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Ten years ago, Representative Walter
Jones (R-NC) introduced The War Crimes Act of 1996. This statute
was one of many in the mid-1990s devoted to the principle of
extraterritoriality: the extension of U.S. laws to other countries.
When applied, such laws subject foreign nationals to prosecution
if they treat a U.S. citizen or U.S. property in a way that violates
U.S. laws.
Behind the spate of extraterritorial
laws was congressional frustration that the "world's only
remaining superpower" could not extend its writ around the
globe. Mayhem ranging from genocides and acts of terror to massacres
and sheer brutality against prisoners and non-combatants regularly
occurred in the era's many civil wars-with the perpetrators often
escaping accountability for their actions.
Back in 1996, few anticipated
that The War Crimes Act, which entered law as 18 USC Sec. 2441,
would have the potential to boomerang and hit the United States
itself.
Holes in
International Law
In the 1990s, while international
law such as the Geneva Conventions forbade torture and other
crimes against humanity, no permanent judicial system or court
existed to bring war criminals to justice. (The International
Criminal Court did not come into being until 2002.) Under the
War Crimes Act, however, those who mistreated a U.S. national
could face trial within the United States-if subsequently found
and transferred to U.S. custody, presumably by extradition, but
not excluding "rendition" or covert operations by the
CIA or U.S. Special Forces.
At the Pentagon, senior uniformed
lawyers proposed changing the law to apply to U.S. nationals
who committed war crimes as well as those who were victims of
such crimes. The military lawyers argued that by setting a high
standard for the humane treatment of detainees held by the United
States, the Pentagon could demand reciprocal humane treatment
for captured U.S. soldiers and other U.S. nationals held by an
enemy. This change was enacted in 1997.
Four years later, Walter Jones
was among the overwhelming majority in both houses of Congress
who voted for the post-September 11, 2001 "Authorization
to Use Military Force" legislation that the Bush White House
has used to justify its abuse of executive power. As a result
of the recent Supreme Court decision in Hamdan vs. Rumsfeld,
the attempts to circumvent international treaties on treatment
of combatants and other detainees arguably may have violated
18 USC Sec. 2441-especially if a link can be made between policy
formulation and actual abuses of international norms.
The law itself, one page long,
seems quite definitive. The first paragraph lists potential punishments,
which include the death penalty if the victim dies. The second
describes the "circumstances" of the offense: the perpetrator
or victim must be a U.S. national.
The third paragraph states
that "war crimes" are any conduct that constitutes
a "grave breach" of the Geneva Conventions or its protocols;
is prohibited by Articles 23, 25, 27, or 28 of the Fourth Hague
Convention Annex dealing with the law of land warfare; violates
Common Article 3 of the Geneva Conventions regarding non-international
armed conflict; or causes death or serious injury to civilians
through violating restrictions on the use of mines and other
devices.
Had any U.S. government official
entertained the thought that the Geneva Conventions could be
jettisoned because the "war on terror was unlike any war
ever fought before," the War Crimes Act as amended in 1997
should have been a red flag. But the administration's top lawyers
thought they could circumvent both the law and Common Article
3 by using the U.S. military base at Guantanamo Bay, Cuba as
the primary site for holding prisoners identified or thought
to be al-Qaida adherents.
Gonzales
Anticipates
Then White House Counsel and
now Attorney General of the United States Alberto Gonzales was
one who recognized the potential for prosecution under 18 USC
Sec. 2441-a view he expressed in a January 25, 2002 memo to President
Bush, one of many on this subject that went between the White
House, the Justice Department, the CIA, and the civilian leadership
of the Pentagon. These memos attempted to establish a rationale
permitting abusive and degrading treatment, including torture,
by creating "exempt" categories for detainees and "exempt"
areas in which prisons could be built and unregulated interrogations
conducted.
By affirming in its June 30,
2006 decision (Hamdan v. Rumsfeld) that Common Article
3 of the Geneva Conventions applied to detainees in the "war
on terror" and the jurisdiction of the federal courts to
hear cases involving detainee rights, the Supreme Court invalidated
most of the administration's "no-standards" interrogation
policy. But rather than bring policy-and practice-into line with
the international conventions that the United States had observed
up to September 11, 2001, the administration is now trying to
absolve itself ex post facto. It is pressuring Congress
to pass legislation that retroactively shields from possible
prosecution anyone who authorized or encouraged the use of coercion
during interrogations.
The new "standard"
for interrogation, according to media reports, would allow methods
that do not "shock the conscience." Such a standard
is not conducive to the rule of law. One wonders if this is the
equivalent of the military's "shock and awe" bombing
campaign against Iraq in March 2003. That, too, was an attempt
to short-circuit proven procedures and operational standards.
Its aftermath has been equally devastating to the principle of
accountability so vital to democracies.
So far, the administration
is stubbornly "staying the course" on its designation
of Guantanamo prisoners as "unlawful combatants" and
therefore not entitled to the protections of the Geneva Conventions.
However, under fire from allies and U.S. civil rights groups,
President Bush has directed that prisoners be accorded the same
rights and humane treatment specified in the Conventions. Should
the White House ever comply fully with the Supreme Court's decision,
the abuses committed by U.S. personnel during interrogation may
become fewer and less severe.
Prisoners finally charged with
a war crime will have to wait for another Supreme Court decision,
one that compels the administration to restore procedural rights
that it does not want to accord to men who violate international
standards of conduct.
Until then, those who are charged
with violating international standards of conduct will remain
in the hands of those who don't recognize international standards
of conduct.
Dan Smith is a military affairs analyst for
Foreign Policy In Focus, a
retired U.S. Army colonel, and a senior fellow on military affairs
at the Friends Committee on National Legislation. Email at dan@fcnl.org or blog "The
Quakers' Colonel."
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