Order Code RL33662
CRS Report for Congress
Received through the CRS Web
The War Crimes Act:
Current Issues
September 25, 2006
Michael John Garcia
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

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The War Crimes Act: Current Issues
Summary
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 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.
This report provides a brief overview of these issues as well recent legislative
proposals, including S. 3929 and S. 3930, which are both entitled the Military
Commissions Act of 2006, introduced by Senator Mitch McConnell on September
22, 2006; S. 3901, the Military Commissions Act of 2006, proposed by Senator John
Warner and voted out of the Senate Armed Services Committee on September 14,
2006; S. 3861, the Bringing Terrorists to Justice Act of 2006, and S. 3886, the
Terrorist Tracking, Identification, and Prosecution Act of 2006, both introduced by
Senator Bill Frist; and H.R. 6054, the Military Commissions Act of 2006, introduced
by Representative Duncan Hunter.

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Contents
The War Crimes Act (18 U.S.C. § 2441) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Implications of Hamdan v. Rumsfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Application of Common Article 3 to Al Qaeda . . . . . . . . . . . . . . . . . . . 2
Scope of Prohibited Conduct under the War Crimes Act
Relating to Common Article 3 Violations . . . . . . . . . . . . . . . . . . . 3
Liability under the War Crimes Act for U.S. Personnel on
Account of Pre-Hamdan Activities . . . . . . . . . . . . . . . . . . . . . . . . 4
Recent Legislative Activity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

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The War Crimes Act:
Current Issues
The 1949 Geneva Conventions proscribe certain conduct by High Contracting
Parties toward specified categories of vulnerable persons during armed conflict.1
High Contracting Parties are also required to provide effective penal sanctions
against any person who commits (or orders the commission of) a “grave breach” of
one of the Conventions, which is defined to include the wilful killing, torture or
inhuman treatment, and the causing of great suffering or serious injury to body or
health of protected persons.2 Congress approved the War Crimes Act of 1996 (P.L.
104-192) specifically to implement the Conventions’ penal requirements.3
The War Crimes Act (18 U.S.C. § 2441)
The War Crimes Act imposes criminal penalties against persons who commit
certain offenses under the laws of war, when those offenses are either committed by
or against a U.S. national or member of the U.S. Armed Forces. The Act applies
regardless of whether the offense occurs inside or outside the United States.
Offenders are subject to imprisonment for life or any term of years and may receive
the death penalty if their offense results in death to the victim.
At the time of enactment, the War Crimes Act only covered grave breaches of
the 1949 Geneva Conventions. During congressional deliberations, the Departments
of State and Defense suggested the Act be crafted to cover additional war crimes, but
1 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armed Forces in the Field, 6 U.S.T. 3114; Geneva Convention for the Amelioration of the
Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 6 U.S.T.
3217; Geneva Convention Relative to the Treatment of Prisoners of War, 6 U.S.T. 3316
[hereinafter “Third Geneva Convention”]; Geneva Convention Relative to the Protection
of Civilian Persons in Time of War, 6 U.S.T. 3516. All four Conventions entered into force
for the United States on Feb. 2, 1956.
2 E.g., Third Geneva Convention, supra note 1, at Articles 129-130.
3 When the Conventions were ratified in 1955, the Senate Foreign Relations Committee
believed that the obligations imposed by the Conventions’ “grave breach” provisions were
met by existing federal law and no further legislation was required. H.Rept. 104-698, at 3-4
(1996) (quoting Sen. Exec. Rep. No. 9, at 27 (1955)). However, in 1996 the House
Committee on the Judiciary found that in some cases the United States was legally unable
to prosecute persons for the commission of grave breaches of the Conventions, including
when members of the armed forces were found to have committed war crimes only after
their military discharge. Id. at 5.

