, the Fletcher School of
Law and Diplomacy, Tufts University.
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B. Additional treaties
The State Department and Defense Department have
recommended that certain other offenses should also be made
prosecutable by H.R. 3680: 30
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\30\ See letter from Barbara Larkin to Lamar Smith and letter from
Judith Miller to Bill McCollum.
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Violations of common article 3 of the Geneva
conventions.
Grave breaches of protocols to the Geneva conventions
when ratified by the United States; 31
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\31\ Presently, Protocol I (Protocol Additional to the Geneva
Conventions of 12 August 1949, and Relating to the Protection of
Victims of International Armed Conflicts) and Protocol II (Protocol
Additional to the Geneva Conventions of 12 August 1949, and Relating to
the Protection of Victims of Non-International Armed Conflicts) have
not been ratified by the United States.
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Violations of articles 23, 25, 27, and 28 of the
``Annex to the Hague Convention IV, Respecting the Laws
and Customs of War on Land.'' 32; and
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\32\ The United States ratified the convention on February 23,
1909.
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Certain violations of article 14 of the ``Protocol on
Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices as Amended on May 3,
1996, Annexed to the Convention on Prohibitions or
Restrictions on the Use of Certain Conventional Weapons
Which May Be Deemed to Be Excessively Injurious or to
Have Indiscriminate Effects'' when ratified by the
United States.
H.R. 3680 provides that, should the United States ratify
any protocols to the Geneva conventions, perpetrators of grave
breaches of such protocols may be prosecuted. As to the other
measures, with the exception of the ``Protocol on Prohibitions
or Restrictions on the Use of Mines'' (which the United States
has yet to ratify in its amended form), none require that
signatory countries enact penal sanctions against violators.
Because of the lack of exigency, the Committee will consider in
the future (as to those measures the United States has
ratified) the merits of extending the criminal sanctions of
H.R. 3680.
Hearings
The Committee's Subcommittee on Immigration and Claims held
one day of hearings on H.R. 2587, the predecessor bill to H.R.
3680, on June 12, 1996. Testimony was received from Michael
Matheson, Principal Deputy Legal Advisor, U.S. Department of
State; John H. McNeil, Senior Deputy General Counsel
(International Affairs and Intelligence), U.S. Department of
Defense; the Honorable Robinson O. Everett, Senior Judge, U.S.
Court of Appeals for the Armed Forces, Center on Law, Ethics,
and National Security at the Duke University School of Law;
Monroe Leigh, Steptoe and Johnson; and Mark S. Zaid, Law Office
of Mark S. Zaid. Additional material was received from Alfred
P. Rubin, the Fletcher School of Law and Diplomacy at Tufts
University.
Committee Consideration
On June 27, 1996, the Subcommittee on Immigration and
Claims met in open session and ordered reported the bill H.R.
3680, by a voice vote, a quorum being present. On July 16,
1996, the Committee met in open session and ordered reported
favorably the bill H.R. 3680 without amendment by a recorded
vote of 23 to 2, a quorum being present.
Vote of the Committee
Vote on Final Passage: Adopted 23 to 2.
AYES NAYS
Mr. Hyde Mr. Scott
Mr. Moorhead Ms. Waters
Mr. McCollum
Mr. Gekas
Mr. Coble
Mr. Smith
Mr. Schiff
Mr. Canady
Mr. Goodlatte
Mr. Buyer
Mr. Hoke
Mr. Bono
Mr. Heineman
Mr. Conyers
Mrs. Schroeder
Mr. Frank
Mr. Boucher
Mr. Reed
Mr. Nadler
Mr. Watt
Mr. Becerra
Ms. Lofgren
Ms. Jackson Lee
Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(C)(3) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the bill, H.R. 3680, the following
estimate and comparison prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 23, 1996.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed H.R. 3680, the War Crimes Act of 1996, as ordered
reported by the House Committee on the Judiciary on June 19,
1996. CBO estimates that enacting H.R. 3680 would not result in
any significant cost to the federal government. Because
enactment of H.R. 3680 could afford direct spending and
receipts, pay-as-you-go procedures would apply to the bill.
