JURIST Guest Columnist David Scheffer, former US Ambassador at Large for War Crimes Issues (1997-2001), now at Northwestern University School of Law, says that the new "compromise" language on detainee treatment included in the latest version of the military commissions bill strips whole categories of common Article 3 Geneva Convention violations from the federal War Crimes Act, sidesteps judicial review, and invites US adversaries to treat potential US captives more severely…

The so-called “compromise” legislation between the Bush Administration and key Republican members of Congress concerning the enforcement of common Article 3 of the 1949 Geneva Conventions significantly weakens existing law, censors the federal judiciary in its deliberative and drafting responsibilities, and invites dangerous reciprocal and retaliatory measures by foreign governments to the detriment of U.S. personnel engaged in or responsible for interrogations of foreign detainees and any U.S. personnel who may be captured.

The War Crimes Act of 1996, as amended in 1997 to incorporate violations of common Article 3 (18 U.S.C. §2441), implements the 1949 Geneva Conventions into federal criminal law and, among other war crimes, makes any violation of common Article 3 a war crime punishable by fine or imprisonment for life or any term of years, or both. If death results to the victim, the perpetrator also is subject to the penalty of death. The War Crimes Act does not, and does not need to, define violations of common Article 3 as “grave breaches” of the 1949 Geneva Conventions, but simply converts such violations into punishable crimes under U.S. law. A similar method was employed in Article 8(2)(c) of the Rome Statute of the International Criminal Court, which criminalized serious violations of common Article 3 without linking them to the distinctive set of grave breaches under the Geneva Conventions identified elsewhere in Article 8 of the Rome Statute (and separately addressed in 18 U.S.C. §2441(c)(1)).

There is no codified requirement to criminalize common Article 3 violations per se, but the United States did so in 1997, as have a large number of other countries in their penal codes (particularly those nations that have ratified the Rome Statute and joined the International Criminal Court). The illegality of common Article 3 violations under the Geneva Conventions has joined with their growing acceptance among governments as criminal acts under international customary law, thus leading to penal sanctions in national criminal codes.

With considerable stealth, the Bush Administration has invoked Article 129 of the Third Geneva Convention, which requires states parties to legislate penal sanctions for the grave breaches listed in Article 130, in an apparent attempt to emasculate common Article 3. The proposed amendment to the War Crimes Act first strikes out “violation” and replaces it with “grave breach” as the punishable criminal act under common Article 3 as implemented in U.S. law. This would have the effect of eliminating a number of common Article 3 violations entirely from criminal sanctions under U.S. law and needlessly throws into a radically altered common Article 3 category certain crimes already covered as punishable grave breaches in 18 U.S.C. §2441(c)(1). One is left wondering whether “grave breaches” committed under 18 U.S.C. §2441(c)(1) are henceforth to be defined as the Bush Administration proposes they be understood for common Article 3 violations (18 U.S.C. §2441(c)(3)).

We are left with the bizarre result that all common Article 3 violations as such are eliminated entirely from the War Crimes Act, only to be replaced with a list of “grave breaches,” some of which overlap the violations and others of which appear out of nowhere to be henceforth defined as part of common Article 3 by the U.S. Government. Nothing in the Geneva Conventions requires any common Article 3 violations to be transformed into “grave breaches.” In this case, the new “grave breaches” are defined in narrow terms that defy the overall intent of the Geneva Conventions, while the authentic “grave breaches” of the Geneva Conventions committed outside common Article 3 situations remain standing and enforceable under the War Crimes Act even though they are not defined at all in the compromise bill. If the latter can be enforced without such narrow definitions, why must the former be so defined?

Five common Article 3 violations, which since 1997 have been chargeable as war crimes under the War Crimes Act, have been dropped, with retroactive effect, in the compromise bill. The excluded violations are as follows:

1. violence to life and person other than murder, mutilation, cruel treatment and torture as each of those crimes is restrictively defined in the bill;
2. murder not associated with one of the other offenses included in the bill;
3. mutilation not associated with one of the other offenses included in the bill;
4. outrages upon personal dignity, in particular humiliating treatment; and
5. 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.

Consider the possible actions that, while subject to prosecution under the present War Crimes Act, no longer would be criminal acts under the compromise legislation: There could easily be a violent assault on a prisoner falling just short of cruel treatment as it is defined in the bill (“severe or serious physical or mental pain or suffering…including serious physical abuse…”). A detainee could be summarily executed with one pistol shot to the head in a circumstance where no other abusive treatment associated with any other “grave breach” as defined in the bill is present. Common Article 3 prohibits “murder of all kinds,” while the compromise bill criminalizes only killing “in the course of committing any other offense under this section [of newly defined ‘grave breaches’].”

