Global Policy Forum

By Jeremy Brecher and Brendan Smith

The US War Crimes Act of 1996 makes it a felony to commit grave violations of the Geneva Conventions. The Washington Post recently reported that the Bush administration is quietly circulating draft legislation to eliminate crucial parts of the War Crimes Act. Observers on The Hill say the Administration plans to slip it through Congress this fall while there still is a guaranteed Republican majority-perhaps as part of the military appropriations bill, the proposals for Guantánamo tribunals or a new catch-all "anti-terrorism" package. Why are they doing it, and how can they be stopped?

American prohibitions on abuse of prisoners go back to the Lieber Code promulgated by Abraham Lincoln in 1863. The first international Geneva Convention dates from the following year.

After World War II, international law protecting prisoners of war and all noncombatants was codified in the Geneva Conventions. They were ratified by the US Senate and, under Article II of the Constitution, they thereby became the law of the land.

Wishing to rebuke the unpunished war crimes of dictators like Saddam Hussein, in 1996 a Republican-dominated Congress passed the War Crimes Act without a dissenting vote. It defined a "war crime" as any "grave breach" of the Geneva Conventions. It thereby advanced a global trend of mutual reinforcement between national and international law.

The War Crimes Act was little noticed until the disclosure of Alberto Gonzales's infamous 2002 "torture memo." Gonzales, then serving as presidential counsel, advised President Bush to declare that the Geneva Conventions did not apply to people the United States captured in Afghanistan. That, Gonzales wrote, "substantially reduced the threat of domestic criminal prosecution under the War Crimes Act."

Noting that the statute "prohibits the commission of a 'war crime' by or against a US person, including US officials," he warned that "it is difficult to predict the motives of prosecutors and independent counsels who may in the future decide to pursue unwarranted charges." The President's determination that the Geneva Conventions did not apply "would provide a solid defense to any future prosecution."

Unfortunately for top Bush officials, that "solid defense" was demolished this summer when the Supreme Court in Hamdan v. Rumsfeld ruled that the Geneva Conventions were indeed the law of the land.

The Court singled out Geneva's Common Article 3, which provides a minimum standard for the treatment of all noncombatants under all circumstances. They must be "treated humanely" and must not be subjected to "cruel treatment," "outrages upon personal dignity, in particular humiliating and degrading treatment," or "the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples."

As David Cole of the Georgetown University Law Center pointed out in the August 10 issue of The New York Review of Books, the Supreme Court's decision in Hamdan v. Rusmfeld "suggests that President Bush has already committed a war crime, simply by establishing the [Guantánamo] military tribunals and subjecting detainees to them" because "the Court found that the tribunals violate Common Article 3-and under the War Crimes Act, any violation of Common Article 3 is a war crime." A similar argument would indicate that top US officials have also committed war crimes by justifying interrogation methods that, according to the testimony of US military lawyers, also violate Common Article 3.

Lo and behold, the legislation the Administration has circulated on Capitol Hill would decriminalize such acts retroactively. Eugene Fidell, president of the National Institute of Military Justice, told the Associated Press on August 10, "I think what this bill can do is in effect immunize past crimes. That's why it's so dangerous." Human rights attorney Scott Horton told Democracy Now! on August 16 that one of the purposes of the proposed legislation is "to grant immunity or impunity to certain individuals. And these are mostly decision-makers within the government."

The Coming Debate

Bush officials have not acknowledged that one of their real motives for gutting the War Crimes Act is to protect themselves from being prosecuted for their own crimes. But so far they have apparently offered only one other reason for tampering with the law: The existing law, especially the Geneva language prohibiting "outrages upon personal dignity, in particular humiliating and degrading treatment," is too vague to enforce. (Perhaps the Bush Administration should declare the US Constitution's ban on "cruel and unusual punishment" as too vague to enforce as well.)

Fidell noted in an August 9 Washington Post article that military law includes many terms like "dereliction of duty," "maltreatment" and "conduct unbecoming an officer" that may appear vague but that are nonetheless enforceable. The Army Field Manual bars cruel and degrading treatment. When Attorney General Gonzales recently testified at a Senate Armed Services Committee hearing that "outrages upon personal dignity" was too ambiguous, Senator John McCain stated that top military lawyers see no problem in complying with Common Article 3.

The arguments for preserving the War Crimes Act and rejecting the Bush amendments, in contrast, are multiple and overwhelming:

1. Commitment to the Geneva Conventions protects US service people from future retaliation.

As former Secretary of State Colin Powell has argued, abandoning the Geneva Conventions would put US soldiers at greater risk, would "reverse over a century of US policy and practice in supporting the Geneva Conventions" and would "undermine the protections of the law of war for our troops, both in this specific conflict [Afghanistan] and in general."

2. The War Crimes Act will prohibit "torture-lite" in the future.

According to Scott Horton, the proposed legislation is "designed to provide an OK to certain techniques which fall just short of torture that are being used by the CIA," including "waterboarding, longtime standing and hypothermia," techniques that have been "linked to severe injuries and fatalities."