However, CBO estimates that any impact on direct spending and
receipts would not be significant.
H.R. 3680 would create a new federal criminal offense for
the commission of certain war crimes in violation of the Geneva
Conventions of 1949. Under the bill, the federal government
could prosecute members of the U.S. armed forces or U.S.
nationals who have allegedly committed certain war crimes such
as murder and torture. H.R. 3680 also would permit the
government to prosecute those individuals who commit war crimes
against members of the U.S. armed forces or U.S. nationals.
While current federal and state laws allow for the prosecution
of some of these war crime offenses, there are some limitations
in the existing laws. Thus, CBO expects that under H.R. 3680
the federal government would be able to pursue additional cases
that it otherwise would have been prevented from prosecuting.
Based on information from the Department of Defense, however,
CBO does not expect the federal government to pursue many
additional cases each year. Thus, CBO estimates that enacting
H.R. 3680 would not have a significant impact on the cost of
federal law enforcement activity.
Because those prosecuted and convicted of committing war
crimes could be subject to fines, the government might collect
additional fines if H.R. 3680 is enacted. Such collections are
likely to be negligible, however, because it is not likely that
the federal government would pursue many cases under the bill.
Any collections of such fines would be recorded in the budget
as governmental receipts, or revenues. They would be deposited
in the Crime Victims Fund and spent in the following year.
Because the increase in direct spending would be the same as
the amount of fines collected with a one-year lag, the
additional direct spending also would be negligible.
Section 4 of the Unfunded Mandates Reform Act of 1995
excludes from the application of that Act legislative
provisions that are necessary for the ratification or
implementation of international treaty obligations. The
provisions of H.R. 3680 fit within that exclusion because the
bill would implement penal provisions of the Geneva Conventions
of 1949.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Susanne S.
Mehlman.
Sincerely,
June E. O'Neill, Director.
Inflationary Impact Statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that H.R.
3680 will have no significant inflationary impact on prices and
costs in the national economy.
Section-by-Section Analysis
Section 1. Short title
The Act may be cited as the ``War Crimes Act of 1996.''
Section 2. Criminal penalties for certain war crimes
The bill creates a new Chapter 118 of title 18 of the
United States Code titled ``War Crimes,'' which contains a new
section 2401 titled ``War crimes.'' The section provides that
whoever, whether inside or outside the United States, commits a
grave breach of the Geneva Conventions in two specified
circumstances shall be fined under title 18 or imprisoned for
life or any term of years, or both, and if death results to the
victim, shall also be subject to the penalty of death. The two
circumstances are (1) the person committing the breach is a
member of the armed forces of the United States or a national
of the United States, and (2) the victim of the breach is a
member of the armed forces of the United States or a national
of the United States. ``Grave breach of the Geneva
Conventions'' means conduct defined as a grave breach in any of
the four international conventions relating to the laws of
warfare signed at Geneva on August 12, 1949, or any protocol to
the conventions to which the United States is a party.
The enactment of H.R. 3680 is not intended to affect in any
way the jurisdiction of any court-martial, military commission,
or other military tribunal under any article of the Uniform
Code of Military Justice or under the law of war or the law of
nations.
Agency Views
The comments of the Department of State and the Department
of Defense to H.R. 2587, the predecessor bill to H.R. 3680, are
as follows:
General Counsel of the
Department of Defense,
Washington, DC, May 22, 1996.
Hon. Bill McCollum,
Chairman, Subcommittee on Crime, Committee on the Judiciary, House of
Representatives, Washington, DC.
Dear Mr. Chairman: This is in response to your request for
the views of the Department of Defense on H.R. 2587. H.R. 2587
would create in title 18, United States Code, a new chapter 118
containing section 2401 dealing with war crimes. Section 2401
would make it an offense cognizable in federal district court
for any person to commit a grave breach of the 1949 Geneva
Conventions against a citizen of the United States or a member
of the Armed Forces of the United States. The term ``grave
breach'' is defined in the applicable Geneva conventions.
