The War Crimes Act: Current Issues

Publication Date: January 2009

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: International relations; Law and ethics

Type:

Abstract:

The War Crimes Act of 1996, as amended, makes it a criminal offense to commit certain violations of the laws of war when such offenses are committed by or against U.S. nationals or Armed Service members. Among other things, the Act prohibits certain violations of Common Article 3 of the 1949 Geneva Conventions, which sets out minimum standards for the treatment of detainees in armed conflicts of a non-international character. Common Article 3 prohibits protected persons from being subjected to violence, outrages upon personal dignity, torture, and cruel, humiliating, or degrading treatment. In the 2006 case of Hamdan v. Rumsfeld, the Supreme Court rejected the Bush Administration's long-standing position that Common Article 3 was inapplicable to the present armed conflict with Al Qaeda. As a result, questions have arisen regarding the scope of the War Crimes Act as it relates to violations of Common Article 3 and the possibility that U.S. personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda detainees.

Pursuant to the Military Commissions Act of 2006 (S. 3930; P.L. 109-XX [public law number not yet assigned]), approved by Congress in September 2006, the War Crimes Act criminalizes only those Common Article 3 violations labeled as "grave breaches." Previously, any violation of Common Article 3 constituted a criminal offense under the War Crimes Act. This report discusses current issues surrounding the War Crimes Act, including amendments made to it by the Military Commissions Act.