Proposed War Crimes Act changes would avoid liability for degrading treatment

[JURIST] Proposed amendments drafted by the Bush administration to revise the War Crimes Act [text] would protect CIA officers, former military personnel and political appointees from prosecution for humiliating and degrading treatment of wartime detainees, according to a report in Wednesday's Washington Post. The 1996 War Crimes Act makes it a felony to violate the Geneva Conventions [ICRC materials], including the Common Article 3 [text] prohibition on cruel and inhumane treatment, and as currently written potentially allows those not subject to the Uniform Code of Military Justice [text] to be held responsible for war crimes. To date, however, there have been no prosecutions under the War Crimes Act.

After consulting with Republican lawmakers [JURIST report] on the subject, US Attorney General Alberto Gonzales [official profile] called for amendments [JURIST report] to the legislation last week during a Senate Armed Services Committee hearing [committee materials; JURIST report] on the future of military commissions [JURIST news archive]. Gonzales said that revisions were necessary to clearly define acts prohibited under the War Crimes Act so that US interrogators do not unknowingly subject themselves to criminal charges.

According to the draft obtained by the Post, ten specific categories of illegal acts against detainees, including torture, murder, rape and hostage taking, would still be subject to prosecution, but not humiliating acts such as forced nakedness, the use of dog leashes and forcing male detainees to wear women's underwear, akin to acts seen at the Abu Ghraib prison [JURIST news archive] in Iraq.

Notwithstanding any changes to the War Crimes Act, serving members of the US armed forces could still face military prosecution for alleged abuses under the UCMJ. Fearing liability of US personnel in a court it cannot control, the US has declined to submit [AMICC backgrounder] to the jurisdiction of the International Criminal Court [official website], which was established to prosecute war crimes, genocide and crimes against humanity. The US has also vigorously pursued Article 98 agreements [DS materials] to prevent other nations from surrendering US citizens to the ICC. The Washington Post has more.

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