The Department of Defense supports the purpose behind H.R.
2587. We believe, however, that the jurisdictional provisions
should be broadened from the current focus on the nationality
of the victims of the war crime. Specifically, we suggest
adding two additional jurisdictional bases: (1) where the
perpetrator of a war crime is a United States national
(including a member of the Armed Forces); and (2) where the
perpetrator is found in the United States, without regard to
the nationality of the perpetrator or the victim. We also
suggest using the term ``national of the United States'' for
the term ``citizen of the United States'' (in proposed 18
U.S.C. 2401(a)), since national of the United States is used in
many places in title 18 of the United States Code, e.g., 18
U.S.C. 1203(c), 2280(e), 2281(d), 2331(2), and 3077(a)(A).
The first jurisdictional change would hopefully never be
required to be used. However, were a U.S. service member the
perpetrator of a war crime, such general federal jurisdiction
would be necessary to ensure that a former service member could
be prosecuted. See Toth v. Quarles, 350 U.S. 11 (1955) (no UCMJ
jurisdiction over former member of a military service). We note
in this regard that, under a Memorandum of Agreement between
the Department of Defense and the Justice Department, a current
member of the Armed Forces would be tried for a violation of
the War Crimes Act in a military court.
The second jurisdictional change is required in order to be
in compliance with our international obligations.
We further suggest that ``war crimes'' be defined to
encompass those activities prohibited by Articles 23, 25, 27
and 28 of the Annex to the Hague Convention IV, Respecting the
Laws and Customs of War on Land, signed 18 October 1907, as the
Geneva Conventions are built upon the Hague Conventions and do
not necessarily cover all the activity prohibited by the
articles of this Hague convention. In addition, we believe that
the provision should also cover violations of the rules of non-
international armed conflicts, e.g., civil wars, rebellions,
that are specified in common Article 3 of the Geneva
conventions.
To facilitate the Committee's review of this important
proposal, I have attached a redraft of this provision to
accomplish the above mentioned situations.
The Office of Management and Budget has advised this
Department that there is no objection to the submission of this
report from the standpoint of the Administration's program.
Sincerely,
Judith Miller.
Enclosure.
------
U.S. Department of State,
Washington, DC, May 17, 1996.
Hon. Lamar Smith,
Chairman, Subcommittee on Immigration and Claims, Committee on the
Judiciary, House of Representatives.
Dear Mr. Chairman: This letter sets forth the views of the
Department of State on H.R. 2587. H.R. 2587 would create in
title 18, United States Code, a new chapter 118 containing
section 2401 dealing with war crimes. Section 2401 would make
it an offense cognizable in federal district court for any
person to commit a ``grave breach of the Geneva conventions''
relating to the laws of warfare signed at Geneva 12 August
1949, or any protocol thereto to which the United States is a
party, against a citizen of the United States or a member of
the armed forces of the United States.
The Department of State supports the purpose behind H.R.
2587. We believe, however, that the provision should be
expanded also to apply to grave breaches committed by a member
of the armed forces of the United States or by any national of
the United States. (The term ``national of the United States,''
which is used many places in title 18, United States Code,
e.g., 18 U.S.C. 1203(c), 2280(e), 2281(d), 2331(2), 3077(a)(A),
would be more appropriate than ``citizen of the United
States.'') We note in this regard that once a person is no
longer a member of the armed forces of the United States, he/
she is no longer subject to the jurisdiction of the Uniform
Code of Military Justice, see Toth v. Quarles, 350 U.S. 11
(1955). Hence, any grave breach such an individual may have
committed could go unpunished.
We also believe that, in order to be in compliance with our
international obligations, jurisdiction should also exist when
the perpetrator of any grave breach of the Geneva conventions
is later found in the United States such activity was
committed.
We note that while the title of the proposed chapter 118 is
``War crimes,'' the provision's limitation to ``grave
breaches'' of the Geneva conventions potentially omits
important war crimes which we believe should be covered.