3. The War Crimes Act will prohibit future Abu Ghraib-type outrages.

The Bush Administration's legislation would remove the prohibition on "outrages upon personal dignity, in particular humiliating and degrading treatment." Repealing the War Crimes Act, the Washington Post's R. Jeffrey Smith reported, is decriminalizing the forced nakedness, use of dog leashes and wearing of women's underwear that shocked the world at Abu Ghraib prison.

Derek P. Jinks an assistant law professor at the University of Texas, author of a forthcoming book on the Geneva Conventions, said in an August 9 Washington Post article that the "entire family of techniques" used to degrade, humiliate and coerce prisoners at Abu Ghraib and Guantánamo "is not addressed in any way, shape or form" in the Bush Administration's proposal. Retired Army Lieut. Col. Geoffrey Corn, until recently chief of the war law branch of the Army's Office of the Judge Advocate General, said in the same article, "This removal of [any] reference to humiliating and degrading treatment will be perceived by experts and probably allies as 'rewriting'" the Geneva Conventions.

This "rewriting" could have very concrete ramifications in practice. The international tribunal prosecuting war crimes in the former Yugoslavia deemed acts like placing prisoners in "inappropriate conditions of confinement," forcing them to urinate or defecate in their clothes, and threatening them with "physical, mental, or sexual violence" to be humiliations, degrading treatment and outrages. The proposed changes to the War Crimes Act would indicate that it is not a crime for Americans to conduct such acts.

4. Gutting the War Crimes Act will promote the perception of the United States as an outlaw country.

As a letter signed by sixteen members of Congress recently said, such legislation "would harm the reputation of the United States as a leader promoting and protecting human rights." What would be more deserving of scorn than a country that lets potential war-crime defendants repeal the very law under which they might be prosecuted?

5. The Bush legislation unfairly exempts high government officials from the very war crimes charges they are leveling against lowly "grunts."

Since the start of the Iraq War there have been more than thirty prosecutions under the military law that prohibits war crimes, with many more pending. But they have all prosecuted low-level military personnel. Gutting the War Crimes Act would leave the military "bad apples" at the bottom subject to prosecution but would let the civilian "bad apples" at the top evade all responsibility.

As Horton points out, the Uniform Code of Military Justice already incorporates the Geneva Convention rules, but it does not apply "to Donald Rumsfeld or Stephen Cambone or to people in the White House." The point of the War Crimes Act is that it "spreads the application of the Geneva Conventions the next level up to civilians, and particularly to civilian policymakers." From the beginning, the "prosecutorial focus" of the War Crimes Act "was intended to provide deterrence at that level." Repealing it undermines the fundamental principle of equal justice under law.

6. Preserving the War Crimes Act is part of reasserting the rule of law in America.

The War Crimes Act has been a central focus of the Bush Administration's scorn for all Constitutional limits on the power of the President and the executive branch. It was the idea that the President could by fiat declare US and international law null and void that animated the Gonzales torture memo. It was this denial of constitutional limits that the Supreme Court resoundingly rebuked in Hamdan v. Rumsfeld. A rebuff to the Bush Administration's attack on the War Crimes Act is a reassertion of those constitutional limits.

The War Crimes Act can be a bridge to a more just and peaceful world. The incorporation of the Geneva Conventions' prohibitions on war crimes into national law affirms America's commitment to international law. It embodies an implementation of the global heritage of the Nuremberg trials, the UN Charter and the Geneva Conventions. It embeds that tradition within our own national law.

In the wake of World War II, Justice Robert Jackson, chief American prosecutor at the Nuremberg Tribunal, observed that "the ultimate step in avoiding periodic wars, which are inevitable in a system of international lawlessness, is to make statesmen responsible to law." Making statesmen responsible to law is what the War Crimes Act is all about.

Defending the Law

The arguments for preserving the War Crimes Act are conclusive (except perhaps to those who might face criminal prosecution under them). Indeed, the Administration's decision to gut the War Crimes Act is a gift to those who want to see American statesmen held accountable to national and international law. It suggests that the Bush Administration itself recognizes the criminality of many of its actions. And it shows in the sharpest relief why the War Crimes Act is needed.

But, at least for the moment, Bush's Republican allies still control both houses of Congress; they are in a position to slip a repeal of the War Crimes Act into any piece of legislation they choose. Massachusetts Democrat Ed Markey, senior member of the House Committee for Homeland Security, told The Nation, "The Bush Administration and the GOP leadership in Congress is trying to quietly excuse and even codify cruel and inhuman treatment of prisoners in US custody, at secret CIA prisons abroad and even the abhorrent practice of extraordinary rendition [the outsourcing of torture and other cruel treatment to other countries]."

While the Administration has been lining up its ducks, the campaign to save the War Crimes Act has just begun. The advocacy group Just Foreign Policy has started an online campaign to save the War Crimes Act. "This is not an obscure point in the law. What's at stake here is whether, for example, the abuses of prisoners by sexual humiliation that shocked us at Abu Ghraib are clearly illegal under US law," national coordinator Robert Naiman observes. "If we found these actions outrageous, we are obligated to tell our members of Congress to protect the law that bans them."

Markey adds, "Every American citizen should call the White House and their members of Congress because these changes being made in the dead of night could be the green light for other countries that capture American troops to treat them cruelly or torture them."