War Crimes Act of 1996
Based on Wikipedia: War Crimes Act of 1996
A Law That Boomeranged
In 1996, the United States Congress passed a law designed to punish America's enemies. A decade later, that same law threatened to ensnare the very officials who had championed American power abroad. The War Crimes Act of 1996 is a case study in how legal weapons, once forged, can cut in unexpected directions.
The law sailed through Congress without a single dissenting vote. Senators approved it by unanimous consent. The House passed it on a voice vote—the legislative equivalent of everyone nodding in agreement without bothering to count hands. President Bill Clinton signed it into law. No one imagined it would ever apply to Americans.
The Original Purpose
The War Crimes Act had a specific target: North Vietnamese soldiers who had tortured American prisoners of war during the Vietnam War. Decades after the conflict ended, survivors were still haunted by what had happened to them in captivity. The law would finally give prosecutors a tool to bring their torturers to justice if they ever set foot on American soil.
The Department of Defense enthusiastically supported the legislation. In fact, military lawyers recommended expanding it to include an even longer list of prohibited conduct. Then they suggested something that would prove consequential: make the law apply to American soldiers too.
Why would the Pentagon voluntarily subject its own personnel to potential prosecution? The reasoning was strategic rather than self-sacrificing. If America held itself to the highest standards, the thinking went, it could credibly demand that other nations do the same. Lead by example. Set the bar high for everyone.
This made sense in 1996. The United States military trained its personnel rigorously in the laws of armed conflict. The Geneva Conventions—a set of international treaties governing the treatment of prisoners, wounded soldiers, and civilians during wartime—were taken seriously. American soldiers weren't supposed to commit war crimes, so making such crimes illegal under domestic law seemed like a costless gesture of moral leadership.
What the Law Actually Says
The War Crimes Act defines a war crime as any "grave breach" of the Geneva Conventions. This language borrows directly from the Conventions themselves, which specify that certain acts are so serious they constitute grave breaches regardless of circumstances.
The core prohibitions are stark: willful killing, torture or inhuman treatment, biological experiments, willfully causing great suffering or serious injury to body or health. These apply to "persons or property protected by the Convention"—meaning prisoners of war, wounded soldiers, and civilians in occupied territories.
The penalties match the severity of the crimes. If a war crime results in death, the perpetrator can face execution. Otherwise, life imprisonment is the maximum sentence.
Crucially, the law applies whenever either the victim or the perpetrator is American. A foreign soldier who tortures an American can be prosecuted. But so can an American who tortures a foreigner.
September 11th Changes Everything
After the attacks of September 11th, 2001, the United States launched what the Bush administration called the "war on terror." This was not a traditional conflict between nations with uniformed armies. The enemy was al-Qaeda, a transnational network of militants who wore no uniforms, represented no country, and deliberately blurred the line between combatant and civilian.
American forces quickly captured hundreds of suspected terrorists in Afghanistan and elsewhere. The question of what to do with them became urgent. Could they be held indefinitely? Could they be interrogated using methods that would be illegal if applied to conventional prisoners of war?
Some administration lawyers saw the Geneva Conventions as an obstacle. These treaties had been written for a different kind of war—conflicts between nation-states whose soldiers wore uniforms and fought according to established rules. Terrorists who deliberately targeted civilians and hid among populations seemed to fall outside this framework.
In January 2002, White House Counsel Alberto Gonzales wrote a memo to President George W. Bush exploring whether the Geneva Conventions applied to captured al-Qaeda and Taliban fighters. The memo became infamous for its language.
Gonzales described certain Geneva provisions as "quaint." He was referring specifically to requirements that prisoners receive "commissary privileges, scrip, athletic uniforms, and scientific instruments"—detailed protections designed for the industrial-age conflicts of the mid-twentieth century. But the word "quaint" became shorthand for a broader attitude: that the old rules didn't fit the new war.
The War Crimes Act Becomes a Problem
Here was the difficulty. The Geneva Conventions prohibit "outrages upon personal dignity, in particular humiliating and degrading treatment." This language is intentionally broad. It was written to cover situations the treaty's drafters couldn't anticipate.
But broad language creates legal uncertainty. What exactly constitutes an "outrage upon personal dignity"? Is sleep deprivation torture, or merely harsh treatment? What about forcing prisoners to hold uncomfortable positions for hours? What about waterboarding—simulating drowning to create panic and the sensation of imminent death?
The Central Intelligence Agency developed what it called "enhanced interrogation techniques" for use against high-value detainees. These methods pushed into legally ambiguous territory. Administration lawyers wrote memos arguing that the techniques fell short of torture. Critics called them torture by another name.
The War Crimes Act lurked in the background of these debates. If the Geneva Conventions applied to war-on-terror detainees, and if enhanced interrogation violated those Conventions, then everyone involved—from interrogators to the officials who authorized their methods—could potentially face prosecution under American law.
The law Congress had passed to punish Vietnamese prison guards now threatened American officials.
The Supreme Court Intervenes
In 2006, the Supreme Court decided Hamdan v. Rumsfeld. Salim Hamdan was Osama bin Laden's former driver, captured in Afghanistan and held at the detention facility in Guantánamo Bay, Cuba. He challenged the military commission that was supposed to try him for war crimes.
The Court's ruling addressed many issues, but one finding sent shockwaves through the executive branch. The justices held that Common Article 3 of the Geneva Conventions applied to the conflict with al-Qaeda.
