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War Crimes Act of 1995 : hearing before the Subcommitee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 2587 ... June 12, 1996 online

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WAR CRIMES ACT OF 1995



Y 4, J 89/1: 104/81



Uar Crines Act of 1995, Ser. Ho. 81...

HEAKING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION
ON

H.R 2587

WAR CRIMES ACT OF 1995



JUNE 12, 1996



Serial No. 81

a.




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1996



For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Wasiiington. DC 20402
ISBN 0-16-053593-X



WAR CRIMES ACT OF 1995



Y 4. J 89/1: 104/81

Uar Crines ftct of 1995, Ser. Ko. 81...

HEARING

BEFORE THE

SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

SECOND SESSION
ON

H.R 2587

WAR CRIMES ACT OF 1995



JUNE 12. 1996



Serial No. 81




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1996



For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office, Washington. DC 20402
ISBN 0-16-053593-X



COMMITTEE ON THE JUDICIARY

HENRY J. HYDE, Illinois. Chairman

CARLOS J. MOORHEAD, California JOHN CONYERS. Jk.. Michigan

F. JAMES SENSENBRENNER. Jr.. PATRICIA SCHROEDER, Colorado

Wisconsin BARNEY FRANK, Massachusetts

BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York

GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, Cahfomia

HOWARD COBLE. North Carolina RICK BOUCHER, Vir^nia

LAMAR SMITH, Texas JOHN BRYANT. Texas

STEVEN SCHIFF. New Mexico JACK REED, Rhode Island

ELTON GALLEGLY. California JERROLD NADLER, New York

CHARLES T. CANADY, Florida ROBERT C. SCOTT. Virginia

BOB INGLIS, South Carolina MELVIN L. WATT, North Carolina

BOB GOODLATTE, Vir^nia XAVIER BECERRA, California

STEPHEN E. BUYER, Indiana ZOE LOFGREN. California

MARTIN R. HOKE, Ohio SHEILA JACKSON LEE. Texas

SONNY BONO, California MAXINE WATERS, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia

Alan F. Coffey, Jr., General Counsel/ Staff Director
JUUAN Epstein, Minority Staff Director



SUBCOMMnTEE ON IMMIGRATION AND CLAIMS

LAMAR SMITH, Texas, Chairman

ELTON GALLEGLY. California JOHN BRYANT. Texas

CARLOS J. MOORHEAD, California BARNEY FRANK, Massachusetts

BILL McCOLLUM, Florida CHARLES E. SCHUMER, New York

SONNY BONO, California HOWARD L. BERMAN, California

FRED HEINEMAN. North Carolina XAVIER BECERRA. California
ED BRYANT. Tennessee

CORDIA A. Strom. Chief Counsel

Edward R. Grant, Counsel

George Fishman, Assistant Counsel

Marie McGlone, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page
June 12, 1996 1

TEXT OF BILL

H.R. 2587 3

OPENING STATEMENT

Smith, Hon. Lamar, a Representative in Congress from the State of Texas,
and chairman. Subcommittee on Immigration and Claims 1

WITNESSES

Cronin, Capt. Michael P., chairman, Legislative Affairs Committee, Allied
Pilots Association 7

Everett, Hon. Robinson 0., professor of law, Duke University School of Law,
and Senior Judge, U.S. Court of MUitary Appeals for the Armed Forces 20

Leigh, Monroe, partner, Steptoe & Johnson, former Assistant General Coun-
sel for International Affairs, Department of Defense, and chairman, Amer-
ican Bar Association Task Force on War Crimes in Yugoslavia 24

Matheson, Michael J., Principal Deputy Legal Adviser, Department of State ... 8

McNeill, John H., Senior Deputy General Counsel (International Affairs and

Intelligence), Office of General Counsel, Department of Defense 13

Zaid, Mark S., law office of Marie S. Zaid, vice chair. International Criminal
Law Committee, Section of Criminal Justice, American Bar Association,
and chair, American Bar Association Task Force on Proposed Protocols
of Evidence and Procedure for Future War Crimes Tribunals 30

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Cronin, Capt. Michael P., chairman. Legislative Affairs Committee, Allied
Pilots Association: Prepared statement 7

Everett, Hon. Robinson 0., professor of law, Duke University School of Law,
and Senior Judge, U.S. Court of Military Appeals for the Armed Forces:
Prepared statement 22

