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Steptoe & Johnson L.L.P.
1330 Connecticut Avenue, N.W.
Washington, D.C. 20036
202-429-6216
Mr. Chairman and members of the Subcommittee, I am pleased to appear before you in response to your request. My name is Monroe Leigh. I am a partner in the Washington, D.C. law firm of Steptoe & Johnson. From 1975 to 1977, I served as Legal Adviser to the Department of State. I am appearing here today to support the passage of H.R. 2587, the War Crimes Act of 1995.
I would like to focus my testimony today on three subjects: (1) the U.S. obligations under the Geneva Conventions; (2) the reasons Congress did not contemplate implementing legislation in support of those obligations when considering ratification of the Conventions in 1955; and (3) the reasons such implementing legislation is necessary today.
U.S. OBLIGATIONS UNDER THE GENEVA CONVENTIONS
The War Crimes Act of 1995 implements U.S. obligations under the Geneva Conventions of 1949. Article 49, and corresponding articles in the other Conventions of 1949, provides that the signatory parties enact any necessary legislation to provide sanctions for persons involved in "grave breaches" of the Conventions. The Article further provides that parties to the Conventions must either try or extradite persons alleged to have committed any such "grave breaches."
Article 50 lists these "grave breaches" as willful killing, torture, inhuman treatment, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.
NO IMPLEMENTING LEGISLATION WAS ENACTED IN 1955
The President presented the Geneva Conventions of 1949 to the Senate on April 26, 1951. Issues arising from the conflict in Korea, however, led the Executive Branch to request the Senate to defer action until 1955. The Committee Report in 1955 stated that the "grave breaches" provisions of the Conventions are not self-executing and do not create international criminal law.
However, Congress did not enact implementing legislation at that time. The Executive Branch was persuaded that existing federal and state criminal law in the United States already covered the "grave breaches" listed in Article 50, and U.S. treaties already provide proper extradition proceedings with other nations. Therefore, the obligations of Article 49 to try or extradite anyone accused of a "grave breach" could be discharged without any new U.S. legislation on this subject.
The view in 1955 was that Article 49 was primarily directed at other contracting parties that had not yet passed adequate legislation. According to that view, the purpose of Article 49 of the First Geneva Convention was to remedy a situation in which an individual commits a crime, subsequently becomes a prisoner of war in a foreign country, and then seeks asylum within that foreign country. This concern stemmed from the real World War II problem in which war criminals avoided punishment by finding sanctuary in neutral nations. Article 49 requires those countries to enact legislation sanctioning "grave breaches" and to prosecute or extradite the offender.
It is worth recalling that during the Korean conflict the United States took the position that Article 118 of the Geneva Conventions does not require forcible repatriation. Article 118 states that prisoners of war must be released and repatriated without delay after the cessation of hostilities. Similar language in the 1929 POW Convention had been interpreted by the Allied Powers after World War II as requiring forcible repatriation. The U.S. position in 1955 was that Article 118 does nothing to preclude asylum for prisoners of war under accepted principles of international law. In fact prisoners of war in the Korean conflict were allowed to choose asylum instead of returning to their home country. This was one of the most contested issues during the armistice negotiations. It was this controversial issue which prompted the Executive Branch in 1951 to request that consideration of the 1949 Conventions be deferred.
IMPLEMENTING LEGISLATION IS NECESSARY TODAY
I believe that consideration of the War Crimes Act of 1995 should not be affected by the U.S. position with respect to the prisoners of war in the Korean conflict who did not wish to be repatriated to their home countries. The U.S. position during the Korean conflict concerned forcible repatriation of prisoners of war who faced possible political persecution upon return to their homeland.
I would like to lend my support to the expansive version of the War Crimes Act, endorsed by the Department of State. This expanded version of the Act is not limited to the "grave breaches" listed in Article 50 but also covers other "war crimes" such as those proscribed in the Hague Regulations of 1907. The expanded version also covers a broader category of offenders. H.R. 2587 applies only to offenses where the victim is a U.S. citizen or a member of the U.S. armed forces. It does not cover offenses where the victim is not a U.S. citizen or member of the U.S. ground forces. In my view it is desirable to target such offenses irrespective of who the victims are. This expanded coverage is tailored more realistically to present needs than the list of criminal acts in Article 50, which was based on a minimalist approach to the obligations of the United States. Furthermore, as I read the State Department draft it federalizes punishment for grave breaches and other war crimes and I think this is also desirable.
Even assuming that U.S. state and federal laws already cover the "grave breaches" listed in Article 50, it is not an exclusive list of the possible crimes that the United States can address through legislation. The list of "grave breaches" in Article 50 only represents the criminal acts that were of utmost concern following World Wars I and II and on which agreement could be reached.
Finally, it is also worth recalling that the position of the Government as to implementing legislation was influenced by the Bricker Amendment controversy. Senator Bricker proposed a constitutional amendment in the 1950's which was intended to restrict the power of the government in making and implementing treaties. This was a proposal which the Eisenhower Administration strongly opposed. In 1954 it came within a vote or two of approval in the Senate. And its revival was still possible in 1955. For this reason, the administration wanted as little legislation as possible in implementation of the 1949 treaties.
CONCLUSION
The Senate Committee on Foreign Relations did not find a need in 1955 for implementing legislation to extend existing U.S. law on "grave breaches" or other war crimes. The Committee made that determination, however, over forty years ago and thus did not take into account circumstances that have since changed; implementing legislation is now needed. The War Crimes Act of 1995 is desirable implementing legislation to ensure that the humanitarian goals of the Geneva Conventions be met.
That concludes my statement, Mr. Chairman. I would be glad to answer any questions you or members of the Subcommittee may have.