Common Article 3 is called "common" because it appears in all four Geneva Conventions. It sets minimum standards for the treatment of detainees in conflicts "not of an international character"—originally meant for civil wars, but now held to cover the fight against terrorism. Among its prohibitions: "outrages upon personal dignity, in particular humiliating and degrading treatment."
The implication was unstated but unmistakable. If Common Article 3 applied, and if interrogation techniques violated Common Article 3, then those techniques constituted war crimes under the 1996 law.
Rewriting the Rules
The Bush administration moved quickly to address this legal exposure. Within months, Congress passed the Military Commissions Act of 2006. Among its provisions was a significant narrowing of the War Crimes Act.
The original law had incorporated the Geneva Conventions' broad language about outrages upon personal dignity. The 2006 amendment replaced this with a specific list of prohibited acts: torture, cruel or inhumane treatment, murder, mutilation or maiming, intentionally causing serious bodily harm, rape, sexual assault or abuse, and taking hostages.
This list was more concrete than the Conventions' language. It was also, arguably, narrower. Techniques that might constitute "humiliating and degrading treatment" under the Conventions might not qualify as "cruel or inhumane treatment" under the amended statute.
The practical effect was to reduce legal risk for officials who had authorized or conducted enhanced interrogations. The law that had been written to punish America's enemies was rewritten to protect Americans from its reach.
The First Charges—Against Foreigners
For twenty-seven years, the War Crimes Act went unused. Not a single person was charged under its provisions. The Vietnamese soldiers it had been designed to prosecute were beyond the reach of American law enforcement. No American official was ever indicted for treatment of war-on-terror detainees.
Then, in December 2023, the law finally produced actual criminal charges. Attorney General Merrick Garland announced that four Russian soldiers had been indicted for torturing an American citizen during the war in Ukraine.
The victim had been living in Ukraine when Russian forces invaded in February 2022. He was detained for ten days in April of that year and allegedly subjected to torture by his captors. Because he was American, the War Crimes Act applied.
The charges were largely symbolic. The four Russian soldiers were in Russia, and Russia has no extradition treaty with the United States. The American government had no way to arrest them. They would only face trial if they were foolish enough to travel to a country that might hand them over.
But the indictment demonstrated that the law remained on the books and could still be invoked. It served as a statement of principle, if nothing else—a declaration that the United States considered the alleged conduct criminal, even if the perpetrators were beyond its grasp.
The Deeper Questions
The history of the War Crimes Act illuminates tensions that run through international humanitarian law. These rules exist to restrain the worst excesses of armed conflict. But nations write and enforce laws. When a nation's own conduct comes into question, the tension between law and power becomes acute.
The United States has never joined the International Criminal Court, the permanent tribunal established to prosecute war crimes, crimes against humanity, and genocide. American officials have long worried that the court could be used to pursue politically motivated prosecutions of American soldiers and policymakers. This concern is not entirely unreasonable—international institutions can be influenced by geopolitics—but it also reflects discomfort with external accountability.
The War Crimes Act was supposed to provide an alternative: domestic prosecution under American law, in American courts, with American constitutional protections. The United States would hold war criminals accountable without submitting to international jurisdiction.
In practice, this approach has proven asymmetric. The law's only charges to date target foreign soldiers. The narrowing amendments of 2006 were explicitly designed to shield American officials from prosecution. The promise of equal accountability has remained largely theoretical.
What War Crimes Law Is For
The laws of war serve multiple purposes that are sometimes in tension.
One purpose is restraint. By defining certain conduct as criminal, these laws aim to discourage atrocities. Soldiers who know they might face prosecution for mistreating prisoners may think twice. Officials who could be held personally liable for ordering torture may hesitate.
Another purpose is legitimacy. Armed forces that follow the laws of war can claim moral authority that lawless forces cannot. This matters for maintaining public support at home, winning cooperation from allies, and establishing the credibility needed to govern after conflicts end.
A third purpose is reciprocity. Nations agree to treat each other's captured soldiers humanely in part because they want their own soldiers treated humanely if captured. The Geneva Conventions emerged from the catastrophic experiences of two world wars, when all sides learned that cruelty breeds cruelty.
A fourth purpose, more cynical but no less real, is propaganda. Charging enemies with war crimes serves political goals regardless of whether trials ever occur. The indictment of Russian soldiers sends a message about Russian conduct in Ukraine. It costs nothing and scores points in the court of world opinion.
The Boomerang Effect
Legal weapons have a way of returning to strike those who forge them. The War Crimes Act's history illustrates this pattern with unusual clarity.
Congress created the law to pursue Vietnamese torturers. It applied it to Americans because that seemed like a costless way to demonstrate moral leadership. Then American interrogation practices moved into territory that might constitute war crimes under the law's original terms. The solution was to redefine war crimes more narrowly.
This is not necessarily hypocrisy, though critics have called it that. It may simply be the inevitable result of a nation with global responsibilities confronting the gap between ideals and operational realities. The Bush administration genuinely believed that harsh interrogation was necessary to prevent terrorist attacks. The question of whether they were right remains contested.
But the episode does reveal something about the nature of law itself. Laws are not self-executing mechanisms that apply themselves impartially to all conduct. They are tools wielded by institutions staffed by human beings with interests and perspectives. When those interests conflict with the law's plain language, the law often bends.
The War Crimes Act of 1996 remains on the books. Its provisions still theoretically apply to Americans who commit grave breaches of the Geneva Conventions. Whether any American will ever face prosecution under its terms—and whether such a prosecution could survive the political pressures that would inevitably accompany it—remains to be seen.
For now, the law stands as a monument to good intentions, unintended consequences, and the enduring difficulty of holding power accountable to principle.