Jones, Hon. Walter B., Jr., a Representative in Congress from the State

of North Carolina: Prepared statement 6

Leigh, Monroe, partner, Steptoe & Johnson, former Assistant (General Coun-
sel for International Affairs, Department of Defense, and chairman, Amer-
ican Bar Association Task Force on War Crimes in Yugoslavia:

Letter dated Jane 7, 1955, to U.S. Senator Walter F. George, from Assist-
ant Attorney General J. Lee Rankin 26

Prepared statement 28

Matheson, Michael J., Principal Deputy Legal Adviser, Department of State:

Prepared statement 11

McCollum, Hon. Bill, a Representative in Congress from the State of Florida:
Letter dated July 15, 1996, from Barbara Larkin, Acting Assistant Sec-
retary for Legislative Affairs, Department of State 46

McNeUl, John H., Senior Deputy General Counsel (International Affairs and
Intelligence), Office of (Jeneral Counsel, Department of Defense: Prepared
statement 15

(III)



IV

Page

Zaid, Mark S., law office of Mark S. Zaid, vice chair, International Criminal
Law Committee, Section of Criminal Justice, American Bar Association,
and chair, American Bar Association Task Force on Proposed Protocols
of Evidence and Procedure for Future War Crimes Tribunals: Prepared
statement 32

APPENDIXES

Appendix 1.— Letter dated June 17, 1996, from Judge Robinson O. Everett,

U.S. Court of Appeals for the Armed Forces 49

Appendix 2. — Statement of International Conmiittee of the Red Cross 51

Appendix 3.— Statement of Alfred P. Rubin, distinguished professor of inter-
national law, the Fletcher School of Law and Diplomacy, Tufts University .. 53



WAR CRIMES ACT OF 1995



WEDNESDAY, JUNE 12, 1995

House of Representatives,
Subcommittee on Immigration and Claims,

Committee on the Judiciary,

Washington, DC.
The subcommittee met, pursuant to notice, at 3:17 p.m., in room
2237, Raybum House Office Building, Hon. Lamar Smith (chair-
man of the subcommittee) presiding.

Present: Representatives Lamar Smith, Carlos J. Moorhead, and
Bill McCollum.
Also present: Representative Walter B. Jones, Jr.
Staff present: Cordia A. Strom, chief counsel; George Fishman,
assistant counsel; Judy Knott, secretary; and Marie McGlone, mi-
nority counsel.

OPENING STATEMENT OF CHAIRMAN SMITH

Mr. Smith. The Subcommittee on Immigration and Claims will
come to order.

I've already made some initial remarks, but let me read an open-
ing statement and then we'll proceed as quickly as possible.

Today's hearing is on H.R. 2587, the War Crimes Act of 1995,
which was introduced by my colleague, Walter Jones, who is in
front of me at the table. The Geneva Conventions for the protection
of victims of war were written by the International Committee of
the Red Cross following the Second World War. In 1955, Deputy
Under Secretary of State Robert Murphy testified to the Senate
that, 'The Geneva Conventions are another long step forward to-
ward mitigating the severities of war on its helpless victims. They
reflect enlightened practices as carried out by the United States
and other civilized countries, and they represent largely what the
United States would do, whether or not a party to the Conventions.
Our own conduct has served to establish higher standards, and we
could only benefit by having them incorporated in a stronger body
of wartime law."

Those words are as true today — or they should be as true today —
as they were when they were uttered 40 years ago. While the Unit-
ed States ratified the Geneva Conventions in 1955, we have never
passed the implementing legislation contemplated by the Conven-
tions. The Conventions state that signatory countries are to enact
penal legislation punishing what are callea grave breaches: actions
such as the deliberate killing of prisoners of war, the subjecting of
prisoners to biological experiments, the willful infliction of great
suffering or serious injury on civilians in occupied territory.

(1)



While offenses considered grave breaches can in certain instances
be prosecutable under Federal law, there are a great number of in-
stances in which no prosecution is possible today. Such non-
prosecutable crimes might include situations where American pris-
oners of war are killed or forced to serve in the army of their cap-
tors or where American doctors on missions of mercy in foreign war
zones are kidnapped or murdered. War crimes are not a thing of
the past, and Americans can all too easily fall victim to them.

H.R. 2587 is designed to implement the Geneva Conventions and
to protect Americans. It would add a provision to title 18 of the
U.S. Code providing that whoever, whether inside or outside the
United States, commits a grave breach of the Geneva Conventions
where the victim of such breach is a member of the Armed Forces
of the United States or a citizen of the United States shall be fined
or imprisoned or both, and if death results to the victim, shall also
be subject to the penalty of death.

