War Crimes Act of 1996 - Potential Application

Potential Application

White House officials were concerned that they and other U.S. officials could be prosecuted under the War Crimes Act for the U.S. treatment of detainees after 9/11 for violations of the Geneva Conventions. In a January 2002 memorandum to the president, then-White House Counsel Alberto Gonzales authored a controversial memo that explored whether Article III of the Geneva Convention applied to Al Qaeda and Taliban fighters captured in Afghanistan and held in detention facilities around the world, including Camp X-Ray in Guantanamo Bay, Cuba. The memo made several arguments both for and against providing Article III protection to Al Qaeda and Taliban fighters. He concluded that Article III was outdated and ill-suited for dealing with captured Al Qaeda and Taliban fighters. He described as "quaint" the provisions that require providing captured Al Qaeda and Taliban fighters "commissary privileges, scrip, athletic uniforms, and scientific instruments". He also argued that existing military regulations and instructions from the President were more than adequate to ensure that the principles of the Geneva Convention would be applied. He also argued that undefined language in the Geneva Convention, such as "outrages upon personal dignity" and "inhuman treatment", could make officials and military leaders subject to the War Crimes Act of 1996 if mistreatment was discovered.

The adoption of the Military Commissions Act of 2006, defined in Section 6 of the act grave abuses of Common Article 3 to only include torture, cruel or inhumane treatment, murder, mutilation or maiming, intentionally causing serious bodily harm, rape, sexual assault or abuse, and the taking of hostages, thereby limiting the scope of the original law.