Accordingly, we suggest that the provision be expanded to cover
a more general category of ``war crimes,'' and that the phrase
``war crimes'' should be defined to include not only grave
breaches of the 1949 Geneva conventions and their protocols,
but also violations of the rules applicable in non-
international armed conflict, e.g., civil wars and other
internal conflicts, that are specified in common Article 3 of
the Geneva conventions. ``War crimes'' should also be defined
to include violations of other prohibitions on means and
methods of warfare that are contained in the Hague Convention
IV, Respecting the Laws and Customs of War on Land, signed 18
October 1907.
Finally, Protocol II (on landmines) to the Convention on
Conventional Weapons (to which the United States is a Party)
has recently been amended to require imposition of penal
sanctions against persons who, in relation to armed conflict
and contrary to the provisions of the Protocol, wilfully kill
or cause serious injury to civilians. Accordingly, to ensure
that the United States will be in compliance with its
obligations under the revised Protocol when it is ratified by,
and enters into force for, the United States, the provision
should also cover such offenses.
To facilitate the Subcommittee's review of this important
proposal, we have attached a redraft of this provision to
address the above mentioned concerns.
The Office of Management and Budget advises that from the
standpoint of the Administration's program there is no
objection to the submission of this report.
I hope this information is useful to you. Please do not
hesitate to call if we can be of further assistance.
Sincerely,
Barbara Larkin,
Acting Assistant Secretary,
Legislative Affairs.
Enclosure: As stated.
Administration Proposed Revision
SEC. . CRIMINAL PENALTIES FOR CERTAIN WAR CRIMES.
(a) In General.--Title 18, United States Code, is amended
by inserting after chapter 117 the following new chapter:
``CHAPTER 118--WAR CRIMES
``Sec.
``2401. War crimes.
``Sec. 2401. War crimes
``(a) In General.--whoever, whether inside or outside the
United States, commits a war crime, shall be fined under this
title or imprisoned for life or any term or years, or both, and
if death results to the victim, shall be subject to the penalty
of death.
``(b) Jurisdiction.--There is federal jurisdiction over the
activity prohibited in subsection (a)--
``(1) if the perpetrator or the victim is a national
of the United States or a member of the armed forces of
the United States;
``(2) if the perpetrator is later found in the United
States after such activity is committed; or
``(3) if such activity occurs within the United
States.
``(c) Definitions.--As used in this chapter, the term--
``(1) `national of the United States' has the meaning
given in section 101(a)(22) of the Immigration and
Nationality Act (8 U.S.C. 1101(a)(22)).
``(2) `war crime' means any conduct--
``(A) 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;
``(B) prohibited by Articles 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;
``(C) 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
``(D) 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,
wilfully kills or causes serious injury to
civilians.
``(d) No prosecution of any activity prohibited in
subsection (a) shall be undertaken by the United States except
upon the notification in writing of the Attorney General or his
designee that in his judgment a prosecution by the United
States is in the public interest and necessary to secure
substantial justice.''.
(b) Clerical Amendment.--The table of chapters for part 1
of title 18, United States Code, is amended by inserting after
the item relating to chapter 117 the following new item:
``118. War crimes...............................................2401''.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3 of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
TITLE 18, UNITED STATES CODE
* * * * * * *
PART I--CRIMES
Chap. Sec.
1. General provisions............................................. 1
* * * * * * *
118. War crimes................................................... 2401
* * * * * * *
CHAPTER 118_WAR CRIMES
Sec.
2401. War crimes.
Sec. 2401. War crimes
(a) Offense.--Whoever, whether inside or outside the United
States, commits a grave breach of the Geneva Conventions, in
any of the circumstances described in subsection (b), shall be
fined under this title or imprisoned for life or any term of
years, or both, and if death results to the victim, shall also
be subject to the penalty of death.
(b) Circumstances.--The circumstances referred to in
subsection (a) are that the person committing such breach or
the victim of such breach 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) Definitions.--As used in this section, the term ``grave
breach of the Geneva Conventions'' means conduct defined as a
grave breach in any of the international conventions relating
to the laws of warfare signed at Geneva 12 August 1949 or any
protocol to any such convention, to which the United States is
a party.
* * * * * * *