The administration shares my support for this legislation. How-
ever, the State Department and Defense Department have pro-
posed that we amend the legislation, primarily by expanding its ju-
risdiction to cover war crimes wherever they occur, regardless of
the nationality of the perpetrator or victim, as long as the perpetra-
tor is found in the United States. This is called universal jurisdic-
tion.

Universal jurisdiction is not unknown to American criminal law.
For instance, 18 U.S.C. 2340(a), which criminalizes torture, can be
utilized whenever an alleged torturer is found in the United States
regardless of the nationality of the perpetrator, the victim, or the
site of the offense. However, granting universal jurisdiction is a
huge step to take with possibly troubling foreign policy implica-
tions. Will it enmesh us in conflicts around the world in which we
have no interest? Will it encourage states like Libya or Iran to as-
sert imiversal jurisdiction against Americans for imagined war
crimes? On the other hand, are there crimes so heinous and univer-
sally condemned that it is every nation's duty to prosecute their
perpetrators? These are the issues which we will address today.

[The bill, H.R. 2587, follows:]



104th congress
1st Session



H. R. 2587



To earn' out the international obligations of the United States under the
Geneva Conventions to provide criminal penalties for certain war crimes.



IN THE HOUSE OF REPRESEXTATR^S

NO\'EMBER 7, 1995

Mr. Jones introduced the following bill; which was referred to the Committee

on the Judiciar\-



A BILL

To carrv' out the international obligations of the United
States under the Geneva Conventions to pro\ide criminal
penalties for certain war crimes.

1 Be it enacted hy the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the "War Crimes Act of

5 1995".

6 SEC. 2. CRIMINAL PENALTIES FOR CERTAIN WAR CRIMES.

7 (a) In General.— Title 18, United States Code, is

8 amended by inserting after chapter 117 the following:



2

1 "CHAPTER lift— WAR CRIMES

"Sec.

"2401. War crimes.

2 "§2401. War crimes

3 "(a) In General. — ^Wlioever, whether inside or out-

4 side the United States, commits a gjave breach of the Ge-

5 neva conventions where the \dctim of such breach is mem-

6 ber of the armed forces of the United States or a citizen

7 of the United States, shall be fined under this title or im-

8 prisoned for life or any term or years, or both, and if death

9 results to the victim, shall also be subject to the penalty

10 of death.

1 1 "(b) Definhtions. — As used in this section, the term

12 'grave breach of the Geneva conventions' means conduct

13 defined as a grave breach in any of the international con-

14 ventions relating to the laws of warfare signed at Geneva

15 12 August 1949 or any protocol to any such convention,

16 to which the United States is a party."

17 (b) Clerical AaienT)MENT. — The table of chapters

18 for part I of title 18, United States Code, is amended by

19 inserting after the item relating to chapter 117 the foUow-

20 ing new item:

"118. War crimes 2401".

O



•HR 2687 IH



Mr. Smith. We have two distinguished panels of witnesses, but
before we hear from them or any member of the subcommittee for
an opening statement, I'd Hke to recognize the individual who is re-
sponsible for this legislation, for our hearing today, and that's my
friend and colleague, Walter Jones. And, in addition to his state-
ment, Walter, we welcome you to introduce who is with you and
have him recognized as well.

So please proceed.

Mr. Jones. Thank you, Mr. Chairman. Mr. Chairman and Mr.
Moorhead, thank you for this opportunity to speak before the
House Subcommittee on Immigration, I'm here to speak in strong
support of the War Crimes Act of 1995.

The bill is simple and straightforward. Presently, in the absence
of an international criminal tribunal or a military commission, we
have no means by which we can try and prosecute individuals who
have committed a war crime against an American citizen. This leg-
islation before you today will give the United States the legal au-
thority to prosecute individuals who have committed a war crime
against an American citizen. The bill restores justice by filling the
gaps in Federal criminal law relating to the prosecution of individ-
uals for grave breaches of the Geneva Convention. When passed,
the United States will no longer be a safe haven for anyone having
committed such crimes.

The bill before the subcommittee is particularly important to the
men and women in the armed services. As a member of the House
National Security Committee, I was astonished to learn that cur-
rently there is no law that provides the means for prosecuting un-
speakable crimes committed by foreign nationals against U.S. serv-
ice personnel. While the Geneva Convention of 1949 provides the
United States with the authority, we have not yet passed legisla-
tion to provide the courts with the enforcement mechanism. This
gap in the Federal law is unacceptable. We call upon our men and
women in uniform to serve in hostile lands now more than ever.
The specter of war crimes looms over almost every U.S. military ac-
tion abroad, whether peacekeeping in Somalia as part of a United
Nations force or peacemaking in Bosnia under a NATO command.
No guarantees exist for U.S. service personnel that they will not
be the victim of a ^ave breach of the Geneva Convention.