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these recommendations were not immediately followed.4 However, Congress
amended the War Crimes Act the following year to cover additional war crimes that
had been suggested by the State and Defense Departments, including violations under
Article 3 of any of the 1949 Geneva Conventions (Common Article 3). Common
Article 3 is applicable to armed conflicts “not of an international character” and
covers persons taking no active part in hostilities, including those who have laid
down their arms or been incapacitated by capture or injury. Such persons are to be
treated humanely and protected from certain treatment, including “violence to life
and person,” “cruel treatment and torture,” and “outrages upon personal dignity, in
particular, humiliating and degrading treatment.”
Implications of Hamdan v. Rumsfeld
There has been controversy concerning whether activities by military and
intelligence personnel relating to captured Al Qaeda suspects might give rise to
prosecution under the War Crimes Act, particularly in light of the Supreme Court’s
ruling in the 2006 case of Hamdan v. Rumsfeld.5 The following sections provide
relevant background and briefly discuss possible implications that the Court’s ruling
may have on issues relating to the War Crimes Act.
Application of Common Article 3 to Al Qaeda. At least since early 2002,
the Bush Administration had taken the position that the Geneva Conventions did not
apply to members of Al Qaeda. Specifically, the Administration argued that the
Conventions are applicable to international armed conflicts between High
Contracting Parties and States that abide by Convention provisions, and therefore do
not cover non-State actors such as Al Qaeda. The Administration further alleged that
the conflict with Al Qaeda is international in scope, and Common Article 3
accordingly was inapplicable to the conflict because it only covers armed conflicts
“not of an international nature.”6
The issue in Hamdan primarily concerned military tribunals convened by
Presidential order to try detainees for violations of the laws of war. The Court held
that such tribunals did not comply with the Uniform Code of Military Justice or the
laws of war, including the Geneva Conventions. However, the Court’s interpretation
of Common Article 3 had broader implications for U.S. policy towards captured Al
Qaeda suspects. The Court rejected the Administration’s interpretation of Common
Article 3 as not covering Al Qaeda members, concluding that the provision affords
“some minimal protection, falling short of full protection under the Conventions, to
[any] individuals ... who are involved in a conflict in the territory of a signatory.”7
4 Id. at 12-16.
5 Hamdan v. Rumsfeld, 126 S.Ct. 2749 (2006).
6 See White House Memorandum, Humane Treatment of Taliban and Al Qaeda Detainees
(Feb. 7, 2002), available at [http://www.justicescholars. org/pegc/archive/ White_ House/
bush_memo_ 20020207ed.pdf].
7 Hamdan, 126 S.Ct. at 2796 (internal quotations omitted). In interpreting Common Article
3 as ensuring de minimis protections of Al Qaeda members captured by the United States
(continued...)

