Judiciary HomepageMr. Chairman:
We also appreciate the opportunity to participate today in this hearing on H.R. 2587, entitled the "War Crimes Act of 1996." We fully support the purposes of the bill and its goal of bringing the United States criminal law into conformity with the international legal obligations of the United States with respect to the prosecution of war crimes. Likewise, we also agree that the bill should be expanded to include violations of the laws and customs of war not reflected in the Geneva Conventions of 1949, to include violations of Articles 23, 25, 27 and 28 of the Annex to Hague Convention IV, and of Protocol II to the Conventional Weapons Convention when that Protocol comes into force. We believe that violations of the laws governing the "means and methods of warfare", which these provisions address, can be just as serious as "grave breaches" of the Geneva Conventions.
We also agree that the law should apply to any person who has committed a war crime who comes within the jurisdiction of United States courts. We concur that the 1949 Geneva Conventions require states to enact penal legislation to provide for the punishment of those who commit certain war crimes, and that those Conventions require each Party to "search for persons alleged to have committed. . .grave breaches, and [to] bring such persons, regardless of their nationality, before its own courts."
The Armed Forces of the United States are subject to and governed by the Uniform Code of Military Justice (UCMJ) (10 U.S.C., Chapter 47). Those subject to the UCMJ include members of the Armed Forces on active duty, reserve members on active duty or inactive-duty training, members of the National Guard and Air National Guard on active duty or inactive-duty training in Federal service, retired members receiving retired pay, and cadets, aviation cadets and midshipmen, to mention just a few who fall under the jurisdiction of the Code. Violations of the laws and customs of war by these members during armed conflict ordinarily would be investigated and prosecuted as violations of the Uniform Code of Military Justice, and the accused members would be subject to trial and punishment by a court-martial. While charges and specifications against an accused normally would not specify that the accused is charged with a "war crime", nevertheless, the accused would be prosecuted for crimes specified, for example, as "grave breaches" of the Geneva Conventions of 1949. Such violations could include murder (Article 118, UCMJ), rape (Article 120, UCMJ), waste, destruction or spoilage of non-U.S. Government property (Article 109, UCMJ), or extortion (Article 127, UCMJ).
The military services have conducted courts-martial of accused who have allegedly committed war crimes in numerous instances where U.S. Forces have been involved in hostilities. You may recall reading about certain courts-martial proceedings growing out of military operations in Panama and Somalia, where accused members of the U.S. Armed Forces were prosecuted for what amounted to "grave breaches" of the Geneva Conventions. The Armed Forces of the United States train and operate in accordance with the laws and customs of war; they have an important stake in adherence to these laws, not only to ensure deterrence, control and discipline among our own Armed Forces, but also to encourage adherence to the laws and customs of war by our adversaries.
Although the jurisdiction of the UCMJ extends to all active duty and other personnel who I have mentioned previously, there is one class of persons to which the UCMJ does not extend. This class includes the soldier or sailor who has completed his or her tour of duty in the Armed Forces and has "mustered out" of the service and has been discharged. Should that person have committed a war crime during his or her tour of active duty, the military services do not have the authority to recall the accused to active duty for purposes of prosecution in a trial by court-martial. Likewise, prosecution under Federal or state law may be unavailing, especially if the crime were to have been committed during deployment of the Armed Forces overseas. H. R. 2587, as modified by the Administration's draft, is designed, among other things, to fill this lacuna in the law, and would ensure that these individuals could be prosecuted and brought to justice for violations of the laws and customs of war during their service on active duty.
Once again I would like to express the Department's support of the purposes and objectives of H.R. 2587, and our belief that the bill can be improved and made more comprehensive by the modifications suggested by the Administration. Mr. Chairman, this concludes my prepared testimony to the subcommittee. We appreciate the opportunity to appear before you and provide the Defense Department's views on H.R. 2587. I would be pleased to address any questions that you may have.
The Department of Defense supports the purposes and goals of H.R. 2587, to bring the United States criminal law into conformity with the international legal obligations of the United States with respect to the prosecution of war crimes. The Department concurs that the bill can be improved and expanded to include violations of the laws and customs of war other than the Geneva Conventions of 1949, as well as made applicable to any person who commits a war crime, not just war crimes committed against United States persons. Likewise, the bill should be extended to cover war crimes committed by members of the United States Armed Forces during their periods of active duty, and who have been discharged from the Armed Forces before the alleged commission of war crimes is discovered.