Anyone who believes this legislation is unnecessary should recall
the horror of the American Blackhawk pilot as he was taken pris-
oner in Mogadishu after his helicopter was shot down. For that
matter, consider the American men and women taken prisoners by
Iraq during the Gulf War.

As Americans, we have a long and cherished sense of justice.
From that, we have built a judicial system that most people believe
is the finest in the world. No matter where or when an atrocity
may occur against an American citizen, our Federal prosecutors
should be empowered to track down and try any known violators
of the Geneva Convention.

With us today is the gentleman who came to me with the idea
for this bill. Capt. Mike Cronin served in Vietnam as an A-6 pilot.
After being shot down, he spent 6 years living in a cage at the
Hanoi Hilton as a prisoner of war. When he returned to the States,
he earned his law degree at Georgetown University. He has since



become an airline pilot and the legislative affairs chairman for the
Allied Pilots Association. I am very pleased he can be with us
today. The sacrifices he has made for his Nation and his efforts on
this legislation should be applauded.

Mike, it is for you and for future victims of war crimes that I
hope we are able to pass this bill.

Chairman Smith and members of the subcommittee, thank you
for the opportunity to speak on behalf of what I believe to be im-
portant and long-overdue legislation. I look forward to the testi-
mony of this panel before us.

[The prepared statement of Mr. Jones follows:]

Prepared Statement of Hon. Walter B. Jones, Jr., a Representative in
Congress From the State of North Carolina

Mr. Chairman and Mr. Moorhead, thank you for this opportunity to speak before
the House Subcommittee on Immigration. I am here to speak in strong support of
the War Crimes Act of 1995.

The bill is simple and strai^tforward. Presently, in the absence of an inter-
national criminal tribunal or a military commission, we have no means by which
we can try and prosecute individuals who have committed a war crime against an
American citizen.

This legislation before you today will give the United States the legal authority
to prosecute individuals who have committed a war crimes act, against an American
citizen. The bill restores justice by filling the gaps in federal criminal law relating
to the prosecution of individuals for grave beaches of the Geneva Convention: When
passed, the United States will no longer be a safe haven for anyone having commit-
ted such crimes.

The bill before the Subcommittee is particularly important to the men and women
in the Armed Services. As a member of the House National Security Committee, I
was astonished to learn that currently there is no law that provides the means for
prosecuting unspeakable crimes committed by foreign nationals against our U.S.
Service Personnel.

While the Geneva Convention of 1949 provides the U.S. with the authority, we
have not yet passed legislation to provide the courts with the enforcement mecha-
nism. This gap in the federal law is unacceptable.

We call upon our men and women in uniform to serve in hostile lands now more
than ever. The specter of war crimes looms over almost every U.S. military action
abroad — whether peacekeeping in Somalia as part of a United Nations force or
peacemaking in Bosnia under a NATO contunand. No guarantees exist for U.S. serv-
ice personnel that they will not be the victim of a "grave breach" of the Geneva Con-
vention.

Anyone who believes this legislation is unnecessary should recall the horror of the
American Blackhawk pilot as he was taken prisoner in Mogadishu after his heli-
copter was shot down. For that matter, consider the American men and women
taken prisoners by Iraq during the Gulf War.

As Americans, we have a long and cherished sense of justice. From that, we have
built a judicial system, that most people believe is the finest in the world. No matter
where or when an atrocity may occur against an American citizen, our Federal Pros-
ecutors should be empowered to track down and try any known violators of the Ge-
neva Convention.

With us today is the gentleman who came to me with the idea for this bill. Cap-
tain Mike Cronin served in Vietnam as an A-6 pilot. After being shot down, he
spent six years living in a cage at the "Hanoi Hilton" as a prisoner of war. When
he returned to the states, he earned his law degree at Georgetown University.

He has since become an airline pilot and the Legislative Affairs Chairman for the
Allied Pilots Association. I am very pleased he can be with us today. The sacrifices
he has made for this nation, and his efforts on this legislation should be applauded.
Mike, it is for you, and for future victims of war crimes, that I hope we are able
to pass this bill.

