[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 
---------------------------------------------------------------------------
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 
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \9\ See 18 U.S.C. sec. 2340A (1994).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \12\ See 18 U.S.C. sec. 1203 (1994).
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------

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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    17 See Madsen v. Kinsella, 343 U.S. 341, 346 n. 8. (1952).
---------------------------------------------------------------------------
    Military commissions have ``no statutory existence, though 
[they are] recognized by statute law[:]'' 18
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \19\ ``William Winthrop, Military Law and Precedents'' 831 (1920) 
(footnote omitted).

    The jurisdiction of military commissions has traditionally 
---------------------------------------------------------------------------
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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \23\ Id., 317 U.S. at 45-46.
---------------------------------------------------------------------------

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).
---------------------------------------------------------------------------
    \24\ 5 and 6 Eliz. 2, ch. 52.
    \25\ StGB, sec. 6, No. 9.
---------------------------------------------------------------------------

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
---------------------------------------------------------------------------
    \26\ 327 U.S. at 7.
---------------------------------------------------------------------------

  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
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------

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
---------------------------------------------------------------------------
    \30\ See letter from Barbara Larkin to Lamar Smith and letter from 
Judith Miller to Bill McCollum.
---------------------------------------------------------------------------
          Violations of common article 3 of the Geneva 
        conventions.
          Grave breaches of protocols to the Geneva conventions 
        when ratified by the United States; 31
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
          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
---------------------------------------------------------------------------
    \32\ The United States ratified the convention on February 23, 
1909.
---------------------------------------------------------------------------
          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.
          * * * * * * *