Similarly, unless it is done “in the course of committing any other offense under this section [of newly defined ‘grave breaches’],” the mutilation of a detainee could not be prosecuted under the compromise bill. Thus, the simple act of walking into an interrogation room where a detainee is being questioned in the most civilized possible manner and suddenly chopping off one of his fingers would not be a criminal act under the proposed amendment. Common Article 3 does not require any linkage with another violation in order to criminalize mutilation. Interestingly, only in these two cases, of murder and mutilation (as well as maiming, which is not explicitly listed in common Article 3), is the linkage required in the compromise bill.

One of the most significant common Article 3 violations associated with the so-called war on terror and the detainment practices at Guantanamo, Abu Ghraib and elsewhere at U.S.-controlled facilities in Iraq and Afghanistan and the secret prisons acknowledged recently by President Bush, is “outrages upon personal dignity, in particular humiliating and degrading treatment.” Yet the compromise bill excludes both the “outrages upon personal dignity” and “humiliating…treatment” prongs of that offense, although i
t does include far too narrowly defined “grave breaches” of rape and sexual assault or abuse. There is also a reiteration of the prohibition on “cruel, inhuman, or degrading treatment or punishment” found in the Detainee Treatment Act of 2005, but the definition invoked is not a precise overlay with the totality of violations found in common Article 3(1)(c) of the Geneva Conventions. These exclusions rip the gut out of the War Crimes Act.

Finally, the common Article 3 violation of necessary judicial procedures (listed as (5) above) also is excluded from the compromise bill. The proposed amendment would insulate officials responsible for the old and newly proposed military commissions, regardless of their deficiencies as due process courts, and protect from prosecution anyone who creates a kangaroo court or no tribunal at all in the future and then passes a sentence or carries out an execution without a prior credible judicial judgment.

Even under the most docile interpretation of Article 129 of the Third Geneva Convention, which requires the United States to take “measures necessary for the suppression of all acts contrary to the provisions of the present Convention other than the grave breaches…,” the compromise bill’s audacious stripping of whole categories of common Article 3 violations from the War Crimes Act would be viewed as an act of implicitly promoting, rather than suppressing, those violations in light of their criminal content during the last decade.

The compromise legislation further states, “No foreign or international sources of law shall supply a basis for a rule of decision in the courts of the United States in interpreting the prohibitions enumerated in subsection 2441(d) [which would be the new list of defined ‘grave breaches’ of common Article 3].” This blatant act of censorship of federal judges in their scholarship and judgments not only reveals how intimidated the Bush Administration and its Republican allies on Capitol Hill are by foreign and international law, but its constitutionality will be, and should be, challenged. This is not a new initiative, as there has long been legislation in the House of Representatives to achieve the same result for all federal court opinions. Some federal judges and Supreme Court justices have angered conservative pundits, legislators, and legal scholars by occasionally daring to refer to foreign or international law developments in their written opinions.

Since common Article 3 has been extensively examined and its meaning discussed in many decisions by the international criminal tribunals and foreign courts and in the commentaries of the Geneva Conventions by the International Committee of the Red Cross, as well as by foreign legal scholars, it would be the height of arrogance and folly to completely ignore that body of work and presume that all wisdom regarding common Article 3 resides in the relatively shallow vessel of pertinent U.S. law and sources, including American legal scholars. (What if a prior federal judgment cites a foreign or international source? Is the court prohibited from citing the federal case which has embodied within it foreign or international sources, either in the text or in a footnote? What if an American law professor’s article about common Article 3 in an American law school’s law review similarly cites a foreign or international law source? The absurdities abound.) After all, Common Article 3 is international law and the codified law of many foreign nations and international criminal tribunals, so any attempt to interpret it without any opportunity to refer to the sources of international and foreign law would be nonsensical and silly (see David Scheffer, Hamdan v. Rumsfeld: The Supreme Court Affirms International Law).

If the compromise bill becomes law with these and other deficient provisions (see Jordan Paust, Unsafe Harbor: The GOP Compromise on Detainee Treatment), the United States should fully expect some governments (particularly our adversaries) to take the cue and amend their own laws or adjust their conduct towards American captives so as to grant their own interrogators and personnel the carve-outs we have so generously afforded ourselves. Some governments may interpret a broader coverage of common Article 3 or seize the first opportunity to enforce the provision against U.S. personnel so as to uphold a higher notion of the rule of law. Even non-governmental actors, such as militia and terrorist groups, will be emboldened in their illegal conduct. Our pleas for justice and fairness will land on a growing number of deaf ears. All this only will heighten the considerable risks U.S. military and other government personnel already assume when deployed overseas. The Bush Administration has never answered to these simple realities.

David Scheffer is the Mayer, Brown, Rowe & Maw/Robert A. Helman Professor of Law and Director of the Center for International Human Rights at Northwestern University School of Law. His is a former U.S. Ambassador at Large for War Crimes Issues (1997-2001). He recently debated Professor Douglas Kmiec of Pepperdine University on this issue in “Due Process and the Trial of Terrorism Suspects” on National Public Radio’s “All Things Considered,” September 23, 2006; listen to recorded audio.

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