Chairman Smith, and members of this Subcommittee, thank you for the oppor-
tunity to speak on behalf of what I believe to be important and long overdue legisla-
tion. I look forward to the testimony of the panel before us.



Mr. Jones. Mr. Chairman, at this time, with your permission, I
would like to introduce Capt. Mike Cronin. Captain Cronin.

Mr. Smith. Captain Cronin, we welcome you as well. And before
you proceed, I just want to say how much we appreciate the sac-
rifices you've made for our country and the service that you have
given to our country, going back many, many years. I hope you
never have to endure that kind of hardship again, but it is appre-
ciated, and we'd welcome your remarks now,

STATEMENT OF CAPT. MICHAEL P. CRONIN, CHAIRMAN, LEG-
ISLATIVE AFFAIRS COMMITTEE, ALLIED PILOTS ASSOCIA-
TION

Captain Cronin. Thank you, Mr. Chairman, members of the
committee. I'm very pleased to be here, and thank you for giving
me the opportunity to say a few words.

First of all, I would like to express my gratitude to Congressmgm
Jones for being willing to listen to a guy with an idea. He was not
the first one who heard my idea, but he was the first person willing
to act upon it, and for that I will always be grateful.

I believe this is important legislation and I have personal experi-
ence to bear this out. Our opponents in the field have consistently
denied Americans the benefits of the Geneva Conventions, and
since World War II they have done so with impunity. This legisla-
tion can change that.

The nations of the world revised the Geneva Conventions in 1949
to make them more enforceable, based on the bitter experience of
World War II. Unless the signatories pass appropriate legislation,
this goal cannot be achieved. Many other nations have already
passed appropriate laws, and I hope that we shall join them.

War is an extraordinary event. It defies rationality and ordinary
laws. The worst effects of war can be ameliorated only by the laws
of war, which are themselves extraordinary and can be enforced
only by extraordinary means such as this bill.

I thank the committee very much for its consideration of this bill,
and I look forward to assisting in your deliberations to any extent
that I can. Thank you very much, sir.

[The prepared statement of Captain Cronin follows:!

Prepared Statement of Capt. Michael P. Cronin, Chairman, Legislative
Affairs Committee, Alued Pilots Association

Good afternoon Chairman Smith, members of the Committee.

I am Michael P. Cronin. I thank you for allowing me to address the Committee.

I would like to express my gratitude to Congressman Walter Jones for being will-
ing to listen. His very determined efforts have converted a legal theory into an im-
portant bill which has a real possibility of becoming law.

I believe this is very important legislation. My personal experience in Vietnam
convinces me that this is so.

Our opponents in the field have consistently denied Americans the benefits of the
Geneva Conventions. Since the end of World War II, they have done so with impu-
nity. This legislation can change that.

The nations of the world revised the Geneva Conventions in 1949 with the specific
intent of making them more enforceable. They were motivated to do this by the bit-
ter experience of World War II.

Unless the signatories to the Conventions enact appropriate legislation, this goal
of enforceability won't be realized. Many other nations have already acted and I
hope we will join them.



War is an extraordinary event. It defies rationality and ordinary laws. The worst
effects of war can be ameliorated only by the laws of war, which are themselves ex-
traordinary. They can be enforced only by extraordinary means such as this bill.

I thank the Committee for its interest in this important issue. I will follow you
deliberations with the greatest interest.

Thank you.

Mr. Smith. Thank you, Captain Cronin.

You mentioned that you were just a man with an idea and you
approached Congressman Jones, and he responded and acted. I just
was going to tell you that he actually did more than that. Every
time he saw me on the House floor he would grab me by the lapel
and remind me about this bill. We probably had at least three or
four meetings on this in various offices around the Capitol. I won't
say it got to the point where I avoided trying to make eye contact
with him on the House floor, but it was right before that, and it
is his tenacity and persistence, as you said, along with your good
idea, that has gotten us to the point we are today.

Walter, you're welcome, if you would join us up here, if you'd like
to, and

Mr. Jones. Thank you. Mr. Chairman, I'm going to go to the
floor for about 10 minutes, and then I will be back. I do want to
hear the panelists that will be speaking. So I will return in about
10 or 15 minutes, and I thank you for that offer.

Mr. Smith. OK. We'll look forward to your participation.


1 3 4 5 6 7 8 9 10

Online LibraryUnited States. Congress. House. Committee on the JWar Crimes Act of 1995 : hearing before the Subcommitee on Immigration and Claims of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, second session, on H.R. 2587 ... June 12, 1996 → online text (page 1 of 10)