Narrowing US War Crimes Law: Having Our Cake and Eating It Too?

JURIST Contributing Editor David Crane of Syracuse University College of Law, a former judge advocate who helped develop and teach the US Department of Defense Law of War Program for almost 20 years, says that US Attorney General Alberto Gonzales fails to understand that narrowing the scope of liability for US personnel under the War Crimes Act, however attractive to the current administration, could end up harming American troops and further lowering America's moral standing in the war against terror...



As the Bush Administration fumbles about seeking, with gritted teeth, a legal way to detain human beings without charge for long periods of time in Guantanamo and elsewhere in Europe in light of the recent Supreme Court decision in Hamdan [1], attempts are also being made to modify the War Crimes Act of 1996, carving out from that act Americans who allegedly are or have bumped up against its sanctions for "outrages of personal dignity", in violation of "Common Article 3".[2] Any outrages, as such, can be construed as war crimes and are punishable both under international law and our own domestic law either through the Uniform Code of Military Justice or the said War Crimes Act.[3]

The Judge Advocate Generals of all the services agree that some of the techniques and policies sanctioned by the current administration violate Common Article 3.[4] On August 2, 2006, Major General Scott Black, the Judge Advocate General of the Army and a former classmate, stated at a hearing related to the administration's plan to provide some type of forum for the detainees at Guantanamo: "The United States should be the example of the world, sir".[5] He is absolutely correct.

Looking back ten years to its entry into law, it was never intended by the drafters of the War Crimes Act that it could be used against American soldiers for their alleged crimes. It was a legal tool to go after those who committed war crimes against Americans, particularly our fighting men and women. Ten years ago, America's armed forces followed the laws of armed conflict. Their military chain of command held their soldiers to a high standard in following the law. The Department of Defense's Law of War Program, so meticulously put together after the tragedy of the My Lai massacre during the Vietnam War, was emulated by professional armies around the world. It was unthinkable that we would conduct operations that even came close to a violation of the laws of war. We were universally admired for this policy. We held the moral high ground then. No longer.

How low the country has sunk legally and morally in waging this war, due to the naïve guidance of the Attorney General of the United States, who characterized the Geneva Conventions as "quaint" during the review of legal policy in handling the war on terror a few years ago. Statements coming out of the Bush administration at that time, such as "the rules have changed", "they'll have flies on their eyeballs", and "we want them dead or alive", permeated downward to the war fighters in Afghanistan and Iraq. Ignoring warnings by both military and civilian lawyers within the Departments of Defense and some at State, detention and interrogation policies were crafted which have now been found, for all practical purposes, to be in violation of the laws of armed conflict.

As a result of this command climate that permeated down from our political leadership, tragedies took place at Abu Ghraib, Haditha, Afghanistan, the camps of Eastern Europe, and at Guantanamo to name a few. War crimes are committed by individual soldiers, but most of the circumstances that create these scenarios are generally failures in command, top to bottom. Command responsibility for these alleged crimes has yet to be fully vetted, only lower ranks punished. The apparent climate of lawlessness has now opened up soldiers, interrogators, commanders, and contractors to potential criminal liability under the War Crimes Act of 1996. The administration wants to change all this.

Concerned that charges will be sought by prosecutors and independent counsel, all in the name of the law, the Attorney General is seeking to amend the War Crimes Act to carve out those who may have committed outrages upon personal dignity, among other possible war crimes. Coupled with the efforts to limit due process still for the detainees worldwide, despite Supreme Court concerns in Hamdan, this effort is indicative that this administration still feels that the rules have changed, that in many respects the Geneva Conventions are still quaint -- they want to "have their cake and eat it too".

Let us not underestimate how important the laws of armed conflict are in ensuring that we are conducting a just war. It is critical in achieving international political backing. We also have to understand that following the laws of armed conflict, still good law, and not necessarily in need of revision, saves American lives. Simply put, if we treat our enemies fairly, humanely, and under the rule of law, the enemy may be compelled to do the same. It literally puts the "ball in their court". Granted we are not fighting the type of combatant originally contemplated by the laws of armed conflict, but the rules are flexible enough for commanders and their judge advocates to conduct operations within its parameters and to ensure that all persons found on the battlefield, civilian, lawful combatants, and unlawful combatants are treated with the appropriate legal standard clearly set out in the Geneva Conventions. The standard is found in Common Article 3. Humane treatment is a minimum. Clearly the Attorney General, never having trained in or having practiced in this realm, does not understand and he is providing a disservice to this country. In the military, commanders and their soldier/lawyers, judge advocates, do understand. He needs to listen to the professionals in this area of the law, not the politicos.

The laws of armed conflict have worked for decades and have shaped our effective use of force under the law. Yet if this administration and its civilian lawyers persist in shaping and trying to change good law for their own political/personal reasons, these policies will cause us to sink lower in the eyes of the world. The world will question the moral and legal basis for the war on terror being waged almost by the United States alone, a huge mistake. For this we will put this decades long ideological struggle with international terrorists in jeopardy. The administration may want to "have our cake and eat it to", but if it changes the law to protect/cover itself from liability under the laws of war, we could well choke on the crumbs.

Notes

1. Hamdan v. Rumsfeld,, 548 U.S. ___,126 S. Ct. 2749 (2006), No. 05-184. Argued March 28, 2006 — Decided June 29, 2006.

2. The Geneva Conventions I-IV, each has the same or common Article 3. Some call it "a convention within the convention." As stated in Hamdan at 72: "Common Article 3's requirements are general, crafted to accommodate a wide variety of legal systems, but they are requirements nonetheless."

3. The Uniform Code of Military Justice, 10 USC Sec. 801 et seq. The War Crimes Act of 1996, 18 USC 2441.

4. Washington Post, July 28, 2006 at A6.

5. Washington Post, August 3, 2006 at A11.



David M. Crane is a professor at Syracuse University College of Law, and former founding Chief Prosecutor for the international war crimes tribunal in West Africa, called the Special Court for Sierra Leone, 2002-2005. He is a former paratrooper and judge advocate who helped develop and teach the US Department of Defense Law of War Program for almost 20 years.
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