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In the aftermath of the Court’s ruling, the Department of Defense issued new
treatment guidelines concerning military detainees (including Al Qaeda members)
that required, at minimum, application of the standards articulated by Common
Article 3.8 Subsequently, fourteen high-level Al Qaeda operatives who had been held
abroad by the CIA and subjected to aggressive interrogation techniques were
transferred to DOD custody in Guantanamo Bay, Cuba.9
Scope of Prohibited Conduct under the War Crimes Act Relating to
Common Article 3 Violations. The United States has apparently never
prosecuted a person under the War Crimes Act. Perhaps as a result, there is some
question concerning the Act’s scope. Some have suggested that the War Crimes Act
be amended to specify that certain forms of treatment or interrogation violate the Act.
They argue that the scope of the War Crimes Act is ambiguous, particularly as it
relates to offenses concerning violations of Common Article 3. In a September 2006
address, President Bush suggested that some provisions of Common Article 3
provide U.S. personnel with inadequate notice as to what interrogation methods can
permissibly be used against detained Al Qaeda suspects and requested legislation
listing “specific, recognizable offenses that would be considered crimes under the
War Crimes Act.”10 On the other hand, some argue that amending the War Crimes
Act to cover specific acts would overly restrict the Act’s scope, making certain
unspecified conduct legally permissible even though it is as severe as conduct
expressly prohibited by the Act.
Although some types of conduct prohibited by Common Article 3 are easily
recognizable (e.g., murder, mutilation, the taking of hostages), it might not always
be obvious whether conduct constitutes impermissible “torture,” “cruel treatment,”
or “outrages upon personal dignity, in particular humiliating and degrading
treatment.” For discussion of U.S. and international jurisprudence and agency
interpretations concerning the scope of these terms, particularly as they relate to
interrogation techniques, see CRS Report RL32567, Lawfulness of Interrogation
7 (...continued)
in Afghanistan, the Court noted that the official commentaries accompanying Common
Article 3 made clear that “the scope of the Article must be as wide as possible.” Id. (quoting
Commentary: Geneva Convention Relative to the Treatment of Prisoners of War 36 (1960)).
In dissent, Justice Thomas (joined by Justice Scalia) disputed this reading, arguing that the
relevant commentary indicated that the purpose of Common Article 3 was principally to
furnish protections to persons involved in a civil war, rather than entities of international
scope such as Al Qaeda. Id. at 2846 (Thomas, J., dissenting). However, the Court appeared
to leave unresolved whether the Geneva Conventions apply with respect to Al Qaeda
suspects captured in places where no armed conflict is occurring. For background on the
Hamdan decision, see CRS Report RS22466, Hamdan v. Rumsfeld: Military Commissions
in the ‘Global War on Terrorism’, by Jennifer Elsea.
8 Dept. of Defense Detainee Directive, Definitions, Treatment Policy, and Compliance with
Laws of War, Sept. 5, 2006, available at [http://news.findlaw.com/hdocs/docs/dod/detainee
90506directive.html].
9 Presidential Address Creation of Military Commissions to Try Suspected Terrorists, Sept.
6, 2006, available at [http://www.whitehouse.gov/news/releases/2006/09/20060906-3.html].
10 Id.

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Techniques under the Geneva Conventions, by Jennifer Elsea; CRS Report RL33655,
Interrogation of Detainees: Overview of the McCain Amendment, by Michael John
Garcia; and CRS Report RL32438, U.N. Convention Against Torture (CAT):
Overview and Application to Interrogation Techniques, by Michael John Garcia.
Liability under the War Crimes Act for U.S. Personnel on Account
of Pre-Hamdan Activities. Prior to the Court’s ruling in Hamdan, the Bush
Administration did not apply Common Article 3 protections to captured Al Qaeda
agents. In some cases, such persons were allegedly subject to harsh treatment,
especially in the context of interrogation, that might not have complied with
Common Article 3 requirements. As a result, some have raised questions as to
whether U.S. personnel might be criminally liable under the War Crimes Act for the
pre-Hamdan treatment of some Al Qaeda detainees.
Although not immune from prosecution, U.S. personnel who could be charged
with violating the War Crimes Act would have several possible defenses to criminal
liability, so long as their activities were conducted with the authorization of the
Administration and under the reasonable (though mistaken) belief that their actions
were lawful. Section 1004(a) of the Detainee Treatment Act of 2005 (DTA, P.L.
109-148), enacted several months prior to the Hamdan decision, provides that
In any civil action or criminal prosecution against an officer, employee, member
of the Armed Forces, or other agent of the United States Government who is a
United States person, arising out of the officer, employee, member of the Armed
Forces, or other agent’s engaging in specific operational practices, that involve
detention and interrogation of aliens who the President or his designees have
determined are believed to be engaged in or associated with international terrorist
activity that poses a serious, continuing threat to the United States ... and that
were officially authorized and determined to be lawful at the time that they were
conducted, it shall be a defense that ... [the] agent did not know that the practices
were unlawful and a person of ordinary sense and understanding would not know
the practices were unlawful. Good faith reliance on advice of counsel should be
an important factor, among others, to consider in assessing whether a person of
ordinary sense and understanding would have known the practices to be
unlawful. Nothing in this section shall be construed to limit or extinguish any
defense or protection otherwise available ... or to provide immunity from
prosecution for any criminal offense by the proper authorities.
It is unclear whether a reviewing court would interpret this defense to apply
retroactively to conduct occurring before the DTA’s enactment in December 2005.
In addition to this statutory defense, a number of other legal defenses could be raised
by U.S. personnel charged with War Crimes Act offenses based on conduct that had
been authorized by the Bush Administration, assuming the defendants acted with
government sanction and/or had been erroneously informed by responsible

