§ 2441)

The War Crimes Act imposes criminal penalties against persons who commit certain offenses under the law of war, when those offenses are either committed by or against a U.S. national or member of the U.S. Armed Forces. 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" (e.g., civil wars, rebellions, and other conflicts between State and non-State actors) and covers persons taking no active part in hostilities, including those who have laid down their arms or been incapacitated by capture or injury. 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 . The Administration further claimed 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." They argued that the scope of the War Crimes Act was ambiguous, particularly as it related to offenses concerning violations of Common Article 3. 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. As discussed later, the Military Commissions Act of 2006 (MCA, P.L. 109-366 ), which was enacted into law on October 17, 2006. § 2340); cruel, inhuman, and degrading treatment, as defined under the McCain Amendment and the MCA; any activities subject to criminal penalties under the War Crimes Act (e.g., murder, rape, mutilation); other acts of violence serious enough to be considered comparable to the kind expressly prohibited under the War Crimes Act; willful and outrageous acts of personal abuse done for the purpose of humiliating or degrading the individual in a manner so serious that any reasonable person, considering the circumstances, would deem the acts to be beyond the bounds of human decency, such as sexual or sexually indecent acts undertaken for the purpose of humiliation, forcing the individual to perform sexual acts or to pose sexually, threatening the individual with sexual mutilation, or using the individual as a human shield; or acts intended to denigrate the religion, religious practices, or religious objects of the individual. Recent Legislative Activity

In the 110 th Congress, legislative proposals were introduced to modify the scope of the War Crimes Act.
The War Crimes Act of 1996, as amended, makes it a criminal offense to commit certain violations of the law of war when such offenses are committed by or against U.S. nationals or Armed Service members. Among other things, the act prohibits certain violations of Common Article 3 of the 1949 Geneva Conventions, which sets out minimum standards for the treatment of detainees in armed conflicts "not of an international character" (e.g., civil wars, rebellions, and other conflicts between State and non-State actors). 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. military and intelligence personnel may be prosecuted for the pre-Hamdan treatment of Al Qaeda detainees.
As amended by the Military Commissions Act of 2006 (MCA, P.L. 109-366), the War Crimes Act now criminalizes only specified Common Article 3 violations labeled as "grave breaches." Previously, any violation of Common Article 3 constituted a criminal offense. Both the MCA and the Detainee Treatment Act of 2005 (DTA, P.L. 109-148, Title X) also afford U.S. personnel who engaged in the authorized interrogation of suspected terrorists with a statutory defense in any subsequent prosecution under the War Crimes Act or other criminal laws. These statutory protections, along with a number of other available defenses, appear to make it unlikely that U.S. personnel could be convicted under the War Crimes Act for any authorized conduct which was undertaken with the reasonable (though mistaken) belief that such conduct was legal.
In the 110th Congress, legislative proposals were introduced to modify the scope of the War Crimes Act, and it is possible that new legislative proposals will be introduced in the 111th Congress. This report discusses current issues related to the War Crimes Act and Common Article 3.