Congress Urged To Define "War Crimes" Under Geneva Conventions

By Michelle Austein
Washington File Staff Writer

Washington - Administration officials and armed forces personnel asked Congress to define clearly U.S. law with respect to terrorism. They made the request during a hearing before the Senate Judiciary Committee August 2.

"We believe that the standards applicable to the crimes of terrorists, as well as those governing the treatment of detainees by United States personnel in the war on terror, should be certain and that those standards should be defined clearly by U.S. law, consistent with our international obligations," said Acting Assistant Attorney General Steven Bradbury.

"The United States has never before applied Common Article 3 in the context of an armed conflict with international terrorists," Bradbury said. "We are now faced with the task of determining the best way to do just that."

On June 29, the U.S. Supreme Court said military commissions to try Guantanamo detainees were unconstitutional because they violated Article 3 of the Geneva Conventions. (See related article.)

Many of those who testified stated the need for Congress to clarify Common Article 3's application. The article prohibits "outrages upon personal dignity, in particular humiliating and degrading treatment," a statement that Bradbury and others who testified said is vague.

Later in the day, U.S. Attorney General Alberto R. Gonzales testified before the Senate Armed Services Committee that Congress should set forth a “definite and clear list of offenses serious enough to be considered ‘war crimes’ punishable as violations of Common Article 3.” Gonzales also expressed concern about detainees’ ability to challenge their detention or trial.

Any legislation enacted by Congress “should make it clear that the detainees may not challenge their detention or trial before a final judgment of a military commission or a final order of a Combatant Status Review Tribunal,” Gonzales said.

Defining the terms of Common Article 3 is important because a section of the U.S. War Crimes Act of 1996 makes any violation of the article a felony offense, Bradbury said.

One way to ensure that the laws are understandable is for Congress to create a definite and clear list of serious offenses that will be considered war crimes, and therefore punishable by the War Crimes Act, Bradbury said.

Congress' decisions will "have potentially very significant impacts on how this nation and its ability to prosecute the war on terrorism will go," said General Richard Myers, former chairman of the Joint Chiefs of Staff, and "also on our troops who are on the front lines of this war."

Transcripts of the testimonies are available on the Senate Judiciary Committee Web site.

Gonzales’ prepared statement (PDF, 11 pages) is available on the Senate Armed Services Committee Web site.