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authorities that their conduct was legal.11 Similar defenses may exist for military
personnel in courts martial proceedings.12
Recent Legislative Activity
A number of bills have been introduced in the 109th Congress in response to the
Hamdan decision, particularly as it relates to the establishment of military tribunals
to try detainees for violations of the laws of war. Some of these bills contain
provisions that would amend the War Crimes Act to more fully protect U.S.
personnel from criminal liability. These bills include S. 3929 and S. 3930, which are
both entitled the Military Commissions Act of 2006, introduced by Senator Mitch
McConnell on September 22, 2006; S. 3901, the Military Commissions Act of 2006,
proposed by Senator John Warner and voted out of the Senate Armed Services
Committee on September 14, 2006; S. 3861, the Bringing Terrorists to Justice Act
of 2006, and S. 3886, the Terrorist Tracking, Identification, and Prosecution Act of
2006, both introduced by Senator Bill Frist; and H.R. 6054, the Military
Commissions Act of 2006, introduced by Representative Duncan Hunter.13
11 Although “mistake of law” defenses are generally rejected, such defenses have been
recognized by courts in certain cases where defendants have acted with government sanction
or after being erroneously informed by responsible authorities that their conduct was legal.
These defenses can be divided into three overlapping categories: (1) defense of entrapment
by estoppel, available when a defendant is informed by a government official that certain
conduct is legal, and thereafter commits what would otherwise constitute a criminal offense
in reasonable reliance of this representation; (2) defense of public authority, available when
a defendant reasonably relies on the authority of a government official to authorize
otherwise illegal conduct, and the official has actual authority to sanction the defendant to
perform such conduct; and (3) defense of apparent public authority, which is recognized by
some (but not all) federal circuits, and is similar to the defense of public authority, except
that the official only needs to have apparent authority to sanction the defendant’s conduct.
United States v. Baptista-Rodriguez, 17 F.3d 1354, 1368 n. 18 (11th Cir. 1994). Unlike the
other defenses, the defense of entrapment by estoppel stems from the due process notions
of fairness, rather than from common law concerning contract, equity, or agency. United
States v. Austin, 915 F.2d 363, 366 (8th Cir. 1990).
12 While ignorance or mistake of law, including general orders or regulations, is not
generally available as a defense, “mistake of law may be a defense when the mistake results
from reliance on the decision or pronouncement of an authorized public official or agency.”
Manual for Courts Martial, Rules for Courts-Martial rule 916(l) (discussion). In the case
of war crimes, a defense based on superior orders is available only with respect to direct and
specific orders to commit an act constituting a war crime, and the defendant must
demonstrate both the existence of the order and his sincere and reasonable belief that the
order was lawful. See DAVID A. SCHLEUTER, MILITARY CRIMINAL JUSTICE § 2-4(F) (5th ed.
1999)(citing United States v. Huet-Vaughn, 43 M.J. 105 (1995)).
13 On September 6, 2006, the Bush Administration submitted draft legislation to Congress
that would authorize military commissions to try detainees, modify the War Crimes Act, and
specify conduct complying with Common Article 3. White House Press Release, Fact Sheet:
The Administration’s Legislation to Create Military Commissions (Sept. 6, 2006), available
at [http://www.whitehouse.gov/news/releases/2006/09/20060906-6.html]; Draft Legislation,
Military Commissions Act of 2006, available at [http://www.law.georgetown.edu/faculty/
nkk/documents/MilitaryCommissions.pdf]. S. 3861, S. 3886, and H.R. 6054 are largely
(continued...)

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All of the bills would amend the War Crimes Act provisions concerning
Common Article 3 so that only specified violations would be punishable (as opposed
to any Common Article 3 violation, as is the case under current law), including
committing, or attempting or conspiring to commit
! torture (defined in a manner similar to that used by the Federal
Torture Statute, 18 U.S.C. §§ 2340-2340A, in criminalizing torture);
! cruel treatment;
! the performing of biological experiments;
! murder;
! mutilation or maiming;
! intentionally causing serious bodily injury;
! rape;
! sexual assault or abuse; and
! the taking of hostages.
While the bills’ proposed modifications are largely similar, there are a few
notable differences. Whereas S. 3861, S. 3886, and H.R. 6054 would only prohibit
cruel treatment rising to the level of torture, and S. 3901 would more broadly prohibit
cruel treatment that violates the standards of the McCain Amendment ( i.e., cruel,
inhuman, or degrading treatment of the kind prohibited under the Fifth, Eighth, and
Fourteenth Amendments),14 the scope of cruel treatment prohibited by S. 3929/S.
3930 would likely fall somewhere between these two standards. S. 3929/S. 3930
defines “cruel treatment” in a manner that largely mirrors the definition of “torture”
contained in the Federal Torture Statute. However, whereas a person is criminally
liable for torture if he specifically intends to cause severe mental or physical pain and
suffering, under S. 3929/S. 3930 a person would be criminally liable for inflictions
of cruel treatment if he generally intended15 to cause serious mental or physical pain
and suffering to a person protected under Common Article 3.
S. 3929/S. 3930 further defines “serious mental pain and suffering” and “serious
physical pain and suffering”that rises to the level of cruel treatment. “Serious mental
pain and suffering” is defined by reference to the Federal Torture Statute’s definition
13 (...continued)
identical to the draft legislation. Reportedly, S. 3929/S. 3930 reflects an agreement reached
by the Bush Administration and certain lawmakers to resolve differences in the approach
taken by S. 3901 and that taken by S. 3861, S. 3886, and H.R. 6054. Kate Zernike & Sheryl
Gay Stolberg, Differences Settled in Deal Over Detainee Treatment, NY TIMES, Sept. 23,
2006, at A9.
14 There are many activities that, while unconstitutionally cruel, inhuman, or degrading,
nevertheless are probably not severe enough to rise to the level of torture. See generally
CRS Report RL32438, U.N. Convention Against Torture (CAT): Overview and Application
to Interrogation Techniques, by Michael John Garcia; and CRS Report RL33655,
Interrogation of Detainees: Overview of the McCain Amendment, by Michael John Garcia.
15 Specific intent is “the intent to accomplish the precise criminal act that one is later
charged with.” General intent usually “takes the form of recklessness (involving actual
awareness of a risk and the culpable taking of that risk) or negligence (involving
blameworthy inadvertence).” BLACK’S LAW DICTIONARY 813-814 (7th ed. 1999)

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of “severe mental pain and suffering” rising to the level of torture. Serious mental
pain and suffering constituting cruel treatment refers to pain and suffering arising
from
! the intentional infliction or threatened infliction of severe physical
pain or suffering;
! the administration, application, or threatened administration or
application of mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
! the threat of imminent death; or
! the threat that another person will imminently be subjected to death,
severe physical pain or suffering, or the administration or application
of mind-altering substances or other procedures calculated to disrupt
profoundly the senses or personality.
The type of mental pain and suffering constituting cruel treatment generally differs
from the type rising to the level of torture, in that it only needs to be of a serious and
non-transitory nature which need not be prolonged, as opposed to being of a severe
and prolonged nature. However, S. 3929/S. 3930 provides that with respect to
conduct occurring before legislation’s enactment, such pain and suffering must be of
a prolonged nature.
S. 3929/S. 3930 defines “serious physical pain or suffering” constituting cruel
treatment as actual bodily injury involving
! a substantial risk of death;
! extreme physical pain;
! a burn or physical disfigurement of a serious nature (other than cuts,
abrasions, or bruises); or
! significant loss or impairment of the function of a bodily member,
organ, or mental faculty.
Under U.S. jurisprudence, most or all of these activities are likely considered to be
of such severity as to constitute torture,16 at least in certain contexts, and could give
16 E.g., Al-Saher v. I.N.S., 268 F.3d 1143 (9th Cir. 2001) (finding that regular, severe
beatings and cigarette burns inflicted upon an Iraqi alien by Iraqi prison guards constituted
“torture,” qualifying the alien for relief from removal under immigration regulations
implementing U.N. Convention against Torture requirements); Mehinovic v. Vuckovic, 198
F. Supp. 2d 1322 (N.D. Ga. 2002) (finding that Bosnian-Serb soldier had committed
“torture” against non-Serbian plaintiffs who brought suit under the Torture Victims
Protection Act, 28 U.S.C. § 1350 note, as he had subjected them to acts of brutality
including tooth-pulling and severe beatings resulting in broken bones and disfigurement).
In a 2002 memorandum interpreting the Federal Torture Statute, the Department of Justice
suggested that physical pain amounting to torture must be “equivalent in intensity to the pain
accompanying serious physical injury, such as organ failure, impairment of bodily function,
or even death.” Memorandum from the Office of Legal Counsel, Department of Justice, to
Alberto R. Gonzales, Counsel to the President, Re: Standards of Conduct for Interrogation
under 18 U.S.C. §§ 2340-2340A (Aug. 1, 2002), available at [http://www.washington
(continued...)

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rise to criminal prosecution if the offender specifically intended to cause such injury.
However, S. 3929/S. 3930 would enable persons to be prosecuted for such conduct
(presuming it was directed against persons protected under Common Article 3), when
they caused such injury through reckless or criminally negligent action.17
The amendments made by S. 3929/S. 3930, S. 3861, S. 3886, and H.R. 6054
to the War Crimes Act would apply retroactively, possibly precluding prosecution of
personnel for some (but not all) conduct falling under the more general scope of the
earlier version of the Act. S. 3901 does not contain a similar provision, but unlike
the other bills, it would provide that the statutory defense contained in DTA § 1004
would cover any criminal prosecution under the War Crimes Act against U.S.
personnel relating to the sanctioned treatment of detainees, if such conduct occurred
between September 11, 2001, and December 30, 2005. All six bills would specify
that certain provisions of the War Crimes Act, as amended, are inapplicable with
respect to collateral damage or a lawful attack. S. 3929/S. 3930 and S. 3901 would
also specify that the provision of the War Crimes Act, as amended, related to hostage
taking does not apply to prisoner exchange during wartime. All six bills would also
amend the DTA to require the federal government to provide or employ counsel and
pay fees related to any prosecution or civil action against U.S. personnel for
authorized detention or interrogation activities. S. 3929/S. 3930 and S. 3901 would
also prohibit U.S. courts from using foreign or international sources to serve as the
basis for interpreting the provisions of the War Crimes Act, as amended, defining
“grave breaches” of Common Article 3.
In addition, all six bills would prevent persons from invoking the Geneva
Conventions as a source of rights in certain judicial proceedings. S. 3929/S. 3930
would prohibit the Conventions from being invoked in habeas or civil proceedings
to which the United States or a current or former agent of the United States is a party,
S. 3901 would more narrowly prevent the Conventions from being invoked in a civil
action against the United States or a U.S. agent, and S. 3861, S. 3886, and H.R. 6054
would more broadly prevent the Conventions from being invoked for any purpose in
a habeas or other court action.
16 (...continued)
post.com/wp-srv/nation/documents/dojinterrogationmemo20020801.pdf], at 1. This
memorandum was superceded by another DOJ memo in 2004. The 2004 DOJ memorandum
rejected the earlier memo’s findings to the extent that it treated severe physical suffering as
identical to severe physical pain, and concluded that “severe physical suffering” may
constitute torture under the federal torture statute even if such suffering does not involve
“severe physical pain.” Memorandum from the Office of Legal Counsel, Department of
Justice, to James B. Comey, Deputy Attorney General, Re: Legal Standards Applicable
Under 18 U.S.C. §§ 2340-2340A (Dec. 30, 2004), available at [http://www.usdoj.gov/
olc/dagmemo.pdf], at 10].
17 